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Petitioner: Mehr FAZAL ILAHI AND 2 Other VS Respondent: MUHAMMAD ASHRAF
Court Name: Lahore High Court Judge(s): Karam Elahi Chauhan Title: Mehr FAZAL ILAHI AND 2 Other vs MUHAMMAD ASHRAF Case No.: Regular Second Appeal No. 869 of 1966 Date of Judgment:1969-12-16 Reported As: PLD 1970 Lahore 664 Result: Appeal accepted
JUDGMENT
JUDGMENT Mehr Fazal Elahi, Subeh Sadiq and Allah Ditta (hereinafter called the plaintiffs) filed a suit for a permanent injunction against Muhammad Ashraf (hereinafter called the defendant) to restrain him from demolishing the wall of his, house (i.e., defendant's house) and plaintiffs' khurlis and from opening of doors and windows therein. The wall in question was towards --the hind side of a blind alley which shot off from a main road situated towards the East and closed at the place where the hind side of the wall of the house of the defendant was. The: house of the defendant, it may be mentioned, had an access not from this blind alley, but from just the opposite side on the west` and the said wall constituted on the back portion of his house. In the blind alley, towards the back portion of the wall, of the house of the defendant, the plaintiffs had made certain-- khurli or khurlis and the intention of the defendant to open doors and windows on that side caused a threat to the said khurlis of the plaintiffs. The case of the plaintiffs was that the street in dispute was a sort of blind street which ended at the --back side of the house of the defendant and was meant for the-- -use of the inhabitants of that street alone. The learned Civit Judge holding that the said alley was a blind alley and was not a public street, issued the permanent injunction prayed for by the-- plaintiffs by means of his judgment and decree, dated the 4th of March 1966. 2. The defendant filed an appeal and the learned Additional District Judge, Gujrat, reversed the finding of the learned trial Court and holding that the street in question was a public street in -- which the plaintiffs could not assert any exclusive right, dismissed their suit. The plaintiffs have come up in second appeal to this Court. 3. The important question which is involved in this case is as to whether the street in question is a public street or not. The main features of this street are that
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(a) it is a small Gali, 147 feet long and 12 feet wide; (b) it is blocked towards the end and is a blind alley, which is, known in legal parlance as cut de sac; (c) there are in all about seven houses on both sides, of the lane, four being on the left and three being on the right side; (d) there are two nalis one on each side of the street which, were made initially by the owners of the houses but were later, on made by the Municipal Committee, Gujrat, on the request. Of one of the alleged neighbours. (See statements of P. Ws. 3 and 6 and D. W. 5); (to be read with application Exh. D. 1. Filed by one Muhammad Din (not produced) and order of the. Chairman on it Exh. D/2 and plan Exh. D. 3); (e) there is a Municipal Bulb affixed at the beginning o f this-- lane where it shoots off from the main lane. This bulb was affixed and is maintained by the Municipal Committee. In the lane itself there is a private bulb of Ch. Bahadur A.I owner of' House No. 7 (as per P. W. 6); (f) it is a katcha galli, and there is no pavement; (g) according to D. W. 5, Gulzar Hussain Overseer, the-- cleanliness of the street and the nalis is looked after by the: Municipal Committee; and (h) from the evidence of plaintiffs' own witness Muhammad Hussain (P. W. 1), it has come on record that there is no gate at the beginning of this gali and there are restrictions on the entry of any person. 4. Learned counsel for the plaintiffs-appellants argued that from the above circumstances, it was clear that the alley in question was a cut de sac i.e. a blind alley. He submitted in general that a blind alley can never be a public street. This is not correct. Reference may be made to Souch v. East London Railway Company (1), where the question of a cut de sac in a town being a public street came up for consideration. Sir R. Matins, V. C., held as follows:- "I was astonished to hear any argument going to the extent that a cut de sac is not just as much a public highway or public street as any other street. There are plenty of cut de sac in London, such as Ely place, Bartlett's Buildings, and Thavies Inn, in Holborn, Stratford Place in Oxford Street, and Stratton Street in Piccadilly, each of which is just as much a public street as any street which is a thoroughfare. A cut de sac has frequently been decided to be a public highway. These houses have been built more than twenty years, and the passage has been left open to the public, who have beer allowed to enter night and day whenever they thought fit. That amounts to a dedication to the public, and it makes a way or street so opened a public one. I apprehend, and I am perfectly clear in my opinion, that the company have just the same right over it as they have over any other street running out of Victoria Street, under which they are empowered to carry their line." 5. When confronted with the above law, learned counsel for the plaintiff-appellants argued that the owners of the houses on both sides of the lane including his clients had themselves left out the street as a passage solely for their own use and access and that passage left in this way can never be a street especially when it is a cut de sac. The owners on the left side of the street are ((1873) 16 E C 108) Muhammad Hussain (who owns house No. 4), (2) Ahmad Din (who owns house No. 5), (3) Nizam Din (who owns house No. 6) and (4) Ch. Bahadur A.I Khan (who owns house No. 7). On the right side are (1) Ch. Allah Ditta (who owns house No. 3. He is brother of Abdul Aziz P. W. (3), (2) Mehar Fazal Elahi plaintiff (who owns house No. 2) and (3) Ashiq Hussain son of plaintiff Fazal Elahi (who owns house No. 1). The sale-deed with regard to the house of Muhammad Hussain, owner of house No. 4, hereinbefore mentioned, is Exh. D. 6 and is dated 25-8-1948. It shows while describing the boundaries of the property sold to Muhammad Hussain that towards the North, there is a "street", Exh. D-7 is a sale-deed in favour of Allah Ditta, Abdul Aziz (P. W. 3) and Abdul Majid and is dated 8-7-1948. In this sale-deed also it is described that towards the South, there is a "street". Exh. D-8 is a sale-deed by Mst. Karam Bibi in favour of Nizam Din about Plot No. 6 and is, dated 14-6-
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1946. In this sale-deed also it is described that towards the North there is a "street" twelve feet wide. It is a common ground between the parties that the street mentioned in the aforesaid three documents is no other than the one in question. These documents will show that from as far back time as 1946 there existed a street on the spot in between the plots over which the owners later on built houses. The plea of the plaintiffs that they are owners of the adjoining houses had left the street therefore, is not correct because the plaintiffs, according to their own showing, had purchased just an open site from Mst. Karam Bibi and it has not been contended before me (much less proved in the case) that any portion of the street in question formed part of the plot purchased by them or by the adjoining owners. The status of the lane in question, therefore is established both from oral as well as documentary evidence on the record as that of a "street", but as we shall be presently seeing, this however, is not the end of the matter. 6. At this stage learned counsel for the plaintiff's-appellants has raised another argument. He submits that at the time when the sale-deeds Exhs. D-6 to D-8 were executed, i.e. In the year 1946 and 1948, the law in force was the Punjab Municipal Act 3 of 1911 (hereinafter called the Act). In the said Act in section 3 (3) the word "street" at the relevant time was defined as follows:- "Section 3 (13) (a) `Street' shall mean any road, footway, square, Court, alley, or passage, accessible, whether perma--nently or temporarily to the public, and whether a thoroughfare or not; and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post, chain or other barrier, if house, shops or other buildings about thereon, and if it is used by any person as a means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not, but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid; and shall include also the drains or gutters therein, or on either side, and the land, whether covered or not by any pavement, verandah or other erection, up to the boundary of any abutting property not assessible to the public." The word "public street" in the same subsection was defined as follows:- (b) "public street" shall mean any street- (i) heretofore levelled, paved, metalled, channelled, sewered or repaired out of municipal or other public funds, unless before such work was carried out there was an agreement with the proprietor that the street should not thereby become a public street, or unless such work was done without the implied or express consent of the proprietor; or (ii) which, under the provisions of section 171, is declared by the Committee to be or under any other provision of this Act becomes, a public street." Keeping these two definitions in view, learned counsel argued that the methods of proving a "public street" were:- (a) that the passage or lane etc., should first be a street as defined above. (b) He further submitted that the first method of making a street, a public street, is that it should be such a street which was prior to the enforcement of the Punjab Municipal Act, 1911, levelled, paved, metalled, channelled, sewered or repaired out of the municipal or other public fund. (c) The second method was that it should be such a street which under the provisions of section 171 of the Punjab Municipal Act, 1911 was declared by the Municipal Committee to be a public street. (d) And the third method was that under any other provi--sions of the said Act it became a public street. In this method fall the provisions of sections 169, 170, 170-A, 170-8, 170-C, 170-D, 170-E, 170-F and 171 of the Punjab Municipal Act, 1911, which laid down as to how in future new streets or public streets could be laid by a Municipal Committee.
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7. Learned counsel for the plaintiffs-appellants then argued that there was still a fourth method of proving that a street was a public street and that was by showing that the public have had a right of way in it. To this general enunciation of law, even the learned counsel for the defendant agreed and both sides pleaded that the right of way of the public may be established by dedica--petition, either express or implied from its long user. Since lot of arguments were consumed over this subject, therefore, I proceed to examine the case from this aspect. However, I may state that in this context a distinction is to be drawn between a place being accessible to public on the one hand, and place over which the public have a right of way on the other. The latter will include the former, but not the vice versa. In Muhammad Rustam A.I Khan and another v. Municipal Committee of Karnal City (AIR 1920 P C 43), it was observed that:- "In order to constitute a valid dedication to the public of a highway by the owner of the soil there must be an intention to dedicate, there must be an animus dedicandi of which the user by the public is evidence and no more." To the same effect is Jatindra Nath Borat and another v. Corporation of Calcutta (AIR 1931 Cal. 433) where at page 434 it was held as follows:- "Before private land can become a public street or passage it must be made so by statute or be dedicated specifically by the owner to the use of the public or there must be circumstances from which such dedication can be presumed." It was further observed in the said case that:- "Dedication may be inferred from user by the public but it is difficult if not impossible to establish a public right of way over a cul de sac by evidence of user alone without proof that public money has been spent upon it: Bourke v. Davis (1890) 44 Ch. D 110 (a concept to which I will advert later) (this bracket is mine). A public highway must prima facie lead from one public place to another. A cul de sac may be a public highway but its dedication will not be presumed from mere public user without evidence of expenditure on the place in dispute for repairs lighting or other matters by the public authority. Attorney-General v. Antrobus (1905) 2 Ch. D 188, White House v. Hugh (1906) 1 Ch. D 253, armed in (1906) 2 Ch. D 283. The following passage in Rana Ganpat Singh v. Kangra Valley Slate Company (62 P R 1898) is also instructive on the subject:- "By the law of England public rights over a highway rest upon a dedication express or presumed from user by the public. The whole is pithily summarized in the following passage in Dart on Vendors and Purchasers, 6th Edition, Volume I, page 411. `A road may be a common highway even, though it is only occasionally used by the public, or is circuitous or does not terminate in a town or in some other public road, and a very, short continuous user of it by the public openly, and as if right is sufficient to raise a presumption of its dedica--petition to their use, but the presumption may be rebutted by .Evidence of the owner's intention that the public should only ,have a permissive user as, e.g. By his arbitrarily closing the way for one day in each year or by showing that the state of the title was much that a binding dedication was impossible, .But mere non-user for any number of years will not destroy or ,prevent the public from resuming the right to a public way, though it may be evidence that no such right ever existed. The soil of a road, whether public or private, usque ad medium filum via, is presumed to belong to the adjoining owners . . . . " In Smith's Leading Cases,. Volume II, 9th Edition, page 165, the mode of creation of public highways is thus stated: `Except where this is done by the express enactment of the Legislature, .It derives its existence from a dedication to the public by the owner of the land over which the highway extends of a right of passage over it, and this dedication, though it be not made in express terms as it indeed seldom is, may and will be presumed from an uninterrupted use by the public of the right of way claimed.' In Rugby Charity v. Merry Weather (II Ea., 37 bn), a period of six years' user was held sufficient proof of dedica--petition. In Queen v. Pettric, &c., 24 L J R Q B 167 and Powers v. Bathurst,
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49 L J Rep. Ch. 294, it was laid down that .An open user as of right by the public raises a presumptive inference of dedication requiring to be rebutted and that the onus of displacing the presumption lies on the person seeking to deny the inference from the public user. In Woodyer v. Hadden :(5 Taunt 12) Chamber, J., said: `No particular time is necessary for evidence of a dedication. If the act of dedication is unequivocal it may take place immediately. For instance, if a man. Builds a double row of houses opining into an ancient street at each end making a street and sells or lets the houses that is instantly highway'. The above principles have been held to apply to India, being founded on reason and commonsense and conducive to public convenience. In J. Anderson v. Juggodumba Debi 6 C L R 282, the presumption in regard to dedication from user were held to govern a case from the mofussil in Bengal. In Nihal Chand v. Azmat A.I Khan I L R 7 All. 362 the rule about ownership of land of disused highways was followed. So also .In regard to obstructions of public roads the remedial provision of English law have been held to regulate this right of suit." 8. Coming now to the facts of this case, there is no evidence of any express dedication by anybody. We have, therefore, to see as to whether any implied dedication to public having a sight of way over this lane can be inferred from any long user. I must say that no evidence of any long user has been brought on record and the most that defendant obtained in cross---examination from one of the plaintiffs' witnesses Muhammad Hussain (P. W. 1) was that there was no gate or Chowkidar at the entrance point of the lane, and that there was no restriction over entry. This to my mind hardly proves any long user. All it means is that the lane is accessible to public, but whether the: public have been exercising any right of way over this street anal for how long a time and for which purpose have not been established. The burden of proving this matter which formed issue No. 2 in the case was on the defendant, but he has not led any evidence on this point, and it is obvious that factual matter of this nature cannot be left to mere conjectures and surmises. In Vine v. Wenham, a similar situation cropped up and Sargant, J., held as follows:- "Coming to the main question-the right of user of the passage claimed by the defendant -----his Lordship stated the history of the passage, and continued: Now, as regards this, claim, it is a remarkable thing that no single witness was called by the defendant to prove any user of the road by any member of the public as such. This is a most unusual circumstance in a case where a public right has been pleaded. It is perhaps almost unique. Further, the difficulties in the way of showing that a cul de sac has been dedicated to the public have often been pointed out, and though in the recent case of Hull Corporation v. North-Eastern Railway (1914) ente, 329;. (1915) 1 Ch. 456; affirmed, ente, p. 905, I did come to the conclusion that a cul de sac had become a public highway, the-- case there differed in almost every particular from the present case. Here it seems to me that it would be contrary to plain commonsense to draw the conclusion that the plaintiff Walis-was going beyond the provision of a work required by the: Corporation, and endeavouring to turn this accommodation passage into a general highway. And I may add that in a comparatively recent case, of White v. Grand Hotel, Eastbourne, Lim (1912) (reported) on other points, 82 L J Ch. 57; (1913)-- 1 Ch. 113, Mr. Justice Joyce declined to find a right of public highway over a back passage much broader and much more generally used than the present passage. In my opinion the claim of the defendant to establish a public right of way over, the passage entirely fails." Relying on the above principle and finding no evidence of public having a right of way over this lane and no instance having been brought on the record in this respect, I am constrained to hold that the defendant has not been able to prove that the lane in question is a public street. Learned counsel for the defendant---respondent cited White v. Cubit ((1930) 1 K B 443), Manuda Mudali and another v. Nallaya Gounden and others (I L R 32 Mad. 527), Rana Ganpat Singh v. Kangra Valley State Company, J. Anderson v. Juggodumba Debi, Kumman and another v. Sujan Sirgh (AIR 1938 Lah. 619) and Mst. Resham and another v. --Matu Ram and another (AIR 1934 Lah. 936.), on the
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point of public streets but apart from the fact that the facts and circumstances of those cases were different, a marked point of difference is that in all those cases, on factual plain, abundant evidence of long user had come on the record which is not present here. At this stage, learned counsel for the defendant referred to Naba and others v. Piara Mal and another (44 P R 1912), where a cul de sac shooting off from a main road was held not to be a common entrance of the owners of the houses in that lane. That case is a decision on what is a "common entrance" from a street. No doubt in that case reference is made to the definition of "street" but that is considered in contradistinction to a common entrance and passage. Moreover, there is no discussion of the kind involved in this case, namely, the point of difference between a place accessible to public on the one hand, and a place over which public have a right of way on the other hand. Again in that case, it was found as a fact that the public have been using the cul de sac, as of right, as a way, for a long time-a feature which has not been established here. To give detail of the matter, the defendant produced six witnesses in the case and himself made a statement as D. W. 7. D. W. I was Muhammad Sharif. Even though it is a common-ground that the lane in dispute is a katcha gall, he deposed that in his opinion the gall was a paved one, wbich is nobody's case. He made no state-- ment that he had seen the public going into or coming out of this street or exercising any right of way over it or using it as a way. D. W. 2 is Nazir A.I, a line-man of WAPDA. While giving boundaries of the lane in question, he deposed that towards its east was a graveyard, which is not correct because this is not shown in any of the plans brought on the record. He was produced to depose that he was once deputed to set right the electric bulb of the street, but he could not say as to whether the gall was a paved or not. He also made no statement regarding any member of the public having been seen by him using or passing over or exercising any right of way over this gali. D. W. 3 was Ch. Muhammad Akhtar, Light Inspector of Municipal Committee, Gujrat. He also made no statement of any public user. D. W. 4 is Syed Gulzar Hussain, Overseer, who appeared also as D. W. 5. His position is also the same except that he stated that on the application (Exh. D. I), nalis were constructed by the Municipal Committee. He made no statement of any public man having ever been seen by him using this gali as a way. D. W. 6 was Ata Muhammad, a previous tenant of the defendant. He too made no such statement and, lastly, the position of the defendant himself as D. W. 7 is also the same. He uttered not a single word to the effect that he had seen any public man ever using this gall as a "way". In the face of this total vacuum of evidence of public user, it is not justified to give a verdict in favour of the defendant so as to hold that the gali has become a public street by long user. 9. As against the above learned counsel for the defendant referred to Basic Democracies Order 18 of 1959 (hereinafter called the B. D. O.) and stated that the following words have been defined therein as follows :- "(a) `Street' is defined in section 3(42) as follows:- `Street' includes a street which is not a thoroughfare; (b) `Public street' is defined in section 3(33) as follows:- `Public street' means a street maintained by the Government, or by a local council or other local authority;" (c) `way' is define) in section 3(56) as follows:- `way' includes a footway, square, Court, alley or passage accessible to public, whether a thoroughfare or not. (d) `Public way' is defined in section 3 (34) as follows:- "public way' means a way maintained by the Government, or by a local council or other local authority;" After referring to the above definitions, he then referred to section 3 (2) of the Municipal Administration Ordinance X of 1960, where it is written that, "words and expressions used but not
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defined in this Ordinance shall, unless the context otherwise requires, have the meaning assigned to them in the Order," (i.e. The B. D. O.). With these premises, learned counsel for the defendant- respondent submitted that a "street" which is maintained by Government, by a local council or other local authority, is a "public street". He further submits with reference to the above law, that since in this case there is affixed a municipal bulb at the entrance point of the gall and because on each side of the gall there are pakka nalis, which are sewered by the Municipal Committee, and the gali is cleaned by the Municipal sweeper, therefore, the gal! Is a public street. I may here refer to certain extracts from Manual of Municipal Administration Law and Practice, Part I (1967 Edition) by Masud-ul-Hasan. At pages 436-37, the learned author, while giving commentary on sections 80 to 82 of the Municipal Administration Ordinance and dealing generally with the subject of streets and public streets, writes under the head, "Object and Scope" at page 436 as follows:- "Sections 80, 81 and 82 deal with the important subject of streets. The Municipal Administration Ordinance envisages two types of streets, namely, public streets and streets. Public streets are the streets maintained by the Municipal Committee or any other public authority. Streets not thus maintained are just streets. The provision of public streets is a compulsory function of Municipal Committees. It does not mean that every street in…
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