Customary right of way and easementary rights upheld, with injunction granted against continuing obstruction.
Long, open and uninterrupted user of a passage, supported by boundary recitals in the pattas, was treated as recognition of a customary right of way rather than permissive use, so the obstruction amounted to substantial interference with passage and drainage rights and justified removal of encroachment and injunctive relief. The suits were also held maintainable without the Advocate General's consent because they asserted independent rights of neighbouring residents, including passage and related easementary interests, and were not confined to a mere public nuisance. Special damage was alternatively shown. The appellate dismissal was reversed and the trial court's decrees were restored.
Issues: (i) whether the plaintiffs established a customary right of way over the disputed land and the allied easementary rights claimed in the first suit, and whether the obstruction warranted demolition and injunction; (ii) whether the suits were barred for want of consent of the Advocate General under Section 91 of the Code of Civil Procedure, 1908.
Issue (i): whether the plaintiffs established a customary right of way over the disputed land and the allied easementary rights claimed in the first suit, and whether the obstruction warranted demolition and injunction.
Analysis: The evidence, both oral and documentary, showed long and uninterrupted user of the land as a passage by the residents of the adjoining localities. The pattas describing the boundary as a passage supported the inference that the right of way had been recognised by the grantor itself. The Court held that the user was as of right and not permissive, and that the obstruction caused substantial interference with the plaintiffs' rights of passage and drainage. The circumstances did not justify refusal of a mandatory injunction, as the suit had been promptly instituted and the encroachment was of a continuing nature.
Conclusion: The plaintiffs succeeded in establishing the right of way and the related easementary rights, and were entitled to removal of the encroachment and injunctive relief.
Issue (ii): whether the suits were barred for want of consent of the Advocate General under Section 91 of the Code of Civil Procedure, 1908.
Analysis: The Court held that the suits were not confined to a mere public nuisance. They involved the vindication of independent rights of the immediate neighbours and the residents of the surrounding mohallas, including rights of passage and, in the first suit, light, air and drainage. On that basis, the plaintiffs could maintain the suits without the Advocate General's consent. Even on the alternative footing of special damage, the plaintiffs had shown sufficient special injury.
Conclusion: The suits were maintainable without the consent of the Advocate General.
Final Conclusion: The appeals succeeded, the dismissal by the first appellate court was reversed, and the trial court's decrees granting relief to the plaintiffs were restored.
Ratio Decidendi: A suit is maintainable without the Advocate General's consent where the grievance is not a mere public nuisance but the enforcement of an independent private or sectional right of way, and long, open, and recognised user may establish a customary or prescriptive right of passage enforceable by injunction against obstruction.
TaxTMI 
AI Drafter ✕
TaxTMI 
TaxTMI 
