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Revision Application No. 252 of 1980, decided on 10th September, 1980.

-- S. 115-Easements Act (V of 1882), S. 4-Revision-Contention, challenging competence of authorities to convert public road into plot for disposal to private person not raised before Courts below-Not allowed to be raised before High Court in revision.

--S. 4--Easement-Applicant once seeking allotment of plot and then turning round to oppose on ground of easement conversion of sate plot from public use to private use by authorities Applicant, held, cannot be permitted to approbate and reprobate in same transaction.

--- Ss. 4 & 15/13-Easement-Right of way-Easement right having not, been acquired by prescription only other right of way could ,be claimed by way of necessity on account of absence of any other access to tenements.

-- Ss. 4 & 13-Civil Procedure Code (V of 1908), S. 115---Ease ment right-Applicant not showing from approved building plant that it was permitted to extend drainage lines beyond plot to place where easement claimed-Applicant enjoying benefit of interim orders preventing respondent from raising construction over dis puted plot for last ten years during which no steps taken for disposal of suit-Balance of convenience lying in favour of respon dent-Revision petition, held, without merit and dismissed.

Khalid Latif for Applicant.

The applicant was allotted a plot of land bearing No. 113 in Unit No. VII-D. Shah Latifabad Township at Hyderabad by the Adminis trative Committee, Shah Latifabad, Hyderabad. A Lease Agreement was subsequently executed in favour of the applicant on 8th April, 1965 and duly registered. The agreement described the boundaries of the plot as under :-

North ... ... ... 60' wide road.

South .. : ... ... 20' wide street.

East ... ... ... Plot No. 112.

West ... ... ... 40' wide Road.

The applicant after obtaining the usual sanction of his building plan raised the construction for a residential house on the plot. It is the case of the applicant that the house was constructed with main entrance, windows and drainage system towards the western side of the plot. However, the applicant came to know that the District Housing officer and Secretary, Administrative Committee. Latifabad (respon dent No. 2 herein) was with mala fide intention trying to allot the 40' wide road area towards the west of the appellant's plot as a residen tial plot: - On this the applicant protested but no heed was paid to his protest. The applicant then admittedly moved for the allotment of the said area to her in preference to respondent No. 1 on 26th November, 1969 but with no result. It seems from the record that the area on the western side of the applicant's plot was allotted to the first respondent as a building site on 18th April, 1970.

On 18th May, 1970 the applicant was served with a notice by respondent No. 2 alleging that the applicant had encroached upon land of ,plot No. 114,D-VII (the area towards the west of the applicant's plot) which had been allotted to the first respondent by Commissioner, Hyderabad, by constructing staircases and leading drainage lines thereon, as well as opening a door and windows towards the said plot. The applicant was called upon to remove the aforesaid encroach ment. Thereupon the applicant filed F. C. Suit No. 17/71, for perma nent injunction to restrain the first respondent nut to raise any con struction over plot No. 114 which according to the applicant constitutes 40' wide -road and not to interfere in the enjoyment of her property by the applicant. It was also prayed that orders passed by the Deputy Commissioner and Additional Commissioner on the applications of the applicant be declared as void.

Simultaneously, on the filing of the suit the applicant prayed for grant of temporary injunction to restrain the first respondent from raising construction over the disputed plot of land and from interfering in the easement right of air and light enjoyed by the plaintiff by blocking the main entrance, windows and ventilators. It was stated at the bar that ad interim orders were passed, but finally by his order dated 11th November, 1971 the learned Civil Judge First Class, Hyder abad dismissed the application. The appeal filed by the applicant was also dismissed by the learned Additional District Judge vide his judgment dated 9th August, 1980 whereby he maintained the order passed by the trial Court. The applicant seeks to challenge the judgment and order passed by the Courts below in this revision.

I have heard Mr. Khalid Latif appearing for the applicant and have perused the order passed by the trial Court and the judgment of the Appellate Court. Before the Courts below the applicant had pressed his case on the ground of easement rights, but the learned counsel before me rightly concedes that since the house was constructed by the applicant after 1965, he would not press the case on the ground of easement rights. He, however, placed strong reliance on the Lease Agreement and contended that on the western boundary of the appli cant's plot is shown as road and, therefore, the official respondent had no authority to allot it as a residential plot to the first respondent. The submission was that the conversion of a public road into a plot for -the purposes of private use was not within the competence of the official respondents so as to adversely affect the rights of the applicant. In the first instance, the counsel was unable to point out from the pleadings of the applicant any such plea having been raised. This contention was not also raised before the Courts below challenging the competence of the authorities to convert a public road into a plea for disposal to a private person. It, therefore, appears to me that a new case is being set up in this Court which is not permissible. Addition ally the Courts below had pointed out that the applicant has no right to challenge the status of the disputed plot in view of the fact that she had herself applied for its allotment. Learned counsel argued that the applicant was constrained to apply for the allotment of the plot as was being disposed of as a residential plot. Whatever be the position, for the present purpose, it is sufficient to state that the applicant cannot a prima facie be permitted to approbate and reprobate in the same transaction by once seeking allotment of the plot in question and the turning round to contend that the conversion of the plot from public use to ,private use was not permissible in law.

It was next contended by the learned counsel that the applicant has a right of way on the disputed land as a public road which cannot be denied to her. This contention has been appropriately dealt with by the Courts below and it has been stated that the site inspection shows that the applicant's plot has access through .the main gate which opens towards the road on the northern side. From the Lease Agreement it appears that the frontage of the plot seems to be on the northern side on which side is widest road of 60. Learned counsel placed before me the approved building plan which also shows the main gate on the northern side. Since there is no question of easement right acquired by prescription, prima facie the only other right of way could be claimed c be way of necessity on account of absence of any other access to applicant's tenement,. However, on the present record there is no prima facie evidence to that effect.

On being questioned as to by what right the applicant is seeking to restrain the first respondent from the use of his property, the counsel contended that there is no violation alleged by the authorities of the building plan and, therefore, it must be presumed that the door, windows and drainage lines existing on the site are according to the building plan. However, the counsel was unable to point out on the sanctioned building plan produced for my inspection the existence of any staircase or drainage lines extending towards the disputed plot. It may be pointed out that in para. 9 of the Lease Agreement the lessee was bound not to make any excavation or effect any alterations or additions to the approved plan of building without the consent in writing of the lessor. According to para 19 of the Agreement the building plans were required to show the position and dimensions of all projections beyond the main wall of the building the position of all proposed drains, privies, latrines, urinals and cess-pools and the position of drainage, receptacles, ventilators, drain connections and sweeper's doors. In view of these requirements appears that in order to make out a prima facie case that the applicant was permitted to ex tend his drainage lines beyond her plot she should have been able t produce something. from the approved building plan to support her case. In any case the respondent No. 4 while rejecting the applicants appeal on the administrative side had observed that care should be taken not to affect the ventilation of the applicant's house while ' approving the construction plan of the first respondent.

Finally I also agree with the learned 1st Additional District Judge that the applicant had enjoyed the benefit of the interim orders wit the result that during the last about 10 years the first respondent ha been prevented from raising construction, over his plot. I may add that it was sufficient time for the applicant to have taken steps for the disposal of the suit. The balance of convenience is clearly, therefore, on the side of the first respondent.

For the aforesaid reasons, there is no merit in this revision appli cation. While, therefore, dismissing the same in limine I would direct the trial Court to dispose of the suit expeditiously. It is further clarified that the trial Court shall be free to decide the case on merits uninfluenced by any observations made in this order touching the merits o the case:

M. Y. H. Petition dismissed,

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