IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1694 of 2005 PRAMOD KUMAR & ORS Versus MANGTU RAM & ANR ----------- 14. 18.12.2008 Heard counsel for the parties. Reference made be made to the order of this Court dated 15.10.2008, 22.10.2008 and 16.12.2008. Neither of the party has filed any objection to the report of the Advocate Commissioner as per liberty given in the earlier order. Therefore, this Court after hearing the parties on the report of the Pleader Commissioner affirms it. The Pleader Commissioner in his operative portion of the report in paragraph 10 had found the following features: “(i) The building of the petitioners is East facing opening on the main road of the town. In the ground floor shops of cloth and utensils are run which open on the main road. The building is of four floors in the rear and three in the front. The forth floor is new and still finishing of construction is on. The O.P.’s building is a part of huge premises which surrounds the petitioners’ building from north and west. This building is 2 two storied and in the first floor a branch of Bank of Baroda is situated. (ii) There is a clear cut 2 feet gap in between the petitioners’ building’s western wall and the O.P.’s wall. The western wall of the petitioner’s building has one window and one ventilator in each floor. They open outside in the 2 feet lane/ space; except that in the 1st floor which opens inside and the window in the top floor is still under finishing, the frame and window pans are absent. There is no door in this wall of the petitioners. (iii) The lane runs north to south and the southern end at the end of petitioners building is closed by wall (not a new one). The petitioners’ wall is plastered upto middle. (iv) To the west of the petitioner’s building the O.P.’s family residence is situated. (v) The petitioners building on the northern side is newly plastered however not painted. There is a 3 feet wide lane throughout the length of the petitioners’ building in its northern side. The lane runs east to west. The lane opens in the east on the main road. (vi) The northern wall of the 3 petitioners building contains two big rolling shutter doors, one 3 feet wide (small) rolling shutter door, one stair case in the middle opening with iron grilled collapsible gate which in fact is projected 1” out of the wall with capping of the grills 3” outside the wall. While the small shutter is 32 inch distant from the eastern end of the lane and is side opening of a shop, the last shutter door is 18” from the western end of the lane. The wall contains 13 windows and 15 ventilators in total. The windows open outside in the lane and do not contains any grill or net etc. However, the windows in the top floor are not complete and frame and window pans are still not fitted. (vii) On enquiry the O.P. said that although the petitioner was granted right to egress ingress through the only one existing door in the northern wall of his house for residential purposes, the petitioners have now fixed 3 rolling shutter doors for commercial purposes (shop etc.) in addition to the collapsible grill gate opening for the stair case which changes the character of the lane. (viii) For the drainage of the rain 4 water and waste water from the petitioner’s building, two pvc pipes fixed in the plaster fall from the roof along the wall and merge into one pvc pipe running along the wall in the west to east direction and finally the pipe merges into the ground at the eastern end of the lane. The pipe is thoroughly fixed with cement with the wall. (ix) There is sewerage pipe also emerging out from the northern wall of the petitioners’ building at a distance of 14 feet 2 inches from the eastern end of the lane. The pipe runs in the lane towards east. (x) There is no covered drain as such in the lane. (xi) However, there is a six inch wide open drain running west to east contiguous to the building of the O.P. in which three drain pipes (pvc) falling from the roof merge. One waste water pipe emerging from the main hall of the bank merges in the open drain at the a eastern end of the lane. No one said when the drain was constructed. (xii) On enquiry it was said by the petitioners herein that the O.P. has left the drain open whereas the O.P. said that the petitioners cause hindrance in covering the drain. 5 (xiii) The 3 feet lane is closed at the western end by a steel door. The door is so fitted that it is just after the petitioners building’s north western corner in the O.P.’s land free from any charge. Hence, so far as the width and the length of the northern and western lanes are concerned they are intact. Beyond the door is residential premises of the opposite party herein. (xiv) On enquiry the petitioners in their joint statement said that the door is fitted and is locked. However, I did not find a lock there. The O.P. said that 3 feet wide lane upon which was granted the easementary right to the petitioner, has not been disturbed, the door is essential as beyond that their family residence is situated and the lane opens on the main road. (xv) After viewing the structure, premises and keeping in mind the judgment of the high court and the second appellate court in SA 579/79, I found that when the petitioners have been granted right to easement through the northern lane from eastern corner to western corner of their building, certainly the door as it is, does not cause any hindrance in enjoying the 6 aforesaid right cover the said lane; the petitioners have no occasion to go beyond that in the residential premises of the o.p. From the security aspect also, the door is essential. (xvi) After viewing the entire structure, I found the windows of the o.p. open inside the building so I cannot say that the same and the ventilators cause any hindrance to the petitioners in enjoying their right. (xvii) So far as the drain is concerned the petitioners in their joint statement have said that the drain has been left open by the o.p. while the o.p. has said that the petitioners strongly oppose in covering the drain. As mentioned above, I could not find the age of the drain and pipes but it is essential for the sake of health and environment that it must be covered immediately. (xviii) The photographs taken (total 13 in number) are being annexed with the report in support of the findings. (xix) After inspection and recording of statements and talking to the people, I can say that petitioners are enjoying their right over the lanes as granted by the different judgments without any 7 hindrance.” From such a clear explanatory report of the Pleader Commissioner which also could not be assailed on fact by either side, this becomes clear that there is a clear existing Gali of 3 feet and therefore, the terms and conditions of the decree in favour of the petitioners is absolutely fulfilled. The only grievance made by the counsel for the petitioners that their right of easement by way of access in 3 feet Gali was restricted on account of presence of a drain has also been satisfactorily explained in the report of the Pleader Commissioner who has found the drain measuring 6 inches to be exising in that Gali but the same was not allowed to be covered by the petitioners themselves. Today counsel for the petitioners has, however, agreed that the opposite parties may cover the drain which in fact will make the Gali always available with its 3 feet width. The son of O.P.No.1, namely, Purushottam Banka is present in Court and he on behalf of his father undertakes that the 8 Gali in question with drain existing therein will not only be covered but will always remain available for the decree holder petitioner for its being used in terms of the decree. In view of such undertaking the apprehension of the petitioners as with regard to any contriction in Gali due to presence of drain is also misconceived and must be rejected. The last submission of the counsel for the petitioners that the executing court while passing the impugned order could not have gone beyond the terms of the decree has to be only noted for its being rejected. As a matter of fact on the last occasion when Mr. Kalyan Kumar Ghosh, learned counsel for the petitioner had made his submissions, he had made it clear to this Court that only reservation of the decree holder-petitioners was that the very presence and existence the Gali with its width 3 feet as per the decree had been sought to be obliterated by the impugned debtor-opposite parties but now when this aspect of the matter stands resolved in view of the report of the Pleader Commissioner the other submissions 9 made by Mr. Praveen Kumar Gupta, Advocate on record on behalf of the petitioners cannot be accepted. That being so, this civil revision application being wholly misconceived is hereby dismissed with the aforementioned observations and directions. Let the report of the Pleader Commissioner and the photographs be preserved again by putting them under sealed cover and to be retained as part of the record of the case. (Mihir Kumar Jha,J.) Surendra/