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created Mar 1st 2019, 02:20 by amit12
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(20) The findings of the trial Judge that the portion on the southern side of the common passage shown as Gaddi and marked red and yellow in the plan (Exhibit P/l) was part of the tenancy of the defendants is also, in our opinion, correct. The contention of the learned counsel for the plaintifis was that possession of only a portion of Gaddi was given to the defendants and as the only portion of the premises which could be regarded as Gaddi was towards the southern side of the common passage, therefore, possibly only one of the parts of the said Gaddi could be part of the tenancy. The portion shown in yellow colour in the plan (Exhibit P/l ) was alleged to have remained in possession of the plaintiffs till March 7, 1953 when unlawful possession of it was said to have been taken by the defendants. The finding of the trial Judge that portion of the Gaddi meant both the parts shown in red and yellow colours in the plan (Exhibit P/l ) was stated to be contradictory in nature.
(21) Normally a Gaddi means the seat used for doing business as distinguished from godown or portion of a premises used for other purposes and it is generally on the front side of a building. The portions on the northern side and the southern side of the common passage are similarly situated and equally suitable for Gaddi. The only difference was that in the portion on the southern side there was no wall towards the passage side.
(22) Merely because in the plan attached to the plaint only the portion on the southern side of the passage was shown as Gaddi it did not mean that the portion on the northern side did not have the characteristics of a Gaddi. If anything it was more suitable for that purpose,. having a wall to separate it from the common passage, with iron bars and a door in that wall, and also having been provided with a safe.
(30) In allowing damages at the rate of Rs. 100.00 per month for the period the plaintiffs and the occupants of the Gaddi towards the north of the common passage were deprived of its use the court below took into consideration the fact that by sub-letting one of the godowns the defendants could realise Rs. 250.00 per month. The contention of the plaintiffs that the common passage could fetch Rs. 200.00 per month was considered to be an exaggerated estimate. It seems to us that allowing damages at Rs. 100.00 per month was fair and in the circumstances of the case in no way unreasonable. There is no justification for enhancing the rate of damages beyond Rs. 100.00 per month, as desired by the plaintiffs, (31) So far as the nature of possession of the defendants of the two godowns and the Gaddi was concerned it was not disputed before us by Shri H. R. Sawhney, learned counsel for the plaintiffs, that the defendants could be regarded to be in possession as tenants from month to month. It was only urged that the portion of the Gaddi of which possession had been given to the defendants merely comprises the red part as shown in the plan (Exhibit P/l). We have already held above that the red and yellow parts together formed the portion of the Gaddi of which possession was given to the defendants along with the godowns.
(61) Due to the complaint filed by the defendants, under section 145 of the Code of Criminal Procedure, against the occupiers of the portion of Gaddi towards the northern side of the common passage those persons could not use the passage from March 7, 1953 to March 18, 1957. During that period the iron door from the common passage towards that portion remained sealed under orders of the Magistrate concerned. The defendants may have, therefore, been guilty of trespass but their conduct cannot be regarded to amount to nuisance or annoyance. In Halsbury's Laws of England (Third Edition-Volume 28 page 127) the distinction between nuisance and trespass was. pointed out in the following words :-
(21) Normally a Gaddi means the seat used for doing business as distinguished from godown or portion of a premises used for other purposes and it is generally on the front side of a building. The portions on the northern side and the southern side of the common passage are similarly situated and equally suitable for Gaddi. The only difference was that in the portion on the southern side there was no wall towards the passage side.
(22) Merely because in the plan attached to the plaint only the portion on the southern side of the passage was shown as Gaddi it did not mean that the portion on the northern side did not have the characteristics of a Gaddi. If anything it was more suitable for that purpose,. having a wall to separate it from the common passage, with iron bars and a door in that wall, and also having been provided with a safe.
(30) In allowing damages at the rate of Rs. 100.00 per month for the period the plaintiffs and the occupants of the Gaddi towards the north of the common passage were deprived of its use the court below took into consideration the fact that by sub-letting one of the godowns the defendants could realise Rs. 250.00 per month. The contention of the plaintiffs that the common passage could fetch Rs. 200.00 per month was considered to be an exaggerated estimate. It seems to us that allowing damages at Rs. 100.00 per month was fair and in the circumstances of the case in no way unreasonable. There is no justification for enhancing the rate of damages beyond Rs. 100.00 per month, as desired by the plaintiffs, (31) So far as the nature of possession of the defendants of the two godowns and the Gaddi was concerned it was not disputed before us by Shri H. R. Sawhney, learned counsel for the plaintiffs, that the defendants could be regarded to be in possession as tenants from month to month. It was only urged that the portion of the Gaddi of which possession had been given to the defendants merely comprises the red part as shown in the plan (Exhibit P/l). We have already held above that the red and yellow parts together formed the portion of the Gaddi of which possession was given to the defendants along with the godowns.
(61) Due to the complaint filed by the defendants, under section 145 of the Code of Criminal Procedure, against the occupiers of the portion of Gaddi towards the northern side of the common passage those persons could not use the passage from March 7, 1953 to March 18, 1957. During that period the iron door from the common passage towards that portion remained sealed under orders of the Magistrate concerned. The defendants may have, therefore, been guilty of trespass but their conduct cannot be regarded to amount to nuisance or annoyance. In Halsbury's Laws of England (Third Edition-Volume 28 page 127) the distinction between nuisance and trespass was. pointed out in the following words :-
