Aasu Singh and Another vs Tej Singh and Others

Kailash Chandra Joshi

This civil second appeal preferred by appellants-plaintiffs is directed against the judgment and decree dated 28.03.2011 passed by learned District Judge, Merta in Civil Appeal No. 31/2006 dismissing the appeal filed by the appellants-plaintiffs against the judgment and decree dated 6.10.2006 passed by learned Civil Judge (Senior Division), Merta in Civil Original Suit No. 68/2000 (55/1999), whereby the suit for permanent injunction filed by the appellants-plaintiffs was dismissed. The brief facts of the case are that the appellants-plaintiffs filed a suit for permanent injunction against the respondents-defendants stating inter alia that there is a bada of plaintiff No. 1 Aasu Singh situated in Khasra No. 13 in village Panchdoliya Khurd measuring 1/2 bigha. The plaintiffs got Khatedari rights over the said bada in the year 1980. The exit of that bada is towards the north side, which leads to the public way through Khasra No. 28. The plaintiffs are using the disputed way for last 30 years. According to the plaintiffs, the neighbours Arjun Singh and Amar Singh also use the same passage to reach the main road. It has been averred that at the time of settlement, certain land including the disputed way acquired by the government and the same was mutated in the name of government and the said property still exits as non-cultivating property. However, the defendants manipulated the revenue record in connivance with concerned Patwari and mutated the land in their favour, for which, the plaintiffs already initiated proceeding before the competent court. It is alleged in the suit that the defendants with the ulterior motive are adamant to obstruct the disputed public way. It was prayed in the suit that defendants may be restrained from causing any hindrance and closing or disturbing in the peaceful usage of the disputed way.

The defendants filed written statement and submitted that though the bara of plaintiffs is situated in Khasra No. 13 but he has encroached upon 11/2 bigha of land and they are not using the disputed way for last 30 years. It was further averred that Khasra No. 13 is having total 10 bigha of land, out of which 5 bigha is allotted to different khatedar whereas the remaining land is still lying vacant. The plaintiff can use that land for the purpose of way to reach their bara. The defendants averred that they are having possession over Khasra No. 28 and there is no way in this land. The defendants made averments in regard to the presence of alternative way and stated that towards the north side of Khasra No. 13, there is a way which can be used by the plaintiffs. They finally prayed for rejection of the suit.

On the basis of the pleadings of the parties, the learned trial court framed as many as five issues and recorded evidence of both the parties. After hearing the arguments of the parties, the learned trial court dismissed the suit of the appellants-plaintiffs vide judgment and decree dated 6.10.2006, against which the appellants-plaintiffs preferred an appeal before the learned lower appellate court. The learned lower appellate court vide the impugned judgment and decree dated 28.3.2011 dismissed the appeal and affirmed the judgment of the learned trial court. Hence, the appellants-plaintiffs have preferred this second appeal.

The learned counsel for the appellants-plaintiffs contended that whole approach of the learned courts below was perverse and the judgments and decrees passed by them are without consideration of the facts and law applicable to the case and perverse to the material available on record.

The main contention of the learned counsel for the appellant is that the learned trial court as well as the first appellate court dismissed the suit as well as the first appeal solely on the ground of contradictions in nazari naksha ''ka'' and the map prepared by the Commissioner. The learned counsel for the appellant further contended that the first appellate court committed grave error while deciding the first appeal because the first appellate court has not decided the first appeal as per the provisions of Order 43 of the Civil Procedure Code.

The learned counsel for the appellants further contended that learned court below erred in dismissing the suit on the ground of availability of alternative way whereas the respondents have not produced any material witness or neighbours before the trial court to make the statement about the alternative way adjoining to his field and reaches to field of appellants. It is further contended by learned counsel for the appellants that the findings on issues No. 1 & 2 are perverse and against the material available on record.

The learned counsel for the appellants-plaintiffs has proposed following substantial questions of law in the memo of appeal.

(i) Whether the learned appellate court has committed material illegality in dismissing the appeal on the sole ground of minor difference in site map Exhibit-1 and commissioner''s report Exhibit-3?

(ii) whether the learned appellate court has committed material irregularity in ignoring the grounds of appeal and because of that justice could not be awarded to plaintiff?

(iii) Whether the learned courts below have misconstrued the documents Exhibit 1, 3 and 5?

(iv) Whether the learned trial court has committed error by diverting itself from the real controversy in question by framing improper issue No. 3 and the learned appellate court committed error in ignoring this important aspect of matter?

(v) Whether the learned appellate court has not considered the evidence of the appellant, being a fact finding court?

(vi) Whether the learned trial court has committed error in holding availability of alternative way in the absence of substantial evidence?

(vii) Whether the learned courts below have wrongly placed the burden to prove question of alternative way on the plaintiff though it was pleaded by defendants and committed material perversity in deciding issue No. 3?

(viii) Whether the learned appellate court mechanically confirmed the findings of the trial court and upheld the judgment of the learned trial court dismissing the suit?

(ix) Whether the findings arrived at by both the courts below is manifestly unreasonable and unjust one in the context of evidence on record?

(x) Whether the judgment and decree passed by the learned courts below is sustainable in law when there is a substantial defect in procedure in discussion matter which are extraneous and not raised in the pleadings of the respective parties?

(xi) Whether the court below and appellate court have wrongly exercise their jurisdiction and committed serious substantial error of law in deciding the issue No. 2, 3 & 4 because of which the justice has not been awarded to plaintiff-appellant?

(xii) Whether the documents produced before the court below were properly examined?

(xiii) Whether all the findings arrived by the court below are perverse and contrary to material available on record?

Per contra, learned counsel for the respondents contended that no substantial question of law is involved in this appeal. The plaintiffs filed the plaint in the trial court with the specific averment that there is a way which is being used by them since long back and in support of their plaint, the plaintiffs-appellants filed a nazari naksha ''ka'' but in nazari naksha, the plaintiffs-appellants have not specified the width of the way and neither they pointed out the khasra numbers in the nazari naksha. Further, he contended that there are serious contradictions in the statements of the witnesses and the learned trial court came to the conclusion that alternative way is available to the appellants-plaintiffs and in case of availability of the alternative way, the right of easement does not arise in favour of the appellants-plaintiffs. Accordingly, the findings arrived at by the learned trial court as well the first appellate court does not require any interference at this stage.

The learned counsel for the respondents further contended that in para No. 3 of the plaint, the plaintiffs specifically pleaded that in the nazari naksha ''ka'', there is a way from ''P'' to ''B'' and that way is used for tractor-trolley, bullock cart and cattle whereas there was no such way available at the spot according to the Commissioner report. There were only signs of some old footprint. The learned counsel for the respondent further contended that it is settled position of law that right of easement arises only, in cases, where there is no alternative way.

I have considered the contentions raised by the learned counsel for the appellants and also perused the judgment of the learned trial court as well as the learned first appellate court.

The suit was dismissed by the learned trial court solely on the basis of the findings on issues No. 1, 2, 3 and 4 and the learned first appellate court in its judgment dated 28.3.2011 came to the conclusion that the findings of trial court are on the basis of the contradictions in nazari naksha, Exhibit-1 and Commissioner''s report Exhibit-3 and further on the basis of naksha trace Exhibit-A1 produced by the defendants-respondents.

I have perused the averments pleaded in the plaint, a copy whereof has been placed before me by counsel for the appellants for perusal. The appellants-plaintiffs in para No. 3 pleaded that the way is being used for tractor, trolley, bullock-cart and for his cattle. The plaintiffs ought to have proved this fact from his oral as well as documentary evidence. The documentary evidence is totally against the pleadings of the plaintiffs. The plaintiffs themselves admitted this fact that their bara is situated in Khasra No. 13 and in the nazari naksha, they have not mentioned this fact that Khasra No. 13 starts from which place and how much land is covered in Khasra No. 13 and 28. Although the plaintiff himself denied this fact that there is no alternative way but PW-2 Narayan Singh in his statement admitted this fact that he does not know this fact as to whether this way is Katani way. PW-3 Ramdeen also admitted in his cross-examination that the so-called way as pleaded in the plaint is existing in the Khatedari land of Tej Singh or not. The learned trial court recorded the findings on issues No. 1, 2, 3 and 4 after appreciating the evidence of each and every witnesses and after considering the documentary evidence available on record. The finding recorded by the learned trial court as affirmed by the learned first appellate court cannot be said to be erroneous because, even, from the statements of the witnesses of the plaintiffs, it is established that no old right and way is available to the plaintiffs. There are contradictions in the map produced by the plaintiffs and the map prepared by the Commissioner as also in the statements of the witnesses. I find no illegality, infirmity or irregularity in the findings arrived at by the learned trial court as affirmed by the learned first appellate court. The impugned judgments passed by the courts below do not call for any interference at the second appellate stage. No substantial question of law as proposed by the learned counsel for the appellant is involved in this appeal. Accordingly, this civil second appeal being bereft of merit is dismissed. No costs.