Anant Thamos vs Makhan Yadav And Ors

Ram Prasanna Sharma, J

This second appeal is preferred under Section 100 of the Code of Civil Procedure, 1908 against the judgment/decree dated 4-8-1999 passed by the

VIth Additional District Judge, Bilaspur, Madhya Pradesh now CG in Civil Appeal No. 17-A/99 wherein the said court dismissed the appeal filed by

the appellant on the basis of easementary right on the land bearing survey No. 69 which is closed to the land of the appellant bearing survey No. 110

area 4800 sq.ft., situated at Jarhabhata, Bilaspur.

This appeal is admitted on the following substantial question of law.

Whether the courts below hav erred in dismissing the suit of the plaintiff for permanent injunction restraining the construction being raised by the

defendants particularly when the area in question is shown to be a Government land and a public way""?

Learned counsel for the appellant would submit as under:

I) The trial Court has failed to consider that in fact the Western portion of the land adjacent to the land of the plaintiff was used as village road since

long back, therefore, no one can be permitted to construct over the portion of the same, even easementary right does not accrue in favour of the

appellant.

ii) Respondent No.2 may be restrained on the ground of inconvenience and in larger interest of the people.

iii) Both the courts below ought to have considered that the appellant has purchased a corner plot only and on that basis she will get approach from

two sides and her right cannot be affected.

I have heard learned counsel for the appellant and perused the records of both the courts below including the judgment and decree.

The appellant is claiming easementary right on the land of survey No. 69 that same is used as road by her. Both court below i.e., the trial Court and

the First Appellate Court have marshalled factual matrix and legal aspect of the matter and opined that the appellant is not able to establish that she

used the said land of survey No. 69 for continuous period of 20 years without interruption as a matter of right and in the knowledge of all the parties

who were concerned with the survey No.69. Again, from the evidence, it is clear that survey No. 69 is the Government land but nothing is pleaded

and proved against the Government.

Admittedly, the appellant purchased the land from one Bhansilal. From the evidence it is not established that Bhansilal and appellant have used the

land for continuous period of 20 years as right of prescription. There is also finding that the appellant had alternate way for moving from the house and

his right to light and air is not restricted by any one. Finding of the both courts below is based on relevant material placed on record and same is not

based on irrelevant or extraneous material. Pleading of the appellant is not proved before the courts below. There is no irregularity or illegality in the

judgment of both courts below. It cannot be said that they have erred in dismissing the suit. Argument advanced on behalf of the appellant is not

sustainable. The substantial question of law is answered in negative.

Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed.