Anurag Mathur & ORS. vs State of M.P. & ANR.

The appellant/original defendant has filed this second appeal under Section 100 of the CPC against the judgment and decree dated 24.01.2014 passed by Nineteenth Additional District Judge, Jabalpur in Civil Appeal No. 6-A/2012 affirming the judgment and decree dated 17.05.2012 passed by Sixteenth Civil Judge, Class-II, Jabalpur in Civil Suit No. 5-A/2010, whereby the suit filed by the plaintiff/respondent has been decreed for mandatory injunction for removing appellant''s tin-shed fitted at the mouth of 3 ft. width conservancy (kullia) situated between the houses of the appellant and defendant and for removal of construction made by the appellant on mentioned E, F, C, D, portion shown in map annexed to the plaint and perpetual injunction restraining the appellant from making any hindrance and from any construction in this conservancy.

Admitted facts are that the plaintiff Sukhlal, Municipal Corporation House No. 2269 is situated in Seth Govind Das Ward in city Jabalpur on Plot No. 1/85 and 2/49 Plot No of Nazul Gulab No. 147/1 and on its west side defendant/present appellant Eknath''s house No. 2268 is situated on Jabalpur 1/86 and 2/50 of Najul Gulab No. 147 of the same ward.

Plaintiff Sukhlal filed suit before the trial Court on pleadings that in between his and defendant''s houses, there is situated a conservancy (kullia) having 3 ft. width for painting and maintenance work of walls of their houses and for the cleaning purpose, and each party is entitled to use this land of conservancy, which is shown by letters A, B, C, D in the map annexed with the plaint. The defendant Eknath is trying to make illegal possession on the land of this conservancy. Previously on plaintiff''s report, the illegal possession of the defendant was removed by the revenue authorities. Thereafter, defendant has put a tin-shed at the mouth of this conservancy and thus, has stopped the way of the conservancy. On points E, F, C, D shown in the above-mentioned map, defendant has constructed a concrete pillar adjacent to the wall of the plaintiff''s house in this conservancy, thus, the entrance of the plaintiff in this conservancy has been totally stopped. Thereafter, water is being collected in this land of conservancy, and due to depositing of waste material there, a nuisance is being created. Defendant has made above-mentioned construction without any permission from the Municipal Corporation or Nazul Officer. Plaintiff has filed application before the authorities in the year 2002 and 2003 for stopping the construction of the defendant, but thereafter defendant has forcefully made abovementioned construction. Thus, mandatory injunction relating to removal of the tin-shed and removal of the construction made by the defendant on shown portion of the conservancy and perpetual injunction restraining the defendant from making any hurdle or construction in future is prayed.

The defendant in his written statement has denied all the adverse pleadings of the plaintiff and pleaded that defendant''s father Sravan Punekar has purchased the house No. 2268 in partnership of Mahadev in the year 1965 from previous owner Bhaginiya Bai. Actually, the plaintiff has encroached over the land of the defendant and on this point, defendant has complained in the offices of Municipal Corporation, Collector and Tehsildar. Plaintiff was granted a lease of 300 sq.ft. land only, but plaintiff has encroached in total over 800 sq.ft. area and plaintiff had projected his house''s roof towards the latrine and bathroom of the defendant. Plaintiff is not entitled for any relief.

The trial Court framed issues on the basis of pleadings recorded the evidence plaintiff Sukhlal (PW-1) and his witnesses Adesh (PW-2) and Ramsiya (PW-3) and evidence of defendant Eknath (DW-1) and his witness Jagdish Prasad Vanskar (DW-2). The trial Court recorded the findings in its judgment that there exists of conservancy (kullia) having width of 3 ft. in between house of the plaintiff and defendant, which is shown in plaint annexed map and each of the parties having right to use this land of conservancy. It was also found proved that the defendant has obstructed the way of the conservancy by putting a tin-shed at its opening and by constructing a concrete pillar as shown on marked portion in the plaint annexed map and is created hindrance in use of the land of the conservancy and decreed the plaintiff''s suit for mandatory injunction and perpetual injunction. The appeal filed by the defendant before the district Court remained unsuccessful.

Learned counsel for the appellant contended that the trial Court had observed in its judgment that no any documentary evidence relating to the land of conservancy has been filed by the plaintiff, but it has found proved existence of the conservancy between the houses of the plaintiff and defendant only on the basis of deposition of plaintiffs witnesses. It is further contended that both of the lower Courts have not properly and legally appreciated the oral and documentary evidence of the parties, whereas defendant has filed the certified copy of the registered sale-deed (Ext. D/1) executed in favour of the father of the defendant and his partner by the owner of defendant''s house.

The appellant/original defendant has denied the existence of any land of conservancy in between houses of the plaintiff and defendant, but appellant Eknath Punekar (DW-1) had clearly deposed in para 17 of his cross-examination that he has not closed the kullia (conservancy) till date, but appellant suo-motu deposed there that conservancy has been closed by the plaintiff himself, but in next breath admitted that the tin-shed, which is fixed, belongs to him and in next sentence appellant admitted that in between plaintiff''s house and his house a tin-shed is attached and in next sentence appellant admitted that if the construction is removed from the place of conservancy, is having no objection and in same para his suo-motu deposed that which construction is existing i.e. encroachment. In next para No. 18, appellant admitted that due to the tin fixed by him, the way has been closed for going into the land of conservancy. In para No. 18, appellant has deposed that kullia (conservancy) has been closed by the plaintiff himself and he is having no objection, if the kullia (conservancy) is opened.

Appellant Eknath (DW-1) clearly admitted in para 19 that due to fixing of tin-shed and construction over the land of conservancy, no way is left for going into kullia and maintenance of the walls of the plaintiff''s house from the outside. In para No. 22, appellant clearly admitted that where he has fixing the tin, previously there was a boundary wall existing, which was removed by the Municipal Corporation, but thereafter he had put tin-shed there. In para No. 22, appellant had clearly deposed that previously there was a conservancy of 5 ft. width and there was a well and appellant clearly admitted that now the water of the rain is being deposited on the land and conservancy, which enters into his house also. Thus, the material admissions made by the appellant himself in his cross-examination provides reliance to the evidence given by the plaintiff and his two other witnesses that a conservancy is existing between house of the plaintiff and defendant, which has been obstructed by the defendant.

In affidavit of Examination-In-Chief of appellant''s witness Jagdish Prasad (DW-2), it is mentioned that the alleged land of conservancy by the plaintiff is actually belongs to the defendant, but in cross-examination (para-11) DW-2 clearly deposed that he did not understand the meaning of conservancy and thus, he cannot tell that there exists a conservancy or not, but in his crossexamination (para-9) he clearly admitted that there exists a kullia (conservancy) in between houses of plaintiff and defendant. Thus, it is clear that existence of a conservancy between houses of appellant and plaintiff is proved and admitted by appellant and his witness, which provides additional reliability to the respondents witnesses, thus, it is clear that both the courts below have not committed any error in decreeing the plaintiff''s suit. In Ext. D/1 and Nazul Patta of the plaintiff Sukhlal (Ext. P/1) and Nazul Patta of appellant''s father Sravan (Ext. D/2), the four-boundaries of the relating land or houses have not been given. Thus, this documentary evidence is not much helpful in deciding the existing controversy. It was proved from evidence of both of the parties that each party is blaming against the another that he has encroached, but appellant has clearly admitted in his deposition that he has not filed any suit for removal of any encroachment on his land.

In view of aforesaid discussion, I have not found any substance or the circumstance in the matter giving rise to any question of law rather than substantial question of law. Consequently, this appeal is being devoid of any merits and is hereby dismissed at the stage of motion hearing. There shall be no order as to the costs.