Banarsi Das vs Prabhati Devi and Others

Ritu Bahri, J.—This Regular Second Appeal has been filed against the judgment of reversal dated 10.10.2012 passed by the District Judge, Narnaul vide which the appeal against the judgment and decree dated 29.1.2010 passed by the Civil Judge (Junior Division), Mahendergarh was accepted. Vide the trial Court judgment dated 29.1.2010 the suit of the plaintiff-respondent no.1 was dismissed with costs.

The suit of the plaintiff was that she was owner in possession of a plot as shown in the site plan as GHIJ and on the northern side of the plot was the property of Doctor Surat Singh, on the southern side of the plot were houses of defendant and Rattan Lal and Ram Saran, on the eastern side of the plot house of Puran Mal and in the western side of the plot was the land of Bhana Ram Saini and plaintiff had constructed boundary wall over her plot and using the same as guwara. It was stated that there was a passage 9 feet wide and 85 feet long as shown in the site plan as ABCD (hereinafter referred to as suit property) and plaintiff is also using this rasta connected with Nagar Palika road. There was no other passage to go inside the plot of the plaintiff-respondent no.1. Appellant-defendant no.1 had constructed forcibly and illegally a latrine measuring 4-1/2 x 5 feet at mark A and has constructed a wall measuring 9 x 2-1/2 feet at mark B and has closed the rasta at mark AB. The construction has been done over more than his share and the defendant is asserting his ownership over his rasta. Defendant no.2 had also colluded with defendant no.1 and no proceedings were initiated against defendant no.1 by Nagar Palika. It was also stated that plaintiff has written a letter dated 21.7.2003, 12.8.2003 to Nagar Palika for restraining defendant no.1 from raising construction and removing the latrine and wall, but no proceedings were initiated against defendant no.1.

On notice, the defendants appeared and defendant no.1 filed the written statement stating therein that there was no rasta left by the Nagar Palika and plaintiff had nothing to do with the rasta. Defendant had purchased plot and earlier owners of plots had left the rasta for the use of the defendants from their own land. Plot of the plaintiff has a separate passage left for her. The plaintiff wants to encroach upon the rasta and the construction has been done by the defendant on his own land and Nagar Palika has nothing to do with the rasta and the suit was barred on account of locus standi, estoppel and maintainability.

Defendant no.2 filed a separate written statement stating therein that Nagar Palika had nothing to do with the ownership as well as possession over the rasta and the rasta was left by the owners from own land for the user. It was stated that there was a private dispute between plaintiff and defendant no.1 and plaintiff wants to forcibly encroach upon the rasta. There was no record in the Nagar Palika regarding ownership of the rasta and Nagar Palika has not given permission to construct latrine and boundary wall over the rasta.

On 29.8.2005, the trial Court framed the following issues:

Whether plaintiff is owner of the suit property? OPP

If issue no.1 is proved, whether plaintiff is entitled for decree of permanent injunction as prayed for? OPP

Whether suit of the plaintiff is not maintainable ? OPD

Whether plaintiff has concealed the material facts from this Court? OPD

In order to prove issues no. 1 and 2, plaintiff examined Jogender Singh as PW-1 who has tendered his affidavit Ex. PW1/A and deposed that site plan Ex. PW1/B was prepared by him. PW-2 Puran Mal tendered his affidavit Ex. PW2/A and deposed that plaintiff is owner in possession over plot as shown in site plan as GHIJ. There was a passage of 18 feet long and 9 feet wide to go inside the plot of plaintiff and was connected with the road of Nagar Palika. There was no other passage to go inside the plot of the plaintiff. Defendant no.1 had constructed a latrine measuring 4 1/2 x 5 feet at point A and boundary wall measuring 9 x 2 1/2 feet at point B has closed the rasta at point AB. Defendant no.1 had raised the construction over more than his share and forcibly closed the rasta. Defendant examined Rattan Singh as DW-1 who tendered his affidavit Ex. DW1/A and deposed that a passage of 9 feet was left from own land by earlier owners and plaintiff has nothing to do with the rasta. DW-2 Banarsi Dass deposed that a passage of 9 feet wide was left from own land by earlier owners. Plaintiff has separate passage to go inside her plot from the main Gaoshala Road and defendant no.2- Nagar Palika has nothing to do with the rasta. DW-3 Dinesh Kumar tendered his affidavit Ex. DW-3/A and deposed that there is no record in the office of Nagar Palika regarding ownership over the rasta.

No evidence was led by the plaintiff to show that the rasta was of Nagar Palika or she had any right of ownership/right to use the said rasta. Moreover a perusal of site Plan Ex. PW 1/ B shows that on the eastern side of the plaintiff''s plot was a house of plaintiff''s husband Puran Mal and there was a main road in front of plaintiff''s husband house Puran Mal. Puran Mal in his deposition has admitted that Nagar Palika has not left any passage. Issues no. 1 and 2 were decided against the plaintiff and the suit was dismissed by the trial Court.

On appeal, the Lower Appellate Court examined the sale deed Ex. D-1, whereby Banarsi Dass and his brothers and father had purchased the plot abutting this rasta. As per the sale deed Ex. D1 on the east side of the plot a rasta has been shown. In the sale deed it is nowhere shown that the rasta in the east side shall be for exclusive use of the defendant Banarsi Dass. Rattan Singh, the witness produced by the defendant whose house also abuts the rasta stepped into witness box as DW-1, he has deposed that defendant no.1 and his brothers go to road via this rasta. He has also deposed that towards east of the rasta there is his plot and he has also right to go through this rasta. He admitted that the vendors from whom he had got a plot had left the rasta for his use. No sale deed was produced by Rattan Singh to show that at the time of purchase of the plot from the vendors, the rasta was meant for their exclusive use. The lower Appellate Court came to a conclusion that the rasta which was left by the vendors was not exclusively for them. Rattan Singh further admitted that this rasta was given to them without any payment. The Lower Appellate Court has further examined the sanctioned site plan of the house of Banarsi Dass. Towards east of the site plan Ex. DA gali has been shown. It is nowhere written that gali is not common meant for exclusive use of the defendant and others who had purchased the plot from the vendors of the defendants. The rasta in dispute was held to be used by everyone and it was not meant exclusively for the use of Banarsi Dass. In this background construction of wall at point `B'' and thereafter construction of the latrine on the said rasta could not be done by the defendant as he had no right of construction on the rasta which was not exclusively meant for him by the vendors. The appeal was accepted and the judgment of the trial Court was set aside.

After going through the judgments of both the Courts, it has been observed that no evidence has been led by the defendant Banarsi Dass to show that the rasta which abuts the house was subject matter of the sale deed Ex. D-1. As per site plan Ex. DA rasta was shown for the common use. As per the admission of Rattan Singh, DW-1, at the time of making the sale of the plot, no money had been charged for this rasta. Hence the rasta/galli could be used by all the adjoining plot holders. The defendant had no right to block the rasta by constructing a wall on point `B'' and constructing a latrine at point `A''.

In view of the above discussion, no substantial question of law arises for consideration to entertain this regular second appeal. Hence, this is dismissed.