Bhagwan Das vs Smt. Surja Bai

K.K. Trivedi, J.—Heard on the question of admission.

This second appeal u/s 100 of the CPC is field by the appellant/plaintiff against the judgment and decree dated 8.12.2010 passed in Civil Appeal No. 1-A/2010 by the XII Additional District Judge, Jabalpur arising out of the judgment and decree dated 14.12.2009 passed in Civil Suit No. 3-A/2008 by the XV Civil Judge Class-II, Jabalpur.

The appellant/plaintiff filed a suit seeking a decree of permanent injunction and mandatory injunction against the respondent/defendant on the ground that he has purchased the house by a registered sale deed. In the said registered sale deed it was categorically mentioned that there was a way available. In fact, the colonizing was done and after plotting, the map was prepared and the plots were sold. The respondent No. 1/defendant also purchased a plot in the very same colony. However, on a piece of land, over which the road is constructed, encroachment is made by the respondent/defendant No. 1 and a room is constructed and thereby access to the main road available to the appellant was obstructed by the respondent No. 1/defendant. On demand for removing such encroachment, the respondent No. 1 has quarreled with the appellant. Therefore, the suit was required to be filed. It was further contended that earlier a suit was filed by the appellant against one Ganpat Patel, who too was creating obstruction in peaceful enjoyment of the common road and the said suit was decreed. Therefore, a decree of permanent injunction and injunction in mandatory form be granted against the respondent No. 1/defendant for removal of such an encroachment.

The suit was contested by the respondent No. 1 stating therein that the allegations made by the appellant/plaintiff were totally misconceived. In fact construction was made by the husband of the respondent No. 1 on the plot so purchased by the husband of the respondent No. 1. Such a construction was done only after obtaining necessary sanction from the Panchayat, which fact was already certified by the said Panchayat. It was denied that any encroachment over the land of road was made by the respondent No. 1/defendant. It was thus contended that the suit was liable to be dismissed.

The trial court framed issues, recorded the evidence and came to the conclusion that the appellant/plaintiff has proved his claim that the construction was made on the land of the road by the respondent No. 1/defendant and, therefore, while decreeing the suit, directed removal of such an encroachment. The respondent No. 1 preferred an appeal before the lower appellate court and since the appeal has been allowed, the judgment and decree of the civil court has been set aside and the suit of the appellant has been dismissed, this appeal is required to be filed.

It is vehemently contended by the learned counsel for the appellant that if the findings recorded by the trial court are looked into, it would be clear that the suit of the appellant has been dismissed by the lower appellate court holding that in the earlier suit the relief was granted to the appellant and, therefore, the same relief is not required to be granted once again. It is contended that if the evidence is properly marshalled, it would be clear that the appellant has proved his case. Therefore, there was no occasion to allow the appeal of the respondent No. 1 and to set aside the judgment and decree granted in favour of the appellant, by the trial court.

Such submissions of learned counsel for the appellant are wholly misconceived. It is not disputed that the appellant has proved his own sale deed (Ex. P-1) said to be executed on 18.11.1986. It was necessary on the part of the appellant to demonstrate that any construction was recently made by the respondent No. 1/defendant encroaching on the land of the road and obstructing any easementary right of the appellant. On the other hand, the witness of the appellant Parasnath (PW-2) has admitted that the construction is not done by the respondent No. 1/defendant recently in the year 2004. He has admitted that the construction was done 20-25 years back. It is seen from the statement of PW-3 by the lower appellate court that the colony was developed sometime in the year 1986, plots were transferred to the persons like appellant and respondent No. 1 at that time and houses were constructed by them at that time. Even otherwise, the facts relating to making of construction were admitted by the witnesses of the appellant, categorically saying that the constructions were done at least 10-12 years back and it was not known whether any recent construction was done by the respondent No. 1/defendant. If the house was constructed way back violating any right at that time by the respondent No. 1/defendant, the appellant was required to file the suit at that time for enforcement of any alleged easementary right. Even when the suit was filed by the appellant against Ganpat Patel, no reference was made that right of way of the appellant is also obstructed by the persons like respondent No. 1. Therefore, it was rightly held by the lower appellate court that the civil court has not properly assessed the evidence available on record and has erroneously granted a decree in favour of the appellant.

From the facts, as have been recorded by the lower appellate court, it is clear that earlier a suit was filed by the appellant in the year 2004 against one Ganpat Patel for obstruction of the 20 ft. wide road made available by the maker of the colony. That suit was decreed, but at that time also there was no reference that any construction was made by the respondent herein on the land of very same road. This being so, if it is held by the lower appellate court that the suit filed by the appellant was not maintainable and no relief could have been granted to the appellant, it cannot be said that any error of law is committed by the lower appellate court in reversing the judgment and decree of the civil court. In view of the aforesaid, there is no force in this appeal. No substantial question of law arises for consideration in this appeal, which fails and is hereby dismissed. However, there shall be no order as to costs.