Chandan Singh and Anand Singh vs Bhagwat Singh and Keshav Singh

Rajesh Tandon, J.—Heard Shri Harshvardhan Shah, counsel for the appellants and Sr. V.K. Bisht, Sr. Advocate assisted by Mrs. Seema Sirohi, counsel for the respondents.

By the present second appeal filed u/s 100 of the Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 3.7.2000 passed by the District Judge by which the judgment and decree dated 14.10.1998 passed by the Civil Judge (Junior Division), Almora has been confirmed.

Second appeal was admitted on following substantial questions of law:

Whether plot No. 2934, where the staircase exits, obstructs in any way to the user of the plot of the plaintiff i.e. 2952 and 2951?

Whether it can be compensated by way of compensation to the plaintiff?

Briefly stated, a suit was filed by the plaintiffs Bhagwat Singh and Keshar Singh praying for the removal of the constructions made on plot Nos. 2934 and 2944 by the defendants. Further it has been prayed that if the defendants fail to remove the same, then the constructions be removed by the court at the cost of the defendants. Further the relief for prohibitory injunction was made with a prayer that the defendants be restrained from making any obstruction in the passage.

According to the plaintiffs, they are residents of village Silkhora, Patti Uchhyur, Kshetra Dhora, District Almora. The defendants are also the residents of the same village. It has been stated that there are two roads for approaching their hoses, which are on plot No. 2934 and 2944. The defendants have constructed a staircase on the passage and, thus, have obstructed the passage. The plaintiffs approached the Gram Pradhan, but the defendants did not remove the constructions, hence, the suit.

A written statement was filed on behalf of the defendant Nos. 1 and 2 jointly. It has been stated that plot No. 2934 is the passage for public and the cattle, whereas passage of plot No. 2944 leads to plot No. 2953. In para 3 of the written statement, it has been stated that the right to use the passage is admitted and the rest of the averments have been denied. In the additional pleas, it has been stated that before filing the suit permission u/s 91 C.P.C. has not been obtained from the court. It has been denied that the passage of the plaintiffs has been obstructed by the defendants due to construction of courtyard and staircase. The house of the defendants is over plot Nos. 2951 and 2952. There is no passage towards this side. The present suit has been filed on wrong facts and, therefore, the defendants are entitled to get the special costs u/s 35-A of the Code of Civil Procedure.

On the pleadings of both the parties, the trial court has framed the following issues:

Whether the defendants have encroached on the disputed land?

Whether the suit is barred by Section 91 C.P.C. as alleged in para 10 of the written statement?

To what relief, if any, is the plaintiff entitled?

While deciding issue No. 1, the trial court has recorded a finding that the defendants have obstructed the passage of plot No. 2934 and 2944.

While deciding issue No. 2, the trial court has recorded a finding that the plaintiffs are facing difficulty with regard to passage.

On the basis of the findings recorded above, the trial court has decreed the suit of the plaintiff and the defendants were directed to remove the encroachment. The defendants were also restrained to make any further obstruction.

Aggrieved by the order passed by the trial court, the defendants went in appeal. The appellate court has dismissed the appeal.

I have perused the record. Both the courts below have recorded the concurrent findings of fact. I find no illegality in the order passed by the courts below so as to interfere u/s 100 of the Code of Civil Procedure.

In view of the findings recorded by the two courts below, I do not find any substantial questions of law involved in the present Second Appeal.

In Mohan Singh v. Danvir Singh Chauhan 1980 All.L.J.78, it has been observed as under:

The plaintiff appears to have objected to the projections of the doors and windows after they had been made, and although the projections do narrow down the breadth of the passage by about 2 feet, it may not be very fair to order their demolition, inasmuch as the plaintiff did not take the necessary steps to prevent the making of the projections before they were made and inasmuch as their existence has not been proved to cause any such irreparable injury to the plaintiff as cannot be compensated in damages. The common Rasta (passage) has not been narrowed down to any such extent as may have made it unusable for the purposes for which it was left. However, since the plaintiff was originally and continues to be the owner of the land of the 15 ''-6" wide common Rasta, the projections do amount to an encroachment on his land,. And although the projections have made it permanently impossible for the plaintiff to use a 2 feet wide strip of the common Rasta (passage) along the defendant''s house, the plaintiff could be compensated by being awarded the market price of that 2 feet wide strip of land.

Subject to the agreement of both the parties, it will be open to the parties to put their grievances with regard to damages during the execution proceedings.

In view of the above, substantial questions of law, therefore, are decided in favour of the plaintiff-respondents and the second appeal is liable to be dismissed being devoid of merits.

Consequently, second appeal is dismissed. No order as to costs.