Kamal Prakash Mittal & Anr. vs Bishan Das & Ors.

Instant second appeal has been filed against judgment and decree dt 6.1.2011 passed by Additional District Judge (Fast Track) No.4, Ajmer, whereby the judgment and decree dt 21.8.1997 passed by Addl. Civil Judge (Jr. Div.) & Judl. Magistrate First Class No.2, Ajmer, has been affirmed.

Brief facts are that a suit for permanent and mandatory injunction was filed by the plaintiff-respondents wherein it was alleged that plaintiff No.1 is the owner of plot No. 441/33 (Old)= 480/16 (New), and plaintiff No. 2 is the owner of plot No. 440/33 (Old)= 479/16 (New), and both houses are situated opposite to each other, which are opening towards the public chowk measuring about 45x25 feet which exists in between the aforesaid two plots in which since the year 1964 there exists 8 feet wide cemented road which was constructed by Municipal Council. It was also alleged that on both sides of the chowk, there exists drain (nali) outside the houses, and doors and windows of both these houses are opening towards the said public chowk. It was alleged that both the plaintiffs and other residents of the area, have been using this chowk as entry and exit to their respective houses since last 25-30 years, and the open space of the chowk is also used by the local residents for celebrating community festivals, marriages and such other functions as well. It was also alleged that the plaintiffs have acquired a right of passage over this way. It was then alleged that on 2.6.1990 the defendantappellants started digging the chowk in front of the houses of the plaintiffs for laying foundation and then raising construction to which they had no legal right. It was alleged that if the defendantappellants are allowed to raise construction on the said chowk to which they had no legal right, the plaintiffs will be deprived of air and light and also right of way to their respective plots. Therefore, by filing this suit it was prayed that the the defendants be restrained from raising any construction on the said chowk. It was further prayed that the defendants be directed to remove all the construction material from the site and to restore status as was in existence previously.

The defendants filed written statement denying all averments in the plaint and it was averred that plot No. 441/ 33 (Old)= 480/16 (New) was the property of one Shri Thavardas and was not a property of joint Hindu Family and in these circumstances, his legal heirs have a right over the said property, and it was vehemently denied plaintiff No.1 being owner of the said plot. Similarly for plot No.440/33 (Old)= 479/16 (new) it was then averred Shri Ayaldas was the owner, and denied plaintiff No.2 being owner of the said plot and prayed that the suit was liable to be dismissed on the ground of non-joinder of necessary parties. It was averred that in between both the plots there is a 33x53 feet house (plot) of one Shri Ramghulam and now of Harichand Dhobi. It was further averred that the defendant no.1 is the Power of Attorney holder of Harichand Dhobi. It was denied that there is a public chowk or a cemented road in between the said plots. It was also averred that the main entrance of both the plots opens on the other side of the disputed plot and the Municipal Council had never constructed any road on the same. It was further averred that even if the plot of Ramghulam was used as a connecting way, it was totally illegal and does not have any effect on his legal rights. It was denied that the disputed plot was used by the plaintiffs for last 25-30 years as entry/exit of their respective houses and it was also denied that this is the only entrance/exit to their plots. It was further averred that the plaintiffs have no right on someone else''s property and it was denied that the disputed plot has been used for any community functions etc.

It was also clarified in the written statement by the defendant-appellants that they were raising construction on the disputed plot after getting building plans approved from the Municipal Council and had only assembled the construction raw materials after getting required approval. It was then averred that the Municipal Council of Ajmer, after hearing on the objections of plaintiffs and rejecting the same, have held that the property belongs to the defendants and had also permitted them to raise construction. It was also averred that the plaintiffs would not suffer any hardship if the construction is raised on the disputed plot. It was also denied that the plaintiffs would not have access to open air and light or their entry and exit would be closed if the construction was raised on the disputed plot. It was then averred that the approved plan clearly stipulates that the defendant-appellants would leave 4 feet space on both sides so that there was no hindrance for the plaintiffs to have access to open air and light. It was further averred that the disputed plot was sold for a valuable consideration of Rs.10,000 on 31.1.1990 by a sale deed. It was also averred that the plaintiffs are now estopped from raising any objection as the Municipal Council has already considered their objections and thereafter approved the plans. It was also averred that the plaintiffs have not come to the court with clean hands and thus, they are not entitled to any relief or injunction from the court. It was also averred that Harichand Dhobi had transferred the said plot to Smt. Asha Mittal by a Will and she has not been impleaded as a party and, therefore, the suit was not maintainable on this count as well.

A rejoinder to the written statement on behalf of the plaintiffs was filed claiming that the suit had been filed by them as rightful owners of the respective plots. It was alleged that because the defendants have mentioned that the said plot was owned by Ramghulam, the property now belongs to the Municipal Council and that the sale deed in favour of the defendants is void and illegal. It was denied that the plaintiffs have any other entrance/exit to their houses apart from the one described earlier. It was reiterated that the disputed plot is a public chowk and there exists a 8 feet wide cemented road. It was alleged that the defendants, in connivance with the Municipal Council, want to grab the disputed plot illegally. It was also alleged that any act of the Municipal Council which was illegal and unlawful, cannot be accepted. It was alleged that the act of the Municipality in granting permission to the defendants for raising construction is unlawful. It was alleged that leaving of space of 4 feet on both sides in front of the plaintiffs'' houses, would not enable them to take their vehicles to their houses. It was alleged that the Municipal Council have in their own documents shown the disputed plot as a public chowk and have still approved the defendant appellants'' plan overlooking this fact which is unlawful and void, and alleged that the defendants had no right to raise any construction on a public property.

On the pleading of the parties, the trial court framed as many as 8 issues including that of relief, and decided all issues against the defendant-appellants and decreed the suit vide judgment and decree dated 21.8.1997.

Being aggrieved by the judgment and decree passed by the trial court, the appellants filed appeal before the first appellate, who also after analysing the material on record, affirmed the judgment and decree passed by the trial court and dismissed the appeal. Hence this second appeal.

Learned counsel for the appellants contended that the courts below have acted illegally and contrary to the evidence on record in holding that the defendant-appellants are not the legal owners of the plot in dispute. It was further contended that the courts below have acted illegally and unreasonably in allowing the suit to continue without impleading the Municipal Council, Ajmer being a necessary party. Learned counsel also contended that the courts below have seriously erred in deciding that the plaintiffs have a right of way and right of permanent usage upon the disputed property, and contended that substantial questions of law does arise out of the impugned judgment and decrees which need consideration of this court.

I have heard learned counsel for the appellants and perused the material available on record including the impugned judgment & decrees. The courts below have arrived at a concurrent finding after analysing the material available on record and the learned counsel for the appellant has not been able to point out any illegality or infirmity being committed by the courts below in arriving at the concurrent finding. Therefore, I am also of the view that the judgment and decrees passed by the courts below are well reasoned one and no interference by this court is warranted.

Consequently, this second appeal, being devoid of any merit, is hereby dismissed.