Keshav Prasad vs Tulsiram

The appellant has filed the present appeal challenging the judgment and decree dated 17.04.2017 passed by 3rd Additional District Judge,

Sagar, in Civil Appeal No.04-A/2016, whereby while affirming the judgment and decree dated 25.02.2016 passed in Civil Suit No.44-A/2015 by

the trial Court, has dismissed the first appeal filed by the appellant.

The appellant/plaintiff filed a Civil Suit, claiming the relief of declaration, mandatory as well as permanent injunction with respect to a common

Kulia for Nistar purposes, which has been blocked by the defendant by raising construction of a wall, doors and septic tank and also made

construction of staircase in the Kulia to approach first storey of the house of defendant, while the said common Kulia for Nistar purposes is in

existence since a very long time. It is the case of the plaintiff before the Court below that there is a Kulia between the house of the appellant/plaintiff

and respondents/defendant, situated at Gopalganj, Sagar which is for common Nistar purposes, which is 7-8 feet in width from East-West side, 46

feet 9 inch long from Nor-South side. The house of the plaintiff is at the South side of said Kulia. The South portion of the Kulia is kissing with the

main road. The one door of the house of appellant is opened in the Kulia. The one door of East wall of the house of respondent is also opened

towards the Kulia and the same position is already mentioned in the map dated 19.03.1941. At that time the Flash Latrine were not in existence,

then the sweepers used to use this Kulia. The Nistar water of the houses adjacent to the Kulia was blown from this Kulia towards outside. This

Kulia had been always used for common purpose. After flash latrine came into existence and the visits of Sweepers have been stopped, but the

nature of Nistar is as usual. The said Kulia is not a private proper of anyone and neither any person has any right to raise constructions over the

Kulia nor to change the nature of Kulia. From earth to sky, it should be opened. The defendant has changed the nature of common Kulia and using

the same for his personal use. In the year 2013, the defendant has raised construction of a wall, doors and Septic Tank and also made construction

of staircase in the Kulia to approach first storey of the house of defendant, while the said common Kulia for Nistar purposes is in existence since a

very long time. Due to this reason, the plaintiff is facing inconvenience, when the plaintiff has tried to stop such illegal construction, the defendant

picked up quarrel with him, hence he has filed the Civil Suit for obtaining a Decree for dismantling illegal construction of the defendant and to

maintain the nature of Kulia as usual as it was.

The defendant filed their written statement and refuted the averments made by the plaintiff in his plaint as usual, stating that he has not raised any

new construction. The construction of the house of defendant is 15 years old, he has not encroached the Kulia. No any dispute has occurred

between them. The door of the house of defendant in the said Kulia is affixed from a long time. The defendant further stated that at the North

portion of the Kulia, there is a Kachchi Latrine of the house of plaintiff, which is more that 20 years old, for which, the Sweepers used to visit

there, but as the cattle used to enter in the Kulia, due to this reason the defendant has closed the way to exit of the Kulia through affixing the door

at the South side. The defendant alleged that the plaintiff has filed a forged map and prayed for dismissal of the suit of plaintiff.

The trial Court after framing the issues and recording the ocular as well as documentary evidence, dismissed the said suit. Against the judgment

and decree passed by the trial Court the appellant/plaintiff has preferred first appeal before the first Appellate Court.

First Appellate Court vide its judgment and decree dated 25.02.2016 while affirming the judgment and decree passed by the trial Court has

dismissed the first appeal filed by the appellant/plaintiff. Being aggrieved by the judgment and decree passed by both the Courts below, the

appellant/plaintiff has filed this second appeal on the ground that the findings arrived at by both the Courts below are perverse and illegal.

Learned counsel for the appellant submits that the Courts below have erred in dismissing the suit filed by the appellant. He further submits that

the trial Court did not properly appreciate the controversy involved in the matter and it also did not appreciate the ocular as well as documentary

evidence available on record. He also argues that the finding recorded by both the Courts below are perverse and without appreciation of

evidence on record.

I have heard learned counsel for the appellant and perused the record. From perusal of the record, as well as the judgment and decree passed

by both Courts below I found that the judgment and decree passed by both the Courts below are well reasoned and are based on proper

appreciation of ocular as well as documentary evidence on record. The findings of facts as recorded by both the Courts below are concurrent

findings which does not require any interference by exercising the power under Section 100 of the C.P.C. Learned counsel for the appellant has

failed to show that how the finding of facts recorded by the Courts below is illegal, perverse or based on no evidence. Thus, no substantial

question of law arises for consideration in this appeal.

The Supreme Court in number of cases has held that in exe rcise of powers under Section 100 of the Code of Civil Procedure can interfere with

the findings of fact only if the same is shown to be perverse and based on no evidence. Some of these judgments are Hajazat Hussain vs. Abdul

Majeed & others, 2011 (7) SCC, 189, Union of India vs. Ibrahim Uddin, 2012 (8) SCC 148 and Vishwanath Agrawal vs. Sarla Vishwanath

Agrawal, 2012 (7) SCC, 288.

For the aforesaid reasons, no substantial question of law arises for consideration in this appeal. The appeal fails and is hereby dismissed.

Certified copy as per rules.