Mandir Murti Mari Mata vs Deepak Sharma

Rohit Arya, J.—This appeal by the plaintiff u/s 100 CPC is directed against the concurring judgment and decree dated 30/01/2006 passed in civil appeal No. 52A/2005 by Additional District Judge (N.D.P.S. Act), Gwalior District Gwalior affirming the judgment and decree dated 30/06/2005 passed in civil suit No. 117A/2004 by VIII Civil Judge, Class-II, Gwalior, plaintiff''s suit for closing the windows and removal of iron rods projected from the defendants'' school has been dismissed.

Plaintiff, in the suit pleaded that on the eastern side of the house of the plaintiff, a school in the name of Rashmi Bal Vihar is being run by the defendants. Defendants have opened windows and intended to raise construction beyond the boundaries of the house/school contrary to the sanctioned map dated 07/04/1993 obtained from the Municipal Corporation, Gwalior and according to plaintiff, except in the northern side, the remaining sides, the defendants are not entitled for such construction and as such, plaintiff''s easementary right is protected. Therefore, instant suit is filed for the aforesaid relief.

Defendants have filed written statement and denied plaint allegations. It is submitted that in fact, the construction is only as per the sanctioned map attached with the sale deed dated 16/11/1973 in respect of the house/school already existing thereon. As per the map, there is a passage on the eastern side of the defendants'' school for access to the building. In fact, the construction is existing for the last 30 to 35 years and no new construction has been carried out, the suit is fabricated and merits dismissal.

On the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. It has been found that the property shown by the plaintiff is a trust property, however, there is no authorisation in favour of plaintiff authorising to file the instant suit and, therefore, the suit was found to be filed by an incompetent person. That apart, trial Court has found that no such house existing as claimed by the plaintiff. Accordingly dismissed the suit. On appeal, the first appellate Court has re-appreciated the oral and documentary evidence on record. Before the first appellate Court an application under Order XLI Rule 27 CPC was filed seeking to bring on record certain khasra entries for the year 2004-05. First appellate Court has found that there is no justifiable reason assigned for not filing the same before the trial Court and, therefore, no sufficient cause was found for having not filed said document before the trial Court. Besides, first appellate Court has also considered the document so produced and observed that averments made in the plaint are not bearing any relevancy of the aforesaid khasra entry as regards house of the plaintiff. Accordingly, rejected the application. It has been found that initially suit was filed by one Om Prakash and later on, the same has been shown to be filed on behalf of the trust by incorporating the amendment. Further there is no documentary evidence on record authorising the trust to file the suit, therefore, suit was found to be not instituted by the competent person. On merits, first appellate Court discussed evidence on record in paragraphs 11 to 14 and negated assertion of plaintiff and found that the plaintiff is not entitled for any relief as claimed.

Having gone through the concurrent impugned judgments rendered by the Courts below and the record of the case, this Court is of the opinion that the Courts below have recorded pure findings of fact based on critical evaluation of the evidence on record. The entire matter at issue is in realm of facts. The findings are fully justified and impregnable in nature. No question of law much less substantial question of law arises warranting interference u/s 100 of the Code.

The appeal sans merit and is dismissed.

Certified copy as per rules.