Mohani Bai vs Ganpat Singh

This appeal is directed against the judgment & decree dated 18/3/2016 passed by Sr. Civil Judge, Nathdwara, District Rajsamand and judgment & decree dated 19/5/2018 passed by Addl. District Judge, Nathdwara, whereby, the suit and appeal filed by the appellant have been dismissed, respectively.

The appellant filed a suit for permanent and mandatory injunction inter alia with the averments that she purchased a plot of land in village Gunjol by way of registered sale deed from Pyari Bai on 9/8/2004, which plot initially belonged to Shanker Lal, who had purchased it on 3/7/1985. It was claimed that on the northern side of the plot there was a 25 ft. wide public way, which lead to National Highway No.8. It was alleged that the respondent forcibly encroached the public way by bringing building material and  starting construction on the said public way and attempted to close the entrance and window of the appellant opening on the northern side. It was prayed that the respondent be restrained by way of permanent injunction from raising construction on northern side of the plot, which apparently is a public way and if during the pendency of the suit any construction is raised, the same may be ordered to be demolished.

The respondent filed a written statement and denied the allegations.

The trial court framed two issues and came to the conclusion that the claim made by plaintiff pertaining to existence of 25 ft. wide public road on northern side of the plot was belied from the contents of the sale deed in her favour, wherein, the road has been indicated as 20 ft. wide and that the plaintiff in her statement herself has admitted that the road, as indicated in the sale deed exists and as the plaintiff failed to prove any obstruction having been done by the defendant, it was found that the plaintiff had failed to prove her case and dismissed the suit.

Feeling aggrieved, the appellant filed first appeal. The first appellate court after hearing the parties, reiterated the findings recorded by the trial court and dismissed the appeal.

Learned counsel for the appellant made submissions that both the courts below were not justified in dismissing the suit & appeal filed by the appellant merely on account of difference between the averments made in the plaint pertaining to the width of the road and the width indicated in the sale deed. Submissions have been made that even after the claim was made regarding existence of 25 ft. wide road and sale deed indicated 20 ft. wide road, the courts below should have granted a decree for 20 ft. at  least and, therefore, the judgments impugned are per se illegal and, therefore, same give rise to substantial questions of law.

I have considered the submissions made by learned counsel for the appellant and have perused the material available on record as well as the record of both the courts below.

A perusal of the averments made in the plaint reveals that the plaintiff, after making averments pertaining to the status of her own plot, in para 4 of the plaint made allegations that the defendant was seeking to trespass on the public road and has employed workers for raising permanent construction and has forcibly closed the doors of her rooms and way to her house and on objecting to the same, he threatened with police action. Based on which the relief of temporary/permanent injunction was sought in the suit.

When the plaintiff came in witness box as P.W.1, in her cross examination, inter alia stated as under:

"जिरह वकील प्रतिवादी:- यह सही है कि विक्रय पत्र प्रदर्ष - 1 के उत्तर दिषा में आम रास्ता 20 फीट चैड़ा दर्षाया गया है। यह सही है कि मैंने अपने वादपत्र के पैरा सं. 03 में उत्तर दिषा के रास्ते की चैड़ाई 25 फीट होना दर्षाया है। यह सही है कि दावें में अंकित 25 फीट रास्ता सही है। म्ग-1 रजिस्ट्री में वर्णित 20 फीट रास्ता गलत है। मैंने जब मकान खरीदा तब वहाँ रास्ता विद्यमान था। यह सही है कि मैंने जब मकान मय भुखण्ड खरीदा तब उत्तर दिषा में जितना रास्ता था तब उतना रास्ता आज भी विद्यमान है।"

A perusal of the cross examination clearly reveals that despite indication of existence of 20 ft. wide road in the sale deed, the plaintiff claimed existence of 25 ft. wide road and when she was confronted, she alleged that the indication made in the sale deed was incorrect. The plea raised by a purchaser seeking to dispute the contents of sale deed, apparently could not be  countenanced by the two courts below. She further stated that when she purchased the house, the public way was existing and width of the same continued to be the same on the date of statement.

In view of the statement of plaintiff, apparently, she had no cause even to approach the court inasmuch as the allegations were pertaining to raising of construction and blocking her entrance as well as gates of her room, which allegations were belied by her own statement. In those circumstances, the courts below were justified in rejecting the case of the plaintiff.

The submissions made by learned counsel for the appellant that irrespective of the pleadings and the evidence, the courts below should have granted relief qua 20 ft. wide road also has no substance inasmuch as once it was found that the way as was available at the time of purchase of the plot/house by the plaintiff was existing, there was no reason to grant a decree of injunction only to ensure that the indication made in the sale deed is maintained for all times to come in absence of any cause i.e. obstruction having been created by the defendant.

In view of the above discussion, there is no substance in the appeal and the same is, therefore, dismissed.