Motiram Chetwani vs Parmeshwari Devi Raisindhani

Rohit Arya, J.—By this petition under Article 227 of the Constitution of India the petitioners/defendants have questioned the legality and validity of the order dated 29/11/2013 by which defendants'' application under Order XIV Rule 5 of CPC has been partially rejected.

Relevant facts giving rise to instant petition are to the effect that the respondents/plaintiffs have filed a suit for easementary rights seeking permanent injunction to restrain the defendants from interfering with the use of Gali adjacent to the house of plaintiffs as right of way as well as light and air. Defendants filed an application under Order XIV Rule 5 of CPC inter alia contending that the plaintiffs have claimed exclusive right to use the aforesaid Gali and, therefore, issues No. 1 and 2, which are related to easementary rights, deserve to be deleted as no easementary right has been claimed in the plaint, instead an issue should be framed ''as to whether the plaintiffs have exclusive right to use the Gali in question''. In reply thereto, respondents/plaintiffs contended that in para 2 of the plaint it has been averred that ever since the time of previous owners of the house owned by the plaintiffs, the Gali is being used exclusively for passage, light and air and in para 3 of the plaint, it has been averred that for last 40 years the plaintiffs are using the aforesaid Gali for easementary rights to the knowledge of the defendants and, therefore, submitted that the issues framed by the trial court are with reference to the pleadings of the parties.

The trial court while adverting to aforesaid indication has held that no illegality has been committed by the trial court in framing issues No. 1 and 2, which are based upon pleadings of parties. However, trial court while partially allowing the application under Order XIV Rule 5 of CPC as regards claim of exclusive use of Gali has also framed an additional issue to the effect ''as to whether plaintiffs have right of exclusive use of Gali''.

Having gone through the impugned order passed by the trial court, this Court is of the opinion that neither there is any illegality nor jurisdictional error in the impugned order of the trial court warranting interference under Article 227 of the Constitution of India. Issues are in relation to the easementary rights as well as exclusive rights. Parties are always free to lead evidence on issues so framed and make submissions with reference to and in context thereof i.e. exclusive use of Gali and easementary rights under the Indian Easements Act, 1882. The petition sans merits is hereby dismissed.