Navgorangdas vs Ram Singh

Prem Shanker Asopa, J.—By this second appeal, the defendant-appellant has challenged the judgment and decree dt. 24.12.2011 passed by the Addl. Distt. Judge No. 1, Deeg, Distt. Bharatpur in Civil Appeal No. 24/2009 whereby the appeal filed by the plaintiff-respondent has been allowed and the judgment and decree dt. 01.09.2009 and 07.09.2009 respectively passed by the Civil Judge, Junior Division, Deeg in Civil Suit No. 91/2001 titled Ram Singh vs. Nav Gorang Das have been set aside and the suit has been decreed with costs. The facts, in brief, of the case are that the plaintiff-respondent filed a civil suit for permanent injunction in respect of the public way shown in the site plan, with the averments that he is using the said public way since long for going to and coming from his fields. The said way is also a part of Brij Chorasi Kose Parikrama and the defendant-respondent had encroached upon this and also made some construction over it, therefore, the civil suit was filed seeking the relief of permanent injunction against the defendant to the effect that the defendant be restrained from raising any construction on the way in question which was being used by the plaintiff and not to create any hindrance in the way.

The defendant-respondent filed the written statement and stated therein that the said land is not of public way and is of the Trust whereon he has constructed the public water hut and using the same for consumption of water by the pilgrims.

In support of his case, the plaintiff produced in evidence Ram Singh (PW-1), Brij Behari (PW-2), Gillo Singh (PW-3), Virendra Singh (PW-4), Tej Singh (PW-5) and Jaipal Singh (PW-6) and also exhibited documents Ex. 1 and Ex. 2. In defence, the defendant produced in evidence Nav Gorangdas (DW-1), Manpal (DW-2), Ram Swaroop (DW-3) and Than Singh (DW-4) and also exhibited documents Ex. A-1 to Ex. A.8.

On the pleadings of the parties, the trial Court framed three Issues, out of which Issue No. 1 relating to the use of the public way and entitlement of the plaintiff for a decree of permanent injunction, is the most relevant issue for the purpose of deciding the civil suit as well as this appeal.

The trial Court, on consideration of the oral evidence as well as documentary evidence, found that the plaintiff had no case and dismissed the civil suit vide judgment and decree dt. 01.09.2009, against which, the plaintiff filed an appeal before the Addl. Distt. Judge No. 1, Deeg, Distt. Bharatpur.

The appellate Court, on consideration of the oral evidence as well as documentary evidence and more particularly, the evidence of DW-2 Manpal who has also admitted that the said disputed part is a way and gave the finding that the same is a public way. The relevant portion of the judgment of the lower appellate Court is as follows:

Submission of the counsel for the defendant-appellant is that the Trust was the necessary party and further the plaintiff has utterly failed to prove that the said disputed site is a way.

Counsel for the plaintiff-respondent has supported the judgment and decree of the appellate Court and has further submitted that there is no substantial question of law involved in this appeal.

I have gone through record of the second appeal and further considered the rival submission of the counsel for the parties. On consideration of the same, I am of the view that the appellate Court has rightly reversed the finding of the trial Court on Issue No. 1, after consideration of the material on record as well as the evidence of DW-2 Manpal who has admitted that the disputed site is a way and gave the finding that the same is a public way. The legal objections raised by the defendant with regard to non-impleading the Trust as a party and further not filing the suit in representative capacity under Order 1 Rule 8 CPC have rightly been rejected by the appellate Court and further, I am also of the view that the same are not the relevant question of law for the purpose of grant of permanent injunction in favour of the plaintiff-respondent. No substantial question of law is involved in this appeal and therefore, the same is dismissed.