Radha Mohan Shaw And Ors vs Kapildeo Sharma

This appeal under Section 100 of the Code of Civil Procedure has been filed by the defendant-appellants challenging the judgment and decree dated 28th April, 2012 passed in Title Appeal No.17 of 2011 by the Principal District Judge, Jamtara whereby he has dismissed the appeal and upheld the judgment passed by the Civil Judge-cum-Chief Judicial Magistrate, Jamtara in Title Suit No.88 of 1990.

Title suit was initiated by the plaintiff-respondent, who prayed for declaration that the defendant-appellant has got no right, title and interest over the passage (suit land) for making any construction or using the same as drain. Further relief has been sought to restrain the defendant from encroaching the passage and making any construction.

The case of the plaintiff is that the Mouza Mihijam, Plot No.34 along with other lands belonged to Babu Gopinath Pal. Gopinath Pal had two sons, namely, Madhusudan Pal and Ashok Kumar Pal. The land devolved upon both the brothers on the death of Gopinath Pal. Both the brothers partitioned their properties and came in possession of their respective individual shares. Plot No.34 of Mouza Pal Bagan, Mihijam fell in share of Madhusudan Pal. He, thereafter started to sell portions of the said land to different persons after making plots. 4.5 decimal land of plot No.34, Mihizam, marked as 7/B in the map was purchased by the plaintiff. He constructed his house and started residing there. Another part of the said plot being numbered as 9/M was purchased by Gouri Shankar Shaw, predecessor of the defendant-appellants and he started residing there after constructing the house. There is a passage in between these two plots, which was left open by the vendor for ingress and egress of the plaintiff, who purchased sub plot 7/B. It is the case of the plaintiff that with a malafide intention, the defendants created an opening through the said passage for flowing water of his premises (9/M), which the defendants could not have done. The defendants have used the passage for the purpose of drainage, which has created hindrance to the plaintiff for which the suit has been filed.

The defendants filed their written statement and admitted that sub plot 9/M belongs to them, which they have purchased by registered sale deed dated 24.06.1978. Their plea is that the said open space was kept for drainage purpose. They admitted that the passage is being used by the other purchasers. It is their case that the plaintiff has neither purchased the land nor he needs the land in any way nor he has got right over the property, rather the right is common to all and the defendants are also using the said passage. It is their claim that the plaintiff has got no right to obstruct the defendants from using the said passage.

The Trial Court framed four issues and proceeded with the trial. The plaintiff examined six witnesses and proved the registered deed of sale. The defendants also examined four witness on their behalf, but, no documentary evidence were adduced. After hearing the parties, on the basis of evidence on record, the Trial Court decreed the suit and restrained the defendants and has held that the defendant has no right to construct any drain over the said passage. The decree of perpetual injunction was passed against the defendant and they were restrained to encroach the passage or to construct any drain.

Aggrieved by the said judgment, the defendants preferred an appeal before the First Appellate Court. The First Appellate Court independently considered the case of the parties and after going through the judgment of the Trial Court, has concurred with the findings of the Trial Court and thus, dismissed the appeal.

Challenging the said judgment, counsel appearing on behalf of the appellants, who were the original defendants, submitted that both the Courts below approached the case from an erroneous angle. He submitted that admittedly, the passage is a common passage, which was to be used by the residents. He submits that when the passage is common, no restraint order could have been passed against the defendants. He submits that rights of easement are also in favour of the defendants, thus, the judgment and decrees are bad. He submits that the defendants' construction was prior in time and thus, the order of restraint is also bad.

I have heard the counsel for the parties and have gone through the judgment of both the Courts below.

Existence of passage is admitted. It is admitted that the passage is common. From the judgments, it is clear that the defendants have made an opening from their house to drain out sewage water in the said passage and was using the same for the purpose of drain. The plaintiff has prayed to restrain the defendant from using the said passage, which is common for the purpose of drain. After going through the judgments, I find that both the Courts below have also, on the basis of evidence of the witnesses, found that the common passage, which is subject matter of the suit, was left open for ingress and egress of plaintiff, who is occupying sub plot No.7/B and other purchasers of sub plots 7/C and 7/A and for drainage of sewage water. A drain is also there in the southern portion of the passage. The Courts have held that this portion, i.e., open passage has been left open for inhabitants of sub plots 7/A, 7/B and 7/C and not for the defendants who are in sub plot 9/M, because the defendants have a passage of 20' wide road, which is frontage and the slope of the house of the defendants is towards the road itself on the eastern side. The Trial Court has held that intention of the landlord (the original owner of the property) was certainly not to give drainage or opening to the defendants in the disputed passage as the defendants have themselves a 20' wide road. The Court has also come to a finding that on 20' wide road, sub plot No.9/M, 9/N, 9/L, 9/K, 9/J, 9/R are situated and the main gate of sub plot 9/M opens towards the main road and sub plot 7/B (plaintiff's premises) is not situated on any road, therefore, passage has been left for the plaintiff (7/B) and others, i.e., sub plots 7/C and 7/A. Both the Courts came to the concurrent finding and have held that the defendants have no right, title or interest over the land and they have no right to construct any drain over the said passage and the defendants have been restrained from encroaching the said passage.

I find that the aforesaid findings of facts are since concurrent findings, the same cannot be set aside by this Court. When a factual finding is given that this passage has been left for the plaintiff and the occupants of sub plots 7/C and 7/A and not for the occupants of sub plots 9/M (defendant), which has a 20' wide road in front of the house, no relief can be granted to the appellant in this case. Further, I find that the Courts below have restrained the defendants from constructing any drain over the said passage and the defendants are restrained by way of perpetual injunction to encroach the passage or to construct any drain and they have also been restrained from making any disturbance or creating any nuisance in using the passage by the plaintiff.

Thus, on the facts, no fault can be found in both the judgments of the Trial Court and the First Appellate Court. Appellants have failed to formulate any question of law far less a substantial question of law, which, if answered in favour of the appellant could have a different impact on the judgments.

In view of the aforesaid findings, this appeal is hereby dismissed.