Raj Rani and Ors. vs Bipat Lal

R.N. Ray, J.—This appeal is being preferred against the judgment and decree passed in Civil Appeal No. 273 of 1974 by Sri L.N. Rai learned II Additional District and Sessions Judge, Jhansi. In that appeal the learned appellate court dismissed the appeal and affirmed the judgment and decree dated 18874 passed by Sri Ram Kumar Prajapati in suit No. 836/70.

The respondentplaintiff filed the above suit No. 836/70 against the defendantappellant for possession of the disputed land shown by letters ALFE and ADGHJ in the site plan attached to the plaint, that site plan was made according to proper sketch map and there was no objection in the pleadings regarding the identity of the disputed land. The respondentplaintiff prayed for the possession of the disputed land after demolition of the construction raised thereon by the defendantappellant and for permanent injunction restraining the defendantappellant from making any further construction over in two pieces of land shown in the site plan, in future. It is not disputed that the respondent is not the owner of the house No. 39 Abbott Ganj situate in Cipri Bazar, Jhansi and the defendant appellant is the owner of house Nos. 41 and 42 of Abbott Ganj, Sipri Bazar, Jhansi corresponding to municipal Nos. 749 and 750 respectively. To the west of the house of the defendantappellant there is the house of the plaintiffrespondent that is house Nos. 39 and 38. Earlier all these houses belonged to one Captain Sri N.R. Abbott and the respondent''s father Mithu purchased house Nos. 37, 38 and 39 from the said Captain Sri N.R. Abbott by a registered saledeed dated 1241960. A map of the houses sold by the registered saledeed with the boundaries thereof was annexed with the sale deed which is Ext.l. To the south western side of all these houses, house No. 39 existed and the land is shown as a private lane of the vendor. By the registered sale deed dated 12470 Captain N.R. Abbott the vendor of the plaintiff''s father gave easementary rights over the disputed land which is palpable from Ext1 itself. The defendantappellant purchased his house being Nos. 41 and 42 from the said N.R. Abbott on 8961.

The learned trial court by virtue of Ext1 held that the plaintiffrespondent acquired easementary rights as claimed over the disputed land and there is necessity regarding grant of easement in other disputed land which are used as pathway near the lane for the inmates of the house of plaintiffrespondent and since the vendor of the defendantappellant had no right over the disputed land relating to easement at the time of saledeed in favour of defendant, he could not pass any right or title in respect of the disputed land to the defendantappellant which was purchased on 8961 i.e. so far a later date than the purchase date by the plaintiffappellant''s father. Acquisition of ownership by the plaintiffrespondent of the land covered by Ext1 was not disputed.

The learned trial court after considering the materials before him and on considering the evidences on record was pleased to decree the suit in terms of the prayer as made in the plaint and against that judgment and decree passed by the learned trial court, the defendantappellant preferred an appeal which was also dismissed by the learned appellate court upon holding that the disputed land belonged to the plaintiffrespondent for use and occupation as pathway and both the trial court as well as the lower appellate court have held that the right of easement was acquired by the plaintiffrespondent much prior to acquisition of any title by virtue of the purchased deed relating to the sale deed dated 8961. Both the trial court as well as the lower appellate court gave their findings based on reasonings and there are concurrent findings of fact by which it was held that the plaintiffrespondent had the right of easement over the disputed land and there was illegal construction over the same by the defendantappellant and there was an order for demolition of the same and there was an order of permanent injunction so that in future the defendantappellant may be restrained from putting any obstruction upon the disputed land so that plaintiffrespondent may not feel any inconvenience for proper use and occupation relating to the easementaiy rights.

Leaned Advocate for the defendantappellant submitted that the learned courts below were not correct in view to appreciate the materials on record as both the courts might to have held that those constructions were much prior to the purchase of the plaintiff s father in respect of house Nos. 37, 38 and 39 Abbott Ganj, Sipri Bazar, Jhansi. It has been submitted that Ext1 was not proceed according to law and the learned courts below ought not to have put reliance on the same as such he has prayed that the appeal be allowed and the Judgment and decree passed by both the courts below be set aside.

Learned counsel for the plaintiffrespondent supported the judgment and decree passed by the learned courts below more or less on the same reasonings as had been assigned by the courts blow. Since there is concurrent findings of fact based on reasons, it cannot be said that it is perverse finding and this Court should not disturb the finding of the learned courts below in a second appeal.

Duly considered the submissions of both sides and perused the records particularly the judgment and decree of the learned trial court and also the judgment and decree of lower appellate court and I find that there are concurrent findings of fact relating to the disputed land. The illegal construction made by the defendantappellant after purchase of house Nos. 41 and 42 and it has been held that the plaintiffrespondent acquired valid easementary rights by virtue of purchase of Ext1 which was much prior than the purchase deed of the defendantappellant. The findings of the learned courts below cannot be branded as perverse findings because those findings are based on reasons.

In the circumstances, the second appeal fails and is dismissed. Be it noted that during the pendency of the second appeal the plaintiffrespondent executed the decree and got the demolition of the illegal construction. Hence the appeal is dismissed on contest without costs.

The lower court''s record be sent down to learned court below concerned immediately.