Shobha Alias Shobh Nath and Another vs Radhey Shyam and Another

N.K. Mehrotra, J.—This is second civil appeal under Section 100 CPC against the judgment and decree dated 19.2.1980 passed by the District Judge, Sultanpur setting aside the judgment and decree dated 25.5.1979 passed by IVth Additional Munsif by which the suit of the plaintiffs was dismissed with costs.

I have heard Shri Bireshwar Nath, the learned counsel for the defendantappellants and Shri U.P. Singh, the learned counsel for the plaintiffrespondents.

It appears that the plaintiffrespondents filed a suit for permanent and mandatory injunction against the defendantappellants for restrining them from interfering in the use of the alleged underground ''nali'' of the plaintiffrespondents and for demolition of the wall of the defendantappellants alleged to have been constructed over the said underground ''nali'' in dispute. The claim of the plaintiffrespondents is that the northern wall of the new constructions of the defendants has been raised over an underground ''nali'' of the plaintiffs. The ''rasta'' ran over that underground ''nali'' which was used by the plaintiffs and others and the same underground ''nali'' fell in the ''Garhi'' by flowing from east to west and then turning to south and then turning to west. The plaintiffs further alleged that the land lying towards the west of their house has been their land and they acquired easementary right of flowing their ''nali'' and of having their ''rasta'' over the coverage of that ''nali'' while the defendants blocked the same by raising their constructions.

The case of the defendantappellants is that Shiwala, Dalan and well belonged to the defendants. The door of the house of the defendants always opened towards the north. Any ''nali'' did not flow through the disputed land nor any ''rasta'' existed there. The disputed land is a part of the house of the defendants. It is alleged by the defendantappellants that the ''kuchcha'' walls of the defendants had fallen in the floods of 1971 and the plaintiffs built pucca walls in place of the old walls. The disputed land and the land lying towards its south belonged to the defendants. The ''nabdan'' of the hosue of the plaintiffs flowed from the northwestern corner of his house in his own Sahen and it flowed towards the north of the Shiwala and well.

The learned Munsif framed the following eight issues:

Whether the plaintiffs are the owner of the disputed land as alleged in the plaint?

Whether any ''nabdan'' of the plaintiffs flows from the disputed land?

Whether the plaintiffs are entitled for demolition of the construction of the defendants as alleged in the plaint?

Whether the suit of the plaintiffs is barred by time?

Whether the suit is under valued?

Whether the courtfee paid is insufficient?

Whether the defendant No.2 is minor and he is not properly represented?

Whether the plaintiffs are entitled to get any relief? If so, then what relief?

Out of the aforesaid issues, first four issues are material issues.

The learned Munsif has decided issue Nos.1 and 2 against the plaintiffs. The learned Munsif has held that according to the plaintiffs, the passage is a public passage and the plaintiffs have admitted that the passage is used by the defendants. It has also been held by the learned Munsif that the plaintiffs have claimed the land in the north of the disputed land as their own and they have not claimed the disputed land as their own land. Therefore, the plaintiffs are not the owners of the disputed land. Issue No.3 with regard to the relief for demolition of the construction of the defendants is also decided against the plaintiffs. Issue No.4 was decided in favour of the plaintiffs by holding that the suit is not barred by time. The rest of the issues being formal in nature are not being referred.

The defendant (sicplaintiffs) filed first appeal before the District Judge and this appeal has been allowed by the impugned judgment and order dated 19.2.1980. The learned District Judge has held that the learned lower court confused itself in believing that there existed only one ''nali'' near the disputed land. The learned District Judge has held that the Commissioner''s map Paper No.14Ga2 shows that any ''nali'' did not exist towards the northwest of the hosue of the plaintiffs as the defendants claimed. The defendants did not file any objection to the correctness of this part of the Commissioner''s report. According to the District Judge, this Commissioner''s map also shows that there were marks of ''nali'' falling into the ''Garhi'' towards the southwest of the ''Marha'' of defendant Sobha while another pucca ''nali'' existed towards the north of the ''Marha'' of defendant Shobha. Relying on the Commissioner''s report, the learned District Judge has also noted that a ''nali'' was shown to the Commissioner which started from the house of Vipat and Dularey joining the ''nali'' of the plaintiff Radhey Shyam and that the same ''nali'' flowed through the Sahen Darwaza of these three persons and through the disputed foundations of the defendant Shobha. This report further indicated that this ''nali'' was underground. According to the appellate court, the same has been the case of the plaintiffs and this report and the map show that there is a ''nali'' as claimed by the defendants. The pucca ''nali'' existed towards south of the Sarriya of the plaintiffs and towards the north of the Marha of Shobha was not covered and it was a different ''nali'', which was not disputed. The learned appellate Judge has also relied upon the statement of Shobha, D.W.1 (defendant) in which he has admitted that he was not present when the Commissioner had gone to inspect the site but his son was rpresent and that the water of the ''nabdan'' was dropping in the foundations of his house. The learned appellate Judge relied on the admission of the defendants after discussing the entire evidence and it is established that there existed a ''nali'' which the defendants covered by the foundations of his constructions. The learned appellate Judge also relied on the statement of the plaintiffs and held that his ''nali'' and ''rasta'' over that nail existed for a long time. After discussing the evidence, the learned appellate Judge has recorded a finding that the plaintiffs have a right of flowing their nali through the land where the defendants built their foundations in the north of the disputed land, as shown in Paper No.14Ga2.

In this second appeal with the consent of both the learned counsel for the parties, the following substantial questions of law have been framed:

Whether the plaintiffrespondents can claim their easementary right over the disputed ''nali'', which they alleged as their own?

Whether the issue of right of easement can be decided by the first issue without framing the other issues?

Before coming to adjudicate the aforesaid substantial questions of law, I would like to mention here that the defendantappellants have assailed the judgment of the District Judge by contending that the whole judgment is based on spot situation as stated in the Commissioner''s report (Paper No.14Ga2) by saying that the correctness of Commissioner''s map is not disputed. While according to the defendantappellants, the correctness of this map is disputed by the defendants before the trial court below. After perusal of the record, it appears to me that after filing of the Commissioner''s report, the defendants filed objection through Paper No.13C. The main objection of the defendants was that the Commissioner''s map is against the spot situation. The learned Munsif invited objection of the parties against the Commissioner''s report and after hearing both the parties'' counsel, the learned Munsif accepted the Commissioner''s report subject to the objections by passing an order dated 21.8.1978.

At the time of evidence, the defendantappellants have not been able to prove the incorrectness of the spot situation as shown in the Commissioner''s map on the basis of which the learned appellate Judge has discussed the spot situation. The learned appellate Judge has referred in his judgment that defendant Shobha, D.W.1 admitted in para 6 of the statement that he was not present when the Commissioner had gone to inspect the site but his son was present and that the water of the ''nali'' was dropping in the foundation of the house and the learned appellate Judge has taken it to be the admission of the defendants for the purpose of existence of the ''nali'' on the spot. The learned appellate Judge has further pointed out the admission of the defendants that the house of the plaintiff Radhey Shyam existed since prior to the age of his discretion and that the door of his house has been towards west for 20 years. The defendants have also admitted that his Sahan was seven feet wide and the site of the disputed ''nali'' is beyond seven feet. So at the time of the statement, the defendant Shobha has not stated anything about the spot situation in the Commissioner''s map. Therefore, when the defendantappellants have not been able to point out any incorrectness of the Commissioner''s map, there remains no ground to disbelieve the spot situation as shown in the Commissioner''s map.

So far as the first substantial question of law as raised by the defendantappellants is concerned, the case of the defendantappellants is that the plaintiffrespondents cannot claim easementary right over the disputed ''nali'' which they alleged as their own. This question does not arise from the pleadings. The case of the plaintiffs is that the passage over the ''nali'' is a public passage and both the plaintiffs and the defendants use it as passage. The plaintiffs have not claimed the land of the passage as their own. The learned Munsif has also recorded the finding on the basis of the case of the plaintiffs that the plaintiffs are not the owners of the disputed land over which the ''nali'' flows. In the plaint itself, the plaintiffs have elaimed the ''nali'' as their own but not the land over which the ''nali'' is flowing and over which they have claimed their right to flow water in the ''nali'' under the passage for a long. I have seen the statement of P.W.1 Radhey Shyam. He has given the statement that the passage and the underground ''nali'' is more than 5060 years old and he was never interrupted by anybody in the use of this ''nali'' and the defendant Shobha has never claimed his possession over this disputed nali. Therefore, I hold that it is wrong to contend that the plaintiffs have Claimed the easementary right over their own land but they have claimed the right to flow water through the disputed nali, which is underground public passage which is used by the plaintiffs and the defendants and others. Therefore, no interference is required in the findings recorded by the first appellate court that the plaintiffrespondents have been using the disputed ''nali'' under the passage for a long period.

The second substantial question of law raised by the learned counsel for the defendantappellants is that it is for the first time that the first appellate court has recorded the finding of the easementary right in favour of the plaintiffs at the time of allowing the appeal and no such issue was framed on the right of easement. I find that in the trial court, an issue was framed as to whether the ''nali'' of the plaintiffs flows from the disputed land? I also find that there was a pleading in Para 4 of the plaint that the daily use water and the rainwater of the house of the plaintiffs flow in the disputed nali for the last 50 years peacefully and without any interruption. The defendants denied this averment in the written statement by saying that it is wrong that the dirty water of the house of the plaintiffs Vipat and Dulrey has been flowing from the disputed land through any ''nali''. I also find that the plaintiffs have led evidence to establish their easementary right. Therefore, I find that it is not a case wherein there has been neither any pleading nor evidence on the issue of easementary right. The issue No.2 framed by the trial court may not be happily worded but it indicates the right of the plaintiffs to flow the water of their ''nali'' towards the disputed land. In Sayeda Akhtar v. Abdul Ahad, (2003) 7 SCC 52, it was held by the Supreme Court that if, on the basis of relevant pleadings and evidence produced, it appears that the parties were well familiar with the existence of the said issues, in that case nonframing of issues will not cause any prejudice nor the proceedings will be vitiated and in these circumstances it will not be proper to remand the case back in view of the decision of the Supreme Court reported as Dedunuri Kameshwaramma v. Sampati Subba Rao, AIR 1963 SC 884.

In the instant appeal, I also find the pleadings and the evidence and an issue touching the question of easement and after recording the finding on that issue the learned first appellate Judge has allowed the appeal by the impugned judgment. Therefore, it cannot be said that the suit could not be decreed by deciding the issue of right of easement in favour of the plaintiffrespondents.

In view of the reasons given above both the substantial questions of law are decided in favour of the plaintiffrespondents. No other substantial question of law has been either pressed or argued by either of the counsel for the parties.

In view of the above, this appeal is dismissed.

(Appeal dismissed)