Smt. Geeta Devi Sharma vs Bhanwar Singh and Others

Mohammad Rafiq, J.—This is plaintiff''s second appeal assailing the judgment & decree dated 14/8/2008 passed by learned Additional District & Sessions Judge (Fast Track) No. 3, Ajmer Camp Kishangarh whereby, he partly allowed the appeal and modified the judgment and decree dated 10/1/2002 passed by the learned Civil Judge (Junior Division), Kishangarh, District Ajmer by which, the trial court decreed the suit in favour of the plaintiff-appellant. The plaintiff-appellant filed a suit for permanent injunction with the averments that there is a house of his father-in-law Shri Kalyan Dass, in village Ralawata, Tehsil Kishangarh, District Ajmer. The said house is more than 100 years old. After the death of father-in-law, the aforesaid house was partitioned in family settlement amongst his three sons namely; Govind Narain, Prahlad and Radhey Shyam and they are in possession thereof. Along with the plaint, a map was also filed by the plaintiff, stating that the area shown by red colour came in the share of husband of the plaintiff and after partition, the plaintiff and her husband incurred huge expenses in making construction over the said house and they are residing therein since long. It was further stated in the plaint that the area shown by red colour in the annexed map is being used by the plaintiff and her husband since the time of their ancestors. No other person has any concern with that part of the aforesaid property. Thus, the plaintiff and her husband became absolute owner of the property in dispute on the basis of adverse possession. It was further pleaded in the plaint that in the registered patta, the part of the property shown by the red colour has been shown as adjoining part. Towards the southern side of the part shown in red colour, there is a temple of Bhagwan Janki Vallabh Ji and in the aforesaid temple, the defendants have also spent some amount in construction thereof. The Seva Pooja of the temple Shri Janki Vallabh Ji is being done by the plaintiff and his brothers since the time of their ancestors. It was further pleaded in the plaint that on "x" point marked in the map, there is a small door to enter in the temple and the plaintiff and her husband used this door for Seva Pooja in the temple. The door was constructed by them by breaking the wall of their house, which is a private door. It was further mentioned in the plaint that defendants threatened the plaintiff that they will destroy the wall and the door, which opens in the temple and thereafter will raise construction in the temple. The plaintiff prayed in the suit that defendants have no right to remove the wall situated in the southern side of her house therefore the defendants be restrained from permanent injunction from removing the wall in dispute and further raising construction after removing the wall. It was also prayed that the defendants should be restrained from closing the door, which opens in the temple in the southern wall of his house as well as obstructing the plaintiff and her husband in using the aforesaid door and wall.

The defendants filed written statement stating therein that the house in question is not the property of father-in-law of the plaintiff but in fact it is a property of the temple. Previously, there was no house behind the temple but due to intervention of the Gram Panchayat, later on the house situated behind the temple was given to Go Mukhi Temple; therefore the door of the residential house of Pujari was got opened towards the eastern side to facilitate entry of the Pujari. Neither any family settlement was arrived at nor the defendants have any right to partition the property of the temple. Therefore, the plaintiff has no vested right, title and interest in the property of the temple merely on the basis of adverse possession because plaintiff in fact is not the owner of the property in question as the property belongs to the temple. The portion of the house situated backside was not purchased by the plaintiff through any registered sale-deed The plaintiff wants to sale the property of the temple, for which she has no right. It was further stated in the written statement that father of Shri Pratap Singh namely; late Shri Kalyan Singh was Thikanedar of village Ralawata. The temple is a public temple of the village, which came into existence prior to Thikana Ralawata. As the temple is a public property, therefore, the suit filed by the plaintiff claiming one part thereof as her property, is not sustainable under Order 1 Rule 8 CPC. As the father-in-law of the plaintiff was doing the seva pooja of the temple, the property adjoining thereof was given to the plaintiff for residence. The nature of possession of the plaintiff was that of a licensee and not the owner. The suit therefore be dismissed.

On the basis of the pleadings of the parties, the learned trial court framed as many as seven issues, decided all the issues in favour of the plaintiff and decreed the suit of the plaintiff vide judgment and decree dated 10/1/2002. The defendants filed appeal there against before the first appellate court. The first appellate court partly allowed the appeal vide judgment and decree dated 14/8/2008 and modified the judgment and decree of the trial court dated 10/1/2002 restraining the defendants by way of permanent injunction from interfering in the use and possession of the plaintiff except by due process of law and with this modification, set-aside the judgment and decree of the trial court dated 10/1/2002.

Shri Ajay Gupta, learned counsel for the plaintiff-appellant argued that the learned first appellate court has erred in law while deciding Issue No. 1 against the plaintiff and giving finding that plaintiff failed to prove her entitlement to open the door directly into the temple premises. The learned first appellate court has arbitrarily reversed the well reasoned finding of the trial court on Issue No. 1. The appeal therefore be allowed.

Per contra, Shri Vishwajeet Mantri, learned counsel for defendant-respondents opposed the appeal and argued that the learned first appellate court has rightly partly modified the finding of the learned trial court on Issue No. 1 rightly declining the ownership of plaintiff only and rightly set-aside the finding of the learned trial court on Issue No. 1 regarding entitlement of the plaintiff to open the door directly into the temple premises. The judgment and decree of the first appellate court therefore is just and perfect and is not liable to be interfered with by this Court.

I have given my anxious consideration to the rival submissions of the parties and perused the material available on record.

The learned first appellate court held against the appellant on their entitlement to open the door directly into the temple premises. The learned first appellate court rejected the injunction suit filed by the plaintiff and held that she failed to prove any right or entitlement and that right of easement does not accrue in disputed property of someone else and not in the own property of the plaintiff.

The learned first appellate court on the basis of the statements of the witnesses Smt. Geeta Devi (PW1), Satyanarayan (PW2), Govind Singh (PW3) and Govind Narayan Sharma (PW4) held that plaintiff failed to prove her right of easement in relation to entry into temple premises from their house. Learned first appellate court held that Satyanarayan (PW2) has stated that father-in-law of the plaintiff was pujari of the temple, who opened the door in the temple premises for his convenience. Otherwise, there was another way to reach to the temple. Govind Singh (PW3) has also stated that the main gate of the temple opens on the road. Govind Narayan Sharma (PW4) has also stated that temple and house of the plaintiff were divided by a kachcha wall. The appellate court has thus recorded this finding of fact reversing the contrary finding of the trial court.

Judgment of the first appellate court does not suffer from any infirmity or perversity. Appeal does not raise any substantial question of law.

At this stage, learned counsel for the appellant submitted that while recording finding on Issue No. 1, the learned first appellate court even if was not persuaded to grant the injunction as prayed for, but has recorded the findings, raising doubt about the title of the plaintiff-appellant with regard to their house.

It is clarified that if the appellant avails any remedy or otherwise approaches any Court for declaration of her title in the disputed house and is able to independently prove that the patta that she produced was actually pertaining to the house, in which they are presently residing, by adducing evidence, those findings would not come in her way. The appeal is dismissed with the aforesaid observations.