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Judgment
A.V. Chandrashekara, J.—Heard the learned counsel for the parties. The matter has already been admitted on 10.3.2010 and the following substantial question of law has been framed:
"Whether the lower appellate court was justified in reversing the judgment and decree of the trial court when the plaintiffs have failed to produce any evidence in support of their contention that it is a private lane?"
The 1st defendant of O.S. 83/89 which was pending on the file of Civil Judge, Raichur, has filed this appeal under Section 100 , C.P.C. being aggrieved by the divergent judgment passed by the first appellate court, i.e. Fast Track Court-IV, Raichur, in R.A. 231/04. The 1st respondent is the sole plaintiff and 2nd respondent is the 2nd defendant. Parties will be referred to as plaintiff and defendants as per their ranking before the trial court.
Plaintiff is stated to be belonging to Jain community and s residing at Raichur and the 1st defendant has a residential house to the west of 2'' width lane between their houses. According to him, the said lane absolutely belonged to him and defendant has no manner of right, title and interest in respect of the said 2'' lane. According to him, defendant has opened a door facing the said lane and it has invaded his privacy. It is further averred that the plaintiff put up a building by obtaining permission and licence from the City Municipality, Raichur and this lane is shown as one absolutely belonging to the plaintiff.
The 1st defendant had obtained a decree for injunction against the 2nd defendant in O.S. 141/79 dated 31.9.1989 and that decree is stated to be not binding on the plaintiff. Hence the plaintiff had requested the court to declare that the said decree passed in O.S. 141/79 does not bind him in any manner.
Following are the reliefs sought for in the plaint:
"It is therefore prayed that the Hon''ble court may be pleased to decree the Plaintiffs suit as under:
That the Swethamber Sthanak Vasi Shraah Sangha Raichur is the owner of the private lane existing towards west of the defendant No. 1''s house bearing M. No. 11-8-1 Brasth warpet, Raichur.
That the decree passed on O.S. No. 141 of 1979 dated 30.01.1980 by the learned Munsiff, Raichur a certified copy of the same is annexed with this plaint is illegal void without jurisdiction and inoperative against Swethamber Sthanak Vasi Shraah Sangha Raichur or the members of the Jain community including the Plaintiff.
That the defendant No. her agents servants and heirs and successors be and are restrained permanently from opening doors or windows or ventilators any openings in the western wall of the defendant No. 1 bearing M. No. 11.3.1 Breath warpath Raichur by granting permanent injunction.
That a decree for mandatory injunction be passed directing the defendant No. 1 to dismantle and remove the wall approximately measuring 43 fast north-south on the western side of the defendant No. 1''s house and to reconstruct the same without installing any doors an ventilators, water outlets etc., and in case the defendant No. 1 fails to do so the same may be dismantled and reconstructed through process of that court.
Caste of the court may be awarded.
Any other relief in the circumstances of the case the plaintiff Swethamber Sthanak Vasi Shraah Sangha Raichur are entitled for may be granted."
The 1st defendant had filed a detailed written statement denying all material averments. According to her, the disputed lane is shown as the western boundary in the sale deed obtained by her in the year 1977. According to her, the lane in question is common both to the plaintiff and defendant and that plaintiff does not have any absolute right over the same. She is stated to have put up construction in the property purchased by her in the year 1977 and that decree was obtained against the 2nd defendant-Municipality in O.S. 141/79. According to the 1st defendant, she had obtained valid permission to open the door in her building facing the lane. It was subsequently withdrawn on 25.4.1979 in No. B/103/78-79. According to her, the order passed by the Municipality Commissioner is void and without jurisdiction and therefore the judgment and decree passed in O.S. 141/79 definitely binds the plaintiff.
The City Municipality-2nd defendant had not filed written statement. On the basis of the pleadings, the following issues were framed by the trial court:
"i. Whether the plaintiff proves that the whole Jain community established the plaintiff Sangha?
ii. Whether Hukmichand s/o Sampatraj Kothari is a member of the Plaintiff Sangha and has been validity authorised by the Jain community of Raichur to file the suit?
iii. Whether the suit is not maintainable without impleading all the members of the Jain community and the suit in present form is not maintainable?
iv. Whether the Plaintiff proves that the Decree passed by the learned Munsiff in O.S. No. 141 of 1979 is illegal void and without jurisdiction and in operative against the Sangha or members of Jain community?
v. Whether this court is no competent to cancel the decree passed in O.S. No. 141 of 1979?
vi. Whether this court is not competent to decide the legality or otherwise of the decree in O.S No. 141 of 1979?
vii. Whether the court fee paid is sufficient?
viii. What order?"
ADDITIONAL ISSUES
"i. Whether t he plaintiff proves that the suit land is a private land and part of house No. 3.9.10 of Brestwarpeth, Raichur belonging to the plaintiff?
ii. Whether the defendants is entitled to use the same and to open her doors and other openings as contended in para No. 8 of written statement?"
Hukmichand is examined as P.W. 1 and 3 witnesses were examined on his behalf and 5 exhibits were got marked. In all 2 witnesses were examined on behalf of the 1st defendant and 8 exhibits were got marked. Ultimately the suit came to be dismissed by answering issue Nos. 1, 2 and 4 I the negative and the remaining issues in the affirmative.
As against such judgment and decree, an appeal was filed before the Senior Civil Judge, Raichur, which was withdrawn and transferred to Fast Track Court-IV and numbered as R.A. 231/04. Ultimately the learned judge of the first appellate court has allowed the appeal by framing the following points for consideration as found at page 15 of the impugned judgment. It is this divergent judgment which is called in question in this appeal on various grounds as set out in the appeal memo.
As already discussed, the matter has been admitted by formulating the above substantial questions of law. If the first appellate court wants to upturn the considered judgment of the trial court, it has to assign valid and cogent reasons indicating as to where the trial court has gone wrong and what should have been the right approach. Principles to this effect have been succinctly enunciated in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., . The first appellate court is the final court of facts and it has to re-assess the material on record on the touchstone of intrinsic probabilities.
The plaintiff has claimed the relief of declaration on the basis of sale deed said to have been obtained by him, but the same has not been produced to show the exact area and the dimension and boundaries of the property. This aspect of the matter has been well considered by the first appellate court in paragraph 28 of the judgment. For better appreciation of the facts of the case, the entire paragraph 28 of the appellate court is extracted below:
"28. The main dispute between the Plaintiff and defendant No. 1 is with respect to the wall said to have situated to the cast of the lane and also lane situated to the west of house of the defendant No. 1. The existence of lane is not in dispute. According to the Plaintiff and say of P.W. 1 to 3 the lane in dispute is the lane belonging to the Jain Math and not the public lane. The P.W. 1 has also reiterated the plaint allegations in his examination-in-chief. It may be noted that the plaintiff Sangh has not produced the sale deed to show from whom the site where the Jain Math has been constructed was purchased, what was the area purchased, what was the boundaries described for the property purchased by the Jain Sangh or Math, whet her the eastern boundary of the property of the Jain Math is described as lane or house of defendant No. 1 or her vendor, whether the existence of eastern wall on which the Plaintiff claims right was shown in the s ale deed, whether only western wall of defendant No. 1''s house is the boundary line for the Plaintiffs property, whether the alleged eastern wall on which the Plaintiff claims right and western wall of defendant No. 1''s house are independent, whether there were doors, ventilators, water spouts in the western wall of defendant No. 1''s house etc. In the absence of sale deed relying only on the document Ex. P.2 i.e., approved map or approved plan of the building prepared at the time of obtaining permission from the CMC for construction of the first floor of the Jain Math is not proper. However, Plaintiff is relying on the document i.e., approved plan Ex. P.2 it was the map or plan or sketch of the building proposed to be constructed during 1954. It is an admitted fact that the Jain Math obtained the permission for the construction of first floor during 1954 and at the time of obtaining permission for construction of first floor. This Ex. P.2 plan was prepared and this plan was approved by the municipality. It was the plan submitted to the municipality while getting the permission for construction of the first floor of Jain Math. According to the argument of the Advocate for appellant, it is 30 years old document and hence presumption can be drawn as provided u/s. 90 of evidence Act. It may be noted that it was not the sketch or plan given by the vendor of Plaintiff math or sangh along with sale deed. It was the plan prepared by the Plaintiff Sangh or Math for the purpose of obtaining construction permission from the CMC for construction the first floor of the Jain Math as proposed in the plan Ex. P.2. So, no such presumption can be drawn as provided u/s. 90 of Indian Evidence Act ''Merely because that it is a document of 30 years old. I do not find any force or substance in the argument of learned Advocate for appellant. Moreover the defendant No. 1 vendor is not party to the document. Even it is not the evidence of P.W. 1 that the sale of the property where the Jain Math constructed was the first sale and it was the property of same vendor who sold the property to the defendant No. 1. Defendant No. 1 vendor neither executants of the sale deed in favour of Plaintiff Sangh nor has he attestor of such sale deed executed in favour of Plaintiff Sangh. So, in the absence of sale deed by the Plaintiff showing Sangh. So, in the absence of sale deed by the Plaintiff showing the correct description of the property, now only course open to the court to analyse and assess the oral evidence of the properties to the suit. Now the court has to depend upon the circumstances and admission given by the witnesses in their evidence."
The 1st defendant, on the other hand, has produced a sale deed obtained by her from the lawful owner and the same is marked as Ex. D2. The western boundary of the property purchased by her is shown as a land and thereafter Marwadi Mutt. Just because plaintiff has obtained permission from the Municipality, Raichur, before putting up construction would not make out a clear case of absolute title over the disputed 2'' lane existing between the building of the plaintiff and the house of the 1st defendant. On the other hand, the 1st defendant had obtained permission from Raichur Municipality to put up a residential house ion the property purchased by her in 1977 and the said permission was subsequently withdrawn by the 2nd defendant-Municipality at the instance of the plaintiff. Therefore 1st defendant chose to file a suit in O.S. 141/79 to declare that the order passed by the Municipality of Raichur as invalid and without jurisdiction. The said suit came to be decreed declaring that the said order as without jurisdiction. Therefore, the house put up by the 1st defendant must be deemed to be one put up with valid permission from the competent statutory authority.
When the very judgment of the trial court that the plaintiff has failed to prove the source of its title in respect of the property purchased by it with reference to dimension and boundaries, it must be deemed that the initial burden cast on the plaintiff was not effectively discharged. It need not be reiterated that unless the initial responsibility cast o the plaintiff is effectively discharged, the onus does not shift on the other wide as per the mandate of Sections 101 and 102 of the Evidence Act. Even otherwise, the 1st defendant has to use this lane for the limited purpose of effecting repairs to the western side wall and periodic painting and up-keep of the building. If the 1st defendant is restricted from using this lane on the ground that it absolutely belongs to the plaintiff, more hardship and inconvenience will be caused to 1st defendant than the plaintiff. This aspect of the matter has not been properly analyzed by the first appellate court.
The very observation made by the first appellate court, as found in paragraph 28 of the judgment, would go against the case of the plaintiff. AIN this view of the matter, this court is of the opinion that the firs appellate court has adopted a wrong approach to the real stare of affairs and the evidence on record has not been tested on the touchstone of intrinsic probabilities. In the light of the inability of the plaintiff to produce any satisfactory evidence relating to its contention that it is the absolute owner, decreeing the suit by the first appellate court is incorrect and improper. As a result of the same, it has caused great injustice and hardship to the 1st defendant. Accordingly the appeal will have to be allowed.
In the result, the following order is passed;
The appeal is allowed the judgment of the first appellate court in R.A. 231/04 is set aside. Consequently the judgment of the trial court in O.S. 83/89 is restored. Parties to bear their own costs. It is made clear that the people entering the Mutt premises have the right to use this lane since the 1st defendant does not claim any absolute right over the disputed lane.