Vaijinath vs Gopal and Others

A.N. Venugopal Gowda, J.—The plaintiff is the appellant. He had filed the suit to pass a decree of declaration and declare him as the absolute owner and possessor of the suit land - agricultural property and also pass a decree of mandatory injunction against the defendants, directing them to remove/demolish the construction of platform and the erected Holy Cross of Jesus, on the Northern bandara of the land bearing Sy. No. 5/p1, situated at Sipalgera Village (Meeragunj), Bidar. He contended that he is the owner in possession of suit land, the same being his ancestral property and fell to his share in a oral partition and that towards Northern side, over bandara of the suit land, there is a cart way in existence, since time immemorial, to ingress and egress to the suit land and that the said cart way passes through the Government barren land and exists on the North of his property - suit land, and that the defendants with an intention to block the cart way, constructed a platform for erection of Holy Cross of Jesus in the Government land and thereby closed the right of easement, in the year 2008.

The defendant Nos. 1 to 3 admitted the ownership of the plaintiff over the suit land, but denied the existence of cart way and easementary right of the plaintiff over the Government land, as averred in the plaint. They contended that the defendant No. 4, after conducting an enquiry, allotted certain area in their favour for the purpose of construction of the platform and erection of Holy Cross of Jesus and issued construction permission. It was further contended that abutting to the East of the suit land, there is Bidar - Gadgi road and that the plaintiff and his ancestors are using the said road to reach their land and thus, it is not necessary as there is another way, to reach the suit land. It was stated that no construction of whatsoever nature was made on the land belonging to the plaintiff and that the plaintiff is not entitled to any relief in respect of the non-suit land, wherein, the Church constructed the platform and erected the Holy Cross of Jesus.

Defendant No. 4 filed written statement and contended that there is a road to the North of the suit land and there after the Government land, wherein the Government land, Methodist Church exists. It was stated that the church is not situated in any portion of the plaintiff''s suit land and that the suit being not maintainable, may be dismissed.

The Trial Judge, having regard to the pleadings of the parties, framed the following issues:

1) Whether plaintiff proves that he is the owner in possession of suit land?

2) Whether plaintiff proves that defendants have illegally constructed a platform within the area of suit land towards northern side? Whether he further proves that due to such illegal construction of platform, he is deprived from his right of easement to the cart-way situated towards northern bandara of suit land?

3) Whether plaintiff is entitled for mandatory injunction for demolition of illegal and unauthorized construction as prayed for?

4) What order or decree?

Plaintiff got himself examined as P.W. 1 and examined another witness and marked Exs. P-1 to P-5. For the defendants, D.Ws. 1 and 2 deposed, through whom Exs. D-1 and D-2 were marked. The learned Trial Judge, considering the rival contentions and upon appreciation of the evidence held that the plaintiff is the owner in possession of the suit land. However, the plaintiff having failed to prove that the defendants as having illegally constructed the platform, within the area of suit land towards Northern side and as the platform constructed by the defendants does not deprive him of his right of easement, answered issue No. 2 in the negative. He further held that the plaintiff is not entitled for decree of mandatory injunction for demolition of the platform and the Holy Cross of Jesus, erected therein. As a result, the suit was dismissed.

An appeal having been filed by the plaintiff, under Section 96 CPC, the Additional Senior Civil Judge, Bidar, considering the rival contentions and the record of the suit, raised the following points:

1) Whether the findings of the trial court on its issue No. 2 and are erroneous, capricious, unjudicious and requires for interference?

2) What order?

On fresh assessment of the evidence, noticing that the plaintiff/P.W. 1 has admitted, that to the East of his land, there exists Bidar - Gadgi road, and that he along with his brothers reach their land through the said road only, held that, there is no necessity for the plaintiff to use the cart way to reach his land. It has been further held that there being neither any pleading nor proof with regard to easementary right, either by prescription or by necessity or by grant, the claim of the plaintiff for mandatory injunction is untenable. Finding that the plaintiff has failed to establish that the defendants have put up construction over the Northern bandara of the suit land and the appeal having been found to be devoid of merit, dismissed the same with costs.

Sri K.M. Ghate, learned advocate, contended that the courts below have committed error in dismissing the suit and the appeal. He submitted that the material evidence has not been correctly appreciated and the denial of decree of mandatory injunction being illegal and substantial questions of law having arisen for consideration, this second appeal is maintainable.

Appellant has not produced any title deed. Exs.P-1 to P-3 are revenue records and are not the document/s of title. They merely raise a presumption with regard to the possession and pertain to the land of the plaintiff. There being no dispute with regard to the holding of land measuring 4 acres in Sy. No. 5/p1 of Sipalgera Village, the decree of declaration, though unnecessary, has been granted. The platform and the Holy Cross of Jesus in question, having not been constructed on any portion of the said property belonging to the plaintiff and there being lack of pleading and proof with regard to the easementary right, the discretionary relief of mandatory injunction has been denied.

Indisputedly, the platform and the Holy Cross of Jesus in question, has not been constructed in any portion of the plaintiff''s property i.e., in Sy. No. 5/p1 of Sipalgera Village. Admittedly, the plaintiff is having access to his land through the Bidar - Gadgi Road, which he and his brothers are making use of to reach their respective properties. As the easementary right, either by prescription or by necessity or by grant, has not been established by pleading and by placing on record, the proof, the learned Trial Judge is justified in dismissing the suit and the learned Appellate Judge is justified in dismissing the appeal. Both the courts below have recorded findings with reference to the evidence, both oral and documentary, brought on record of the suit by both parties. The findings was not shown to be perverse and cannot be characterized as surmises and conjunctures. There is no misreading of the evidence. Hence, there is no scope for this Court to interfere with the pure finding of fact, in exercise of power under Section 100 CPC. The impugned judgments have not given raise to any substantial question of law.

In the result, the appeal, for want of substantial question of law, is not maintainable and is rejected.