[2023:RJ-JP:26106]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 138/2023
Mahmood S/o Ajijuddin, Aged About 64 Years, Resident Of
Sitabadi, Karauli, Tehsil And District Karauli.
----Appellant-Defendant
Versus
1. Purshottam Das Soni S/o Sh. Pyarelal (Since Deceased)
1/1. Dilip S/o Late Sh. Purshottam
1/2. Sushil Soni S/o Purshottam, Aged About 61 Years, All
Resident Of Sitabadi, Karuali, Tehsil And District Karauli.
----Respondents
For Appellant(s) : Mr. Mukesh Kumar Goyal
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment / Order
03/10/2023
This civil second appeal has been preferred against the judgment and decree dated 19.01.2023 passed by the learned Judge, Family Court, Karauli (Rajasthan) (for brevity "the learned appellate Court") in Regular Civil Appeal No.31/2022, CIS No.31/2022 whereby, while allowing the appeal, the judgment and decree dated 20.08.2022 passed by the learned Senior Civil Judge, Karauli (Rajasthan) (for short "the learned trial Court") dismissing the Regular Civil Suit No.176/2019, CIS No.176/2019 filed by the respondents/plaintiffs (hereinafter referred to as "the plaintiffs") for mandatory and permanent injunction, have been reversed and the suit has been decreed.
The relevant facts in brief are that the plaintiffs filed a suit for mandatory injunction and permanent injunction against the (Downloaded on 11/11/2023 at 08:29:14 PM) [2023:RJ-JP:26106] (2 of 3) [CSA-138/2023] appellant/defendant (for brevity "the defendant") stating therein that over the public way existing in between their house and the house of the defendant, the defendant has put two stone slabs covering it, thereby causing nuisance and restricting their right of light and air as well without any authority of law. Therefore, the decree as aforesaid was prayed for.
The defendant in his written statement, denying the averments made in the plaint, submitted that the subject way is the way in between his houses and the house of the plaintiffs and since, his houses are situated on both sides of the subject way, he has put the slabs to use it as a bridge to join both his houses. It was denied that it causes any nuisance or restricts right of light and air of the plaintiffs. Dismissal of the suit, therefore, was prayed for.
On the basis of pleadings of the parties, the learned trial Court framed six issues including relief. After recording evidence of the respective parties, the learned trial Court dismissed the suit vide judgment and decree dated 20.08.2022. However, the civil first appeal preferred thereagainst by the plaintiffs has been allowed by the learned appellate Court vide judgment and decree dated 19.01.2023 and the suit has been decreed.
Assailing the impugned judgment and decree, the only contention advanced by the learned counsel for the defendant, inviting attention of this Court towards the cross-examination of the plaintiff No.2-Shri Sushil Soni (PW-1), is that he has admitted therein that on account of putting the stone slabs, neither any nuisance is caused nor, the same has obstructed their right to light and air way. He submits that in view thereof, the learned appellate (Downloaded on 11/11/2023 at 08:29:14 PM) [2023:RJ-JP:26106] (3 of 3) [CSA-138/2023] Court erred in decreeing the suit. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 19.01.2023 be quashed and set aside and the suit be dismissed.
Heard. Considered.
While dismissing the suit filed by the plaintiffs, the learned trial Court has been swayed by that part of the statement of Shri Sushil Soni as PW-1 wherein, he has admitted that no nuisance is caused on account of the stone slabs put by the defendant and it does not affect their right of way ignoring and overlooking that no person has any legal right to put any stone slab over the public way or to obstruct it in any manner. Considering this aspect of the matter, the learned appellate Court has, while allowing the first appeal, reversed the findings of the learned trial Court and has decreed the suit. Despite asking specifically as to right of the defendant to put the stone slabs over the public way to use it as a bridge to connect his houses situated towards either side of the subject way, even the learned counsel could not satisfy this Court about any such legal right.
In view thereof, this Court finds no merit in the civil second appeal which is dismissed accordingly.
(MAHENDAR KUMAR GOYAL),J Manish/69 (Downloaded on 11/11/2023 at 08:29:14 PM) Powered by TCPDF (www.tcpdf.org)