Krishna Nand vs Rama Nand
2018 Latest Caselaw 3200 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 30.08.2018
 
Delivered on 11.10.2018
 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 754 of 1977
 

 
Appellant :- Krishna Nand
 
Respondent :- Rama Nand
 
Counsel for Appellant :- Satya Prakash
 
Counsel for Respondent :- S.M.Narzar Bokhari
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Satya Prakash, learned counsel for the appellant, Sri S.M.Nazar Bokhari, learned counsel for respondent and perused the record.

2. This is defendant's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"), arising from judgment and decree dated 07.04.1977, passed by Sri R.N.Sinha, III Additional District Judge, Fatehpur in Civil Appeal No.102 of 1976 (Ramanand Vs. Krishna Nand), whereby appeal has been allowed and judgment and decree dated 29.07.1976 and 08.08.1976 respectively, passed by Sri Suraj Singh Raudra, IV Additional Munsif, Fatehpur in Original Suit No.294 of 1972 has been reversed and plaintiff's suit has been decreed in the manner stated in the operative part of the judgment, which I shall discuss in detail later.

3. Though, at the time of admission of appeal on 26.7.1977, I find that this Court did not refer to any substantial question of law arising in this appeal and in fact, even in memo of appeal, no substantial question of law has been formulated but before argument commenced, learned counsel for parties jointly agreed and stated that following two substantial questions of law have arisen in this matter and, therefore, they have addressed the Court on these questions and I am proceeding to decide the same :

i. Whether Court below was justified in holding that suit was not barred by limitation?

ii. Whether finding of Lower Appellate Court (hereinafter referred to as "LAC") holding that there was encroachment upon Rasta and land of Qadeemi Rasta was included in Chabutara is based on evidence on record?

4. Original Suit No. 294 of 1972 was instituted by sole plaintiff Ramanand against sole defendant Krishna Nand vide plaint dated 01.4.1972. Plaint case set up is that plaintiff is resident of Mohalla Chandiayana, City Fatehpur having his own house shown in the map at the bottom of the plaint in blue colour. There is another ancestral house shown in yellow colour in the map. Both the houses are in existence for the last more than 50 years. Plaintiff was three brothers. As a result of partition, house shown by yellow colour fell to the share of Hotanand and defendant Krishna Nand. On the death of Hotanand, half of said house was inherited by plaintiff. Land shown by red and green colour in the map was old Rasta and had been in the use of plaintiff, his relatives and other persons for worship in the Temple and drawing water from well. It was in continuous use for more than 20 years without any interruption. Defendant, taking advantage of plaintiff's absence, started making encroachment and narrowed width of Rasta by extending his Chabutara shown in the map as P, Q4, Q3, Q1, QN, N, N1 and N2 and shown in red colour in the plaint map, in July, 1971. Plaintiff sought permission to sue under Order 1 Rule 8 CPC, seeking mandatory injunction for demolition of Chabutara marked P, Q4, Q3, Q1, QN, N, N1 and N2 shown by red colour in the plaint map and restoration of land in the shape of Rasta. He has also prayed for perpetual injunction restraining defendant from making any construction or from narrowing Rasta in any manner.

5. Defendant contested the suit by filing written statement dated 9.11.1971. He admits situation of houses in para 1 in Mohalla Chandiyana and their existence for more than 50 years. Existence of Rasta and its user by plaintiff and his relative for more than 20 years without any interruption was denied. It was pleaded that suit is barred by limitation and by proviso to Section 34 of Specific Relief Act, 1963 (hereinafter referred to as "Act, 1963") and that land shown by red colour in the map was never included in Rasta but always part of Chabutara. There was no public passage or public road and land shown by red colour was always in possession of defendant. None has acquired customary or easementary right by way of necessity.

6. Trial Court formulated following six issues :

"i. Whether the land shown with red and green colour in the plaint map is a public way as alleged in the plaint?

ii. Whether the defendants have encroached upon the said rasta as alleged in the plaint?

iii. Whether the Chabutra in suit is old as alleged in W.S.?

iv. Whether the suit is within time?

v. Whether the suit is barred by section 34 of the Specific Relief Act?

vi. To what relief, if any, the plaintiff is entitled?"

7. Trial Court answered issues (i), (ii), (iii), (iv) and (v) in negative i.e. against plaintiff. Consequently, it held that plaintiff is not entitled to any relief and answered issue (vi) accordingly and dismissed suit vide judgment and decree dated 29.07.1976 and 08.08.1976, respectively.

8. Plaintiff preferred Civil Appeal No.102 of 1976. LAC though did not formulate any specific point for determination separately but, I find that following points for determination have been considered and adjudicated by LAC :

i. Whether land shown by red colour has been Qadeemi (old) Rasta?

ii. To what extent qadeemi rasta has been narrated by the defendant?

iii. Whether suit is barred by limitation ?

iv. Whether suit is barred by Section 34 of Act, 1963?

9. The first point was answered against defendant holding that Exhibit A6 is a map submitted by defendant seeking permission for construction. His application (Exhibit A-3), report of work agent (Exhibit A-4), copy of order of President refusing to grant permission to build a gate (Exhibit-3), objection of Brij Lal (Exhibit-4), Member's report (Exhibit -5), report of Sanitary Inspector (Exhibit 6), and objection of work agent (Exhibit 7) are sufficient to prove that there was a Qadeemi (old) Rasta in existence. Then point of determination 2 was answered holding that extent of encroachments on Qadimi Rasta (old passage) is between 7 feet 9 inches on the Nali at its entrance from Rasta Kharanja towards west and 5 feet 10 inches towards east i.e. upto Chabutara of the temple. Questions 3 and 4 were answered holding that neither suit was barred by limitation since plaintiff was claiming a customary right of way, and, hence limitation does not apply and suit was not barred by Section 34 of Act, 1963, hence, LAC consequently allowed appeal, set aside judgment and decree passed by Trial Court and decreed the suit with costs directing for demolition of portion of Chabutara of defendant in a way that width of way is restored as 7 feet 9 inches towards west on the Nali at the entrance from Rasta Kharanja and width of that Rasta is restored to 5 feet 10 inches and little more than the middle and 6 feets 4 inches at the other end towards east. Perpetual injunction was also granted restraining defendant-appellant from making any construction and narrowing width of Rasta.

10. Learned counsel for defendant-appellant submitted that documents relating to permission from Local Authority relates to period of 1958, which shows that defendant made alleged construction in 1958-59 and not in 1971, therefore, suit filed in 1972 was patently barred by limitation. He further submitted that customary right was neither pleaded nor any issue was framed nor any evidence was adduced hence LAC in excluding provisions relating to limitation on the ground that plaintiff was claiming customary right has clearly erred in law.

11. Going through the averments contained in plaint, I find that plaintiff-respondent has pleaded that he and others were using disputed passage/road without interruption for more than 20 years and there is no averment whatsoever that he was using the said passage exercising any customary right over the same. Para 3 of plaint shows that pleading was not for customary right but insistence was user for more than 20 years without interruption. Para 3 is reproduced as under :

^^nQk 3- ;g fd uD'kk equlk;uk (sic) vjthukfy'k esa vkjkth eqtgjs jax lq[kZ o lCt dnheh jkLrk gS ftl ij ls gks dj eqn~nbZ vkSj mlls lEcfU/kr O;fDr o mlds eos'kh Hkh jkLrk etdwj ls eqqn~nrgk eqn~nr ls ftl dk tkeuk 20 lky ls cgqr T;knk gks pqdk gS fcyk fdlh jksd Vksd ds b'rgdkdu vken jQ~r djrs gSa vkSj eqgYyk ds nhxj v'k[kkl Hkh blh jkLrs ls efUnj eqtgjs gq:Q ,e0 iwtk djus ds fy;s vkSj dqvka eqtgjs gq:Q MCyww0 ij ikuh oxSjg Hkjus ds fy;s mlh rjg ij vkrs tkrs gSaA**

"Para 3. That the property shown in red and green in the site-map filed in the plaint is an old pathway through which the plaintiff, his acquaintances and his cattle have been commuting since olden time exceeding 20 years asserting their entitlement thereto and without any hindrance as a matter of right; and other persons of the locality (Muhalla) also commute through this very pathway to offer prayers at the temple shown by letter M and to fetch water from the well shown by letter W." (emphasis added)

12. Exhibit A-1 is an application submitted by Krishna Nand and Rama Nand both requesting Chairman, Municipal Board, Fatehpur on 28.8.1958 seeking permission to construct a gate and Jali on their own land. Thereon a report was submitted by work agent Nagar Palika Fatehpur on 02.9.1958 stating that Jali sought to be made on the part of Chabutara can be allowed. The place, where gate is sought to be constructed, is a private passage used by applicants and Prahlad and others for passage. After construction of gate, only Ramanand Pandey would be entitled to use it and passage will stand closed for Prahlad. On the spot, an old boundary of Prahlad is existing and therein there exists a door for use of passage towards south. This has not been shown in the map. The claim of applicants that this boundary should be demolished, as it is encroachment, is a private dispute and so long as parties settle their dispute, Nagar Palika has no role therein. Ultimately, vide Exhibit 3, Sri Nanak Prasad, the then President, Nagar Palika, Fatehpur passed an order dated 07.5.1959 and the said order reads as under :

"Shri Krishna Nand has applied for permission to build a varandah chhajja, jali. In the plan attached he has shown a gate and a jali also to be built with a red colour. There is an other application of August 58 in which he wanted sanction for gate and jali. Subsequently he has made an application that he does not want to construct a chhajji. Shri Brij Lal and Shri Prahlad has filed objection to gate being permitted. The work Agent the S.I. and a member have been the site. I have also inspected the locality, but Shri Prahlad was absent.

The house of Shri Krishna Nand and the objectors face each other leaving a space of land in between. The doors of the applicants houses face north while those of the objectors face south. Shri Krishna Nand has a chabootra to the north of his door, while Brij Lal has a chabootra to the south. The applicant Krishna Nand wants a gate in between the two chabootras. The chabootra of Brij Lal has a boundary wall to its west and south with a door in the south. If the gate is allowed then Brij Lal will be deprived of his passage into his house. Moreover there is a temple to the each of this in between spaces. If the gate is allowed then all worshippers will be deprived of this passage to the temple. Shri Krishna Nand complaints that Shri Brij Lal has extended his chabootra to the south. He is reffered to the Civil Court for it. The following orders will cover both the applicants.

ORDER

Permission to build verandah and jali as in the plan is sanctioned. There should be no projection on the kharanja to the west. The appns for gate is rejected." (emphasis added)

13. Aforesaid documents, therefore, show that application was made in 1958 which was rejected in 1959 vide order dated 07.05.1959 and till then no construction was raised by defendant-appellant on the disputed land/passage. Plaintiff has specifically pleaded that encroachment was made in July, 1971 narrowing down width of passage and in the written statement, averments contained in para 5 of the plaint are denied but it is not stated anywhere as to when the said construction was actually raised. In absence of anything to show that construction was raised at a particular point of time and thereafter limitation commences so as to render suit barred by limitation, even if, we hold that LAC was not justified for excluding plea of limitation on the ground of customary right, still in absence of anything to show that suit was barred by limitation on the basis of averments contained in plaint, it cannot be said that suit was barred by limitation. Therefore question (i) is answered against the defendant-appellant.

14. Now coming to question (ii), evidence which I have already referred to hereinabove clearly shows that defendant-appellant wanted to raise construction so as to restrict the passage which was being used not only by plaintiff-respondent and his family members but others also including non family members. Therefore, findings recorded by LAC that disputed passage is a 'public passage' cannot be faulted and cannot be said as based on no evidence.

15. That being so, factum that earlier passage was unobstructed, defendant-appellant wanted to raise certain construction, which was denied by President, Nagar Palika, hence construction, if any, found on the said passage, is evidently a subsequent construction. Therefore, it has rightly been directed to be demolished for restoration of earlier passage and aforesaid finding cannot said to be without any evidence. Therefore, question (ii) is also answered against defendant-appellant

16. In view of the above, I find no error in the judgment of LAC.

17. The appeal lacks merit and is dismissed with costs.

Order Date :- 11.10.2018

KA