Allahabad High Court
Ram Bilas And 4 Others vs Ram Shanker Verma And 4 Others on 10 April, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 20
Case :- SECOND APPEAL No. - 226 of 2002
Appellant :- Ram Bilas And 4 Others
Respondent :- Ram Shanker Verma And 4 Others
Counsel for Appellant :- Vimal Kishore Verma
Counsel for Respondent :- K.K. Tewari,Kanhaiya Yadav,Panna Lal Gupta,Subrat Gupta
Hon'ble Jaspreet Singh,J.
1. Heard Shri Vimal Kishore Verma, learned counsel for the appellants on admission of the instant second appeal.
2. The instant second appeal has been preferred under Section 100 CPC against the judgment and decree dated 30.08.1996 passed by the Civil Judge (Junior Division), Biswan, District Sitapur in Suit No.193/1993 decreeing the suit and being aggrieved against the said judgment and decree, the defendants-appellants preferred a regular civil appeal under Section 96 CPC, which also came to be dismissed by means of the judgment and decree dated 12.04.2002 passed by the Judge Small Causes Court, Sitapur in Civil Appeal No.158/1996.
3. Being aggrieved against the concurrent judgment and decree, the instant second appeal has been preferred.
4. The submission of the learned counsel for the appellants is that it is a case of the defendants-appellants that the disputed land shown as letters 'A', 'B', 'C' and 'D' is the sehan of the defendants. Evidence was led by the parties which indicated that the land was the sehan of the defendants, but it has not been appropriately considered by the two Courts, resulting in a sheer miscarriage of justice.
5. It is further submitted that the appellants had also moved an application for getting a Commission executed to bring the spot position on record, however, that application came to be rejected and for the said reason also, the impugned judgments suffer from the vice of the arbitrariness. Consequently, the above second appeal deserves to be admitted.
6. The Court has heard learned counsel for the appellants and also perused the material on record.
7. In order to appreciate the controversy involved in the above second appeal, certain brief facts which are relevant is being noticed first.
8. The plaintiffs-respondents No.1 to 3 as plaintiffs instituted a Regular Suit No.193/1993 wherein they have pleaded that the disputed land shown by letters 'A', 'B', 'C' and 'D', is their way and it is being used for egress and ingress including to bring the tractor and trolley right upto their house. It was their specific case that the said land was a public land and the defendants were trying to encroach upon the said land, as a result, the right of egress and ingress of the plaintiffs-respondents was being hampered and in the aforesaid backdrop, a relief for permanent injunction was sought. The defendants-appellants had raised their defence claiming that the disputed land was part of their sehan and it was in their use and occupation and it was incorrectly alleged by the plaintiffs that the said land was the public way. In view of the aforesaid, it was pleaded that the suit of the plaintiffs deserves to be dismissed.
9. Upon exchange of the pleadings, the trial Court framed three issues. However, only relevant issue upon which the entire trial was contested was 'whether the plaintiffs had acquired any use of easementary right over the way as indicated in the site plan annexed and forming part of the plaint in suit'.
10. It is in the aforesaid backdrop that the parties led their evidence and after noticing the oral evidence led by the plaintiffs and their witnesses also the evidence led by the defendants, the trial Court recorded a finding that the disputed land was a public way and it was not the sehan of the defendants.
11. Noticing the aforesaid, the suit of the plaintiffs-respondents came to be decreed by means of the judgment and decree dated 30.08.1996. The defendants thereafter preferred a regular civil appeal under Section 96 CPC which came to be registered as Regular Civil Appeal No.158/1996. The appellate Court too after hearing the parties and considering the evidence on record affirmed the findings recorded by the trial Court and dismissed the appeal.
12. It is being aggrieved against the aforesaid concurrent judgments that the aforesaid second appeal has been preferred.
13. Insofar as the first submission of the learned counsel for the appellants is concerned, this Court finds that both the trial Court as well as the Lower Appellate Court has meticulously considered the evidence led by the respective parties. The documentary evidence, which was led by the plaintiffs was not material to the issue, however, the plaintiffs and their witnesses did clearly indicate that the land in question was a 'gully' which was used by the plaintiffs and even other persons of the village. The evidence also indicated a fact that it was not disputed by the defendants inasmuch as in Paragraph-11 of their written statement, they had admitted that there was a way and it was used by the villagers for their egress and ingress. The defendants had also filed a certified copy of the proceedings initiated against them under Section 133 Cr.P.C., though till the time, the matter was under trial, the defendants had lost the said case against which they preferred a revision before the Sessions Court which also came to be dismissed whereafter they had preferred a writ petition before this Court, however, the fact remains that while the matter was before the lower Appellate Court, the proceedings came to an end in the matter which had initiated under Section 133 Cr.P.C.
14. Significantly, the proceedings which were initiated under Section 133 Cr.P.C., clearly indicated that the defendants were creating a nuisance by keeping a 'chappar' over the said land. The very fact that the proceedings under Section 133 Cr.P.C., were filed wherein the case of the appellants did not find favour with the authorities is indicative of the fact that the land in question was a public utility land and not the sehan of the defendants as claimed.
15. It is in the aforesaid backdrop that on appreciating the evidence, the trial Court has recorded a finding of fact which has been affirmed by the lower Appellate Court and this Court finds that there is no error which has been committed in arriving at those findings.
16. Considering the other argument of the learned counsel for the appellants that an application for Commission was moved before the lower Appellate Court which was rejected also does not find favour for the reason that the plaintiffs had ample opportunity to get the Commission executed, however, even if the Commission would have been executed, it could not been indicate the possession of the parties. The Commission is only for a limited purpose of ascertaining the factual position whereas there was ample material available on record in light of the evidence led by both the parties including the admission as contained in Paragraph-11 of the written statement and as such there was no practical requirement to corroborate the facts from the Commission and as such the lower Appellate Court did not commit any error in rejecting the said application nor the learned counsel for the appellants could demonstrate how the appellants are prejudiced merely because the application for Commission was rejected despite full opportunity was availed by the defendants-appellants while leading evidence in trial.
17. Noticing the aforesaid, this Court is satisfied that the judgments and decree under challenge are based proper appreciation of evidence and no error can be pointed out nor any perversity could be demonstrated by the learned counsel for the appellants and no substantial question of law is involved.
18. In view of the aforesaid, since the appeal stands concluded by concurrent findings of fact, this Court is not inclined to interfere with the same, accordingly, the appeal being devoid of merits is dismissed at the admission stage itself. Interim order, if any, stands discharge. In the facts and circumstances, there shall be no order as to costs.
Order Date :- 10.04.2023
Rakesh/-
