Mahendra Singh vs Devendra Singh And 4 Others
2025 Latest Caselaw 920 ALL

Allahabad High Court

Mahendra Singh vs Devendra Singh And 4 Others on 13 May, 2025

Author: Dinesh Pathak

Bench: Dinesh Pathak

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:82654
 
Court No. - 37
 
Case :- SECOND APPEAL No. - 363 of 2025
 
Appellant :- Mahendra Singh
 
Respondent :- Devendra Singh And 4 Others
 
Counsel for Appellant :- Ajaj Ahmad,Amrendra Pratap Singh,Diwakar Tiwari,Peeyush Kumar Pathak,Prateeyush Kumar Pathak,Ram Prakash Sharma,Utsav Singh
 
Counsel for Respondent :- Akanksha Gaur,Ramendra Asthana
 

 
Hon'ble Dinesh Pathak,J.
 

1. Heard Sri Tiwari Abhishek Rajesh, learned counsel for the appellant and Ms. Akanksha Gaur, learned counsel for the plaintiff-respondent No. 1.

2. Instant second appeal is listed for admission.

3. Defendant-appellant has filed instant second appeal assailing the judgment dated 21.11.2008 passed by Civil Judge, Junior Division, Hawali, Aligarh in OS No. 102 of 2006, which has been affirmed by the first appellate court viz. Additional District Judge, Court No. 5, Aligarh, vide order dated 25.2.2020, passed in Civil Appeal No. 103 of 2008.

4. Plaintiffs have filed suit for permanent prohibitory injunction restraining the defendants not to encroach upon the pathway having width of 6 feet shown by red ink at the foot of the plaint and not to make any construction over there and not to make any hindrance in the ingress or egress of the plaintiffs through the pathway. During pendency of the suit, the defendant has raised construction over the partial area of the pathway shown by letters Ba, Sa, Ya, Ra at the foot of the plaint, therefore, second relief has been sought for the mandatory injunction for removal of the construction made by the defendant shown by letters Ba, Sa, Ya, Ra over the pathway having width of 6 feet shown by red ink. Learned trial court has decreed the suit and same has been affirmed by the first appellate court, the appeal having been filed on behalf of the defendant.

5. Perusal of record on board evinces that there is a dispute with regard to the pathway having width of 6 feet situated in the mid of the abadi which is access road for villagers, particularly, plaintiffs to approach the main road having width of 15 feet. It is the case of the plaintiffs that said pathway is existing since inception inasmuch as abadi is existing for more than 50 years. At no point of time, anyone has made any obstruction in the use of the pathway, therefore, claim of the plaintiffs over the pathway on the basis of the easementary right is affirmed by both the courts below. Defendant/appellant has vehemently denied the pleading of the plaint and came with the case that, in fact, there is no existence of pathway as pleaded by plaintiffs in the plaint.

6. Learned counsel for the defendant-appellant, while assailing the judgment and decree passed by the court below, has submitted that the judgment dated 21.11.2008 and 25.2.2020 passed by both the courts below, respectively, are against the weight of evidence. The courts below have erred in law in not considering the fact that suit was barred by mis-joinder and non-joinder of the parties. The courts below have passed the judgment dated 21.11.2008 and 25.2.2020 respectively on the basis of oral evidence. The plaintiffs have not filed any documentary evidence regarding the nature of the land in dispute. Though the appellant/defendant has filed objection that the land in dispute is not a pathway, same has not been considered and suit was decreed and appeal was dismissed. It is next submitted that learned courts below have erred in law by passing the judgment and decree, allowing the suit and dismissing the appeal of the appellant on the ground of easementary rights claimed by plaintiffs over the pathway. The plaintiffs have failed to prove their case and learned courts below have erroneously decreed the suit and also dismissed the appeal of the appellant only on the basis of the oral evidence adduced by plaintiffs. The judgment dated 21.5.2008 and 25.2.2020 are passed on basis of surmises and conjectures. The suit itself was barred under Sections 34, 38 and 41 of the Specific Relief Act as well as Section 331 of UPZA and LR Act.

7. At the bottom of the appeal, learned counsel for the appellant has formulated following substantial questions of law:-

(i). Whether, the suit was barred by Section 34, 38 and 41 of the Specific Relief Act and as well as Section 33 and 331 of UPZA and LR Act?

(ii). Whether, suit suffers with non-joinder of parties?

(iii). Whether, judgment and decree dated 21.5.2008 and 25.2.2020 is against the weight of evidence?

(iv) Whether, both the court has erroneously held that the plaintiffs has easementary rights over the land in dispute??

8. Learned counsel for the plaintiff-respondent No. 1 has vehemently opposed the submissions advanced by the learned counsel for the appellant and contended that the existence of Rastha on the spot is concluded by concurrent finding of fact and no substantial question of law is made out to entertain the instant second appeal, therefore, same may be dismissed summarily at admission stage itself.

9. Having considered the rival submissions advanced by learned counsel for the parties and upon perusal of record, it is manifested that the property in dispute is a pathway having width of 6 feet, which is being used for ingress and egress by the surrounding dwellers to access the main road. Ownership of the defendant over the pathway has been negated by concurrent finding of fact returned by the courts below and easementary right of the plaintiff and other surrounding dwellers has been acknowledged, while deciding the suit. Learned trial court has formulated as many as 10 issues. Issue No. 3 has been formulated with respect to the existence of the Rasta (pathway). Having considered the testimony of the witnesses of plaintiffs and defendant, and the report submitted by Amin (paper No. 11-C1 and 11-C2), learned trial court has returned the finding of fact that Rasta exists on the spot which has been shown in the plaint. Learned trial court has observed that Amin report (paper No. 11-C1 and 11-C2) has been proved by the Amin (PW-4), who has been cross-examined by the defendant, however, nothing has been found adverse in the report submitted by Amin and in his testimony. Learned trial court, while deciding the issue No. 1 qua entitlement of the plaintiffs to use the pathway, as mentioned in the plaint, has categorically stated that the pathway was throughout being used since long by the villagers. He has also cited the statement of DW-2, Shakuntala Devi, who has admitted that pathway exists over there and is being used by the villagers. PW-2, Sher Khan (vendor of defendant) has admitted the existence of pathway in question as well. Issue No. 2 has been framed with regard to the illegal construction made by the defendant during the pendency of suit shown by letters Ba, Sa, Ya, Ra over the pathway in question. Learned trial court, while deciding the issue No. 2, has given categorical finding that defendant has illegally raised constructed shown at letters Ba, Sa, Ya, Ra over the pathway. Issue No. 6 with regard to non-joinder of the parties, which has been formulated on the pleading of the defendant, has been decided in favour of the plaintiffs as well on the ground that other villagers who are using the pathway are not necessary party in the suit. Issue No. 7 is formulated as to whether suit is barred under Section 331 of UPZA & LR Act, however, same has not been pressed by the defendant. Issue No. 8 qua bar of suit under Sections 34, 38 and 41 of the Specific Relief Act has been decided in negative against the defendant. Issue No. 9 has been formulated with regard to the identity of the plot in question. Learned trial court has returned categorical finding that the map appended to the plaint for the suit property is identifiable on the spot and the same is authenticated in the Amin report (paper No. 11-C1 and 11-C2). Issue No. 10 with regard to entitlement of the plaintiffs for the relief claimed has been decided in his favour as well. The appeal having been filed on behalf of the defendant, first appellate court has affirmed the judgment and decree passed by the trial court. Learned appellate court has formulated two points for determination; first whether the plaintiffs has right of easement to use the disputed passage and second, entitlement of the plaintiffs for any relief. Both the aforesaid point for determination have been decided in positive in favour of the plaintiffs with the categorical finding that plaintiffs have a right of easement to use the pathway in question and are entitled for relief of permanent prohibitory injunction and mandatory injunction, as prayed for.

10. Substantial questions as formulated by the appellant at the bottom of the appeal are not emerged from concurrent findings of facts returned by both the courts below. Easementary right of the plaintiff over the pathway in question has concurrently been upheld in his favour, however, no perversity or ambiguity has been pointed out by the learned counsel for the appellant in this respect. There is nothing on record to demonstrate that statement of witnesses or the documents on record have been misread and misinterpreted by the courts below.

11. In this conspectus, as above, no substantial questions of law is made out in the instant second appeal to exercise the jurisdiction under Section 100 CPC. Easementary right of the plaintiff over the pathway in question having width of 6 feet has been culminated by the concurrent findings of fact. Learned trial court being a court of fact and learned first appellate court being a court of fact and law have decided the matter in favour of the plaintiff-respondent and this Court in exercise of second appellate jurisdiction cannot entertain the instant second appeal without substantial questions of law as required under Section 100 CPC.

12. Resultantly, instant second appeal, being devoid of merits and misconceived, is dismissed summarily at admission stage itself, with no order as to the costs.

Order Date :- 13.5.2025

vinay