Kamla Kant Soni vs Prabash Chand Dwivedi
2023 Latest Caselaw 4317 MP

                             1                 S.A. No.546/2008


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 20th OF MARCH, 2023
              SECOND APPEAL No. 546 of 2008
BETWEEN:-

1.   KAMLA KANT SONI S/O LATE NANDLAL
     SONI, AGED ABOUT 30 YEARS, R/O
     BICHHIYA     MOHALLA,   H.NO.42/252,
     MAHRAN MANDIR ROAD, THE. HUZUR,
     DIST. REWA (MADHYA PRADESH)



2.   UMAKANT SONI S/O LATE SHIR NAND
     LAL SONI, AGED ABOUT 27 YEARS, R/O
     BICHHIYA     MOHALLA,   H.NO.42/252,
     MAHRAN MANDIR ROAD, THE. HUZUR,
     DIST. REWA (MADHYA PRADESH)


                                               .....APPELLANTS
(BY SHRI G.S. BAGHEL- ADVOCATE WITH MS. POOJA GUPTA- ADVOCATE
FOR THE APPELLANTS)

AND

1.   PRABHAS CHAND DWIVEDI S/O LATE
     SHRI SHIV PD. DWIVEDI, AGED ABOUT 42
     YEARS,   R/O   H.NO.41/251, MAHRAN,
     MANDIR ROAD, THE. HUZUR, DIST. REWA
     (MADHYA PRADESH)



2.   THE   STATE  OF     M.P. THROUGH
     COLLECTOR, DIST.    REWA (MADHYA
     PRADESH)


                                             .....RESPONDENTS
(NONE)
                                    2                    S.A. No.546/2008


      This appeal coming on for admission this day, the court passed the

following:

                                 JUDGMENT

This Second Appeal under Section 100 of C.P.C. has been filed against the judgment and decree dated 17.01.2008 passed by the 5th Additional District Judge (Fast Track Court), Rewa in Civil Appeal No. 53-A/2006 arising out of the judgment and decree dated 24.07.2006 passed by Civil Judge Class-II, Rewa in Civil Suit No.434-A/2004.

2. The appellants are the defendants who lost their case from both the Courts below.

3. The facts necessary for disposal of the present appeal, in short, are that according to the plaintiff there is a 6 ft. wide passage between the house of the plaintiff and defendants which is being used by the plaintiff from the lifetime of his predecessors for nistar purposes as well as for cleaning and maintaining western outer wall of the house of the plaintiff. The passage in question was marked in red colour in the map attached to the plaint. It was further pleaded that there is a Government land on the northern side of the house of the defendants and there is a public way on the northern side of the said Government land which goes to the Maharan Temple. In the month of February 2001, the defendant No. 1 with an intention to grab the Government land has constructed a wall from "Ka" to "Sa" as shown in the plaint map. Accordingly, the plaintiff requested the defendant No. 1 that by construction of the said wall his approach to the passage in dispute would be obstructed. However, the defendant No. 1 assured that the passage marked as "Ka"

and "Kha" shall remain open so that the plaintiff can approach the passage and accordingly, the plaintiff was using the space "Ka-Kha" for approaching the passage in question. However, the defendant No. 1 without seeking any permission from the plaintiff has installed an iron gate in the month of August 2001 as a result, the approach of the plaintiff to the 6 feet wide passage has been obstructed. When the plaintiff talked to the defendant No. 1 with regard to installation of the gate, then it was assured by the defendant No. 1 that the said gate would always remain open for the plaintiff to use the passage. It was further pleaded that on 30.08.2001, the defendant No. 1 has partially blocked the area by dumping the building material on the place shown as "Ka" to "Da" in the spot map and thus, now the plaintiff is of the view that the defendant No. 1 is trying to dispossess the plaintiff from the passage in question. Accordingly a meeting was convened of the respective members of the society before whom the defendant No. 1 assured that he would removed his building material, however, that promise was not fulfilled. Accordingly, the plaintiff sent a notice on 25.09.2001. Therefore, it was claimed that the defendant No. 1 is trying to dispossess the plaintiff from 6 feet wide passage. Accordingly the suit was filed seeking permanent injunction for restraining the defendant No. 1 from interfering with nistar use of 6 feet wide passage either by themselves or through their agents, servants etc. An order be also issued to the defendant No. 1 to remove his obstruction raised at "Ka", "Kha" and "Da" shown in the spot map or it was also claimed that in case, if it is found that the defendant No. 1 has illegally dispossessed the plaintiff, then the possession of the 6 feet wide passage be delivered to the plaintiff.

4. The defendant No. 1 filed his written statement and denied the plaint map. It was pleaded that not a single inch of land belonging to the plaintiff is remaining on the left side of his house. The defendant No. 1 by registered sale deed dated 24.11.1992 had purchased 1305 sq. ft. of land on which 400 sq.ft. of kacha house was standing. The plaintiff is claiming that the land belonging to the defendant No. 1 is the 6 feet wide passage which is incorrect. It was denied that the plaintiff was using the 6 feet wide passage for maintenance of the wall of western side of his house. In fact it was claimed that the property shown in red colour belongs to the defendant No. 1. It was never the intention of the defendant No. 1 to grab any Government land. It was also denied that the plaintiff has dumped any building material or had assured the respective members of the society to remove the building material. In fact the plaintiff has no right or title in the land in dispute. In additional pleadings, it was pleaded that a partition had taken place between the plaintiff and his predecessors and the father of the plaintiff had got the land on which the house of the plaintiff is constructed. The house was constructed on the entire land. The passage in dispute had fallen to the share of Dr.Gomti Prasad Tiwari and in respect of the same, several cases were instituted and ultimately Dr. Gomti Prasad Tiwari by registered sale deed dated 24.01.1992 alienated the same to the defendant No. 1. The plaintiff has not filed any document of his title and has also not filed any document pertaining to his house and has also not clarified that how he has got the land in dispute which clearly shows that the plaintiff has not approached the Court with clean hands.

5. The trial Court after framing issues and recording evidence, partially decreed the suit. It was held that the defendant No. 1 shall

immediately remove the gate installed by him at "ka to kha" shown in spot map and the defendant No. 1 shall not create any obstruction in the use of the Government land which is situated on the western side of the plot of plaintiff. Accordingly the aforesaid decree was passed.

6. Being aggrieved by the judgment and decree passed by the trial Court the appellants preferred an appeal which too has been dismissed by the First Appellate Court.

7. Challenging the judgment and decree passed by the Courts below, it is submitted by the counsel for the appellants that since the suit was not filed for easmentary right, therefore, the suit was not maintainable and the trial Court had found that there was no 6 feet wide passage between the house of the plaintiff and the defendants and proposed the following substantial questions of law:-

"(a) Whether the plaintiff without proving his contention in the plaint was entitled for the relief not prayed for?

(b) Whether the Courts below were justified in believing the Municipal records for title deeds?

(c) Whether the findings of the courts below were perverse on the basis of evidence contrary to the pleadings?"

8. Heard the learned counsel for the appellants.

9. Both the Courts below have come to a conclusion that there is no passage between the house of the plaintiff and the defendants but both the Courts below have given a finding that there is a 3 feet wide Government land in the northern-western side of the house of the

plaintiff. The trial Court has come to a conclusion that there was a passage of 3 feet which is a Government land and the passage shown in Ex.-P/1 was being used for nistar purposes. Accordingly, 3 feet passage shown in Ex.-P/1 was held to be a Government passage. The trial Court has also held that the defendant No. 1 has illegally installed a gate at ka to kha shown in the spot map. The counsel for the appellants could not point out any perversity in the findings given by the Courts below. It is well established principle of law that this Court in exercise of power under Section 100 of C.P.C. cannot interfere with the findings of fact unless and until they are found to be perverse or contrary to record. Accordingly, it is held that no substantial question of law arises in the present appeal.

10. Ex-consequenti, the judgment and decree dated 17.01.2008 passed by the 5th Additional District Judge (Fast Track Court), Rewa in Civil Appeal No. 53-A/2006 and the judgment and decree dated 24.07.2006 passed by Civil Judge Class-II, Rewa in Civil Suit No.434-A/2004 are hereby affirmed.

11. Accordingly, the appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.03.23 15:15:45 +05'30'