Neeraj Patel vs Gangaram Patel
2024 Latest Caselaw 6674 MP

Madhya Pradesh High Court

Neeraj Patel vs Gangaram Patel on 5 March, 2024

                                                              1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                       BEFORE
                                        HON'BLE SHRI JUSTICE GAJENDRA SINGH
                                                 ON THE 5 th OF MARCH, 2024
                                               SECOND APPEAL No. 163 of 2022

                           BETWEEN:-
                           NEERAJ PATEL S/O BABULAL PATEL, AGED ABOUT 35
                           Y E A R S , OCCUPATION: AGRICULTURE   VILLAGE
                           BARKHERA CHAIN, TAH.HATA, DISTRICT DAMOH
                           (MADHYA PRADESH)

                                                                                            .....APPELLANT
                           (BY SHRI PRIYANK CHOUBEY - ADVOCATE FOR APPELLANT)

                           AND
                           1.    GANGARAM PATEL S/O RAMVISHAL PATEL,
                                 AGED    ABOUT    60 YEARS, OCCUPATION:
                                 AGRICULTURE VILLAGE BARKHERA CHIAN,
                                 TAH.HATA,  DISTRICT DAMOH     (MADHYA
                                 PRADESH)

                           2.    STATE OF MP THROUGH COLLETOR, DAMOH
                                 DAMOH (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                           (BY SHRI RAMANUJ CHOUBEY - ADVOCATE FOR RESPONDENTS)

                                 This appeal coming on for admission this day, th e court passed the
                           following:
                                                               ORDER

This Second Appeal under Section 100 of the CPC is preferred feeling aggrieved by the judgment and decree dated 20.10.2021 in RCA No.04/2021 by IInd Additional District Judge, Hata, District Damoh arising out of judgment and decree dated 20.01.2021 in Regular Civil Suit A No.28/2018 by Second Civil Judge Class-I, Hata, District Damoh.

2. Facts in brief are that plaintiff/appellant purchased the land situated at

Village Barkhera Chain, Patwari Circle No.63 Tahsil, Hata, District Damoh by a sale deed of the year 1972 and 1981. The land purchased by plaintiff/appellant is marked in plaint map. Defendant also purchased the land in the year 1992 from the same person i.e. Shyamlal. Plaintiff used the portion depicted in plaint map vide letter A, B, C and D to approach the CC Road. The total area of that part is 5 ft. width in North South and 20 ft. in East West direction. The right of passage was pleaded as prescriptive easement but defendant erected a wall and closed the passage of plaintiff, hence, the suit for declaration, mandatory injunction and permanent injunction was filed.

3. Defendant contested the suit and contended that no such easementary

right was mentioned in sale deed executed in favour of plaintiff and no prescriptive of easementary right is ripened in favour of plaintiff. Plaintiff has alternate passage, hence, the suit be dismissed.

4. On the pleadings, five issues were framed and trial Court recorded the evidence of Neeraj as PW-1, Sukhlal as PW-2, Sukhnandan as PW-3, Mahesh as PW-4 and admitted the documents Ex.P1 to P6. Defendant examined himself as DW-1, Shobharam as DW-2 and Saligram as DW-3 and adduced the Ex.D-1 to D5. Appreciating the evidence trial Court decreed in favour of plaintiff but First Appellant Court reversed the findings of trial Court and dismissed the suit.

5. Feeling aggrieved by the findings of First Appellate Court in reversing the findings of trial Court, this appeal has been preferred proposing the following substantial questions of law :-

"1. Whether, the first Appellate Court erred in dismissing the suit of the plaintiff ?

2. Whether, the judgment and decree passed by the

Appellate Court reversing the well reasoned finding of the Trial Court is perverse ?

3. Whether, the First Appellate Court is justified in giving a finding regarding extinguishment of easementary right without any pleading and evidence ?

4. Whether, the findings recorded by the First Appellate Court below are perverse ?"

6. Heard.

7. Perused the records.

8. First Appellate Court has recorded the findings that plaintiffs has alternate passage in East and North side of his house. It is also recorded that plaintiff has closed his passage of East side and claiming a right of way through the land of defendants on the basis of easement by prescription. Map filed with the plaint also mentions that there is availability of passage in the East side of plaintiff's resident.

9. Plaintiffs have filed only sale deed dated 09.10.1981 executed by Shyamlal in his favour as Ex.P-1. The findings of availability of alternate passage to plaintiff does not entitle the plaintiff's for right to passage from the defendant land. Findings of trial Court does not show that there is ground to be interfered, no substantial question of law arises in this appeal. Accordingly, the

appeal has no substance, hence, it is dismissed at the admission stage.

(GAJENDRA SINGH) JUDGE DPS