Rajasthan High Court
Chhiddi vs Rajendra And Anr on 31 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 343/2017
Chhiddi S/o Shri Nihal Singh, Village Ramnagar, Tehsil And Distt.
Bharatpur
----Plaintiff-Appellant
Versus
1. Rajendra S/o Shri Chet Ram, Village Ram Nagar, Tehsil
And Distt. Bharatpur
2. Chhidda S/o Hari Singh, Village Ram Nagar, Tehsil And
Distt. Bharatpur
----
Defendant-Respondents
For Appellant(s) : Mr. J P Goyal, Sr. Advocate with
Mr. Abhi Goyal
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
31/03/2022
1. Appellant-plaintiff has filed this second appeal feeling
aggrieved of declining relief of mandatory injunction. Although his
suit for permanent injunction has been decreed by the trial court
vide judgment dated 12.02.2014 passed by Additional Civil Judge
(Jr. Division) No.1, Bharatpur in Civil Suit No.92/2012 which has
been affirmed by Additional District Judge No.4 in Civil Appeal
No.44/2016 vide judgment dated 08.03.2017.
2. Appellant-plaintiff filed a civil suit for declaration of
permanent and mandatory injunction alleging inter alia that
towards the western side of his house, the house of defendants is
situated and then after his house in the southern side there is a
common gali. It was alleged that the rainy water of plaintiff's roof
(2 of 4) [CSA-343/2017]
flows through the roof of defendants' house and spouts (nala)
falls in the common gali. It was alleged that since defendants have
raised the height of their roof than plaintiff's roof, therefore, the
flow of rainy water through spouts from the roof of defendants
have been stopped and therefore, plaintiff filed present civil suit
seeking declaration of an easementory right to have a flow of
rainy water through the roof of defendants' house and for
declaration/permanent injunction in relation to the common gali.
3. The trial court has decreed the plaintiff's suit on findings
that the common gali situated towards the southern side of the
defendants' house and defendants were directed to remove any
obstruction/hindrance over the common gali. The decree passed
by the trial court reads as under:-
"फलतः दावा वादी ववरुद्ध प्रवतवादीगण गण आीगण आंवण आंशिक रूप स से सवीकार वकार किया
जााकर नक्ण आंशिा प्रदण आंशिद-1 मम बी.सी.ई.एफ. से सथान ण आंशिामलाती गली होन की
घोषणा की जााकर प्रवतवादीगण को गण आदवण आंशित वकार किया जााता ह वक उक
गली वाल से सथान पर वकार किय गार किय अवरोध को हहटा ल तथा वनषधााजा स से भी
पाबीगण आंद वकार किया जााता ह वक उक गली पर कबजाा नहनहीं करम । ण आंशिष प्राथद ना
अ से सवीकार की जााती ह। खराद पक्षकारान अपना-अपना वहन करम ग।
उक अनसार वर डिक्की पराद बनाार किया जााार किय ।"
4. Since the trial court declined the relief in relation to seeking
right to have flow of rainy water through the defendants' roof, the
appellant-plaintiff assailed the judgment and decree dated
12.02.2014 by way of filing the first appeal. The first appellate
court dismissed the first appeal on merits vide judgment dated
08.03.2017.
5. Both courts below on appreciation of site map and according
to the position at site, has found that a common gali is situated
which can be used by plaintiff and defendants. Accordingly, the
(3 of 4) [CSA-343/2017]
courts below have decreed the plaintiff's suit partially in relation to
making a declaration of gali as common and to keep it intact
common unobstructed and without any hindrance. As far as the
easementory right to have a flow of rainy water through
defendants' roof was not found to be proved in absence of any
substantive evidence, both courts have recorded findings of fact
that there is neither any oral nor documentary evidence available
on record to confer easementory right in favour of plaintiff. The
plaintiff himself admits in the plaint that defendants have
reconstructed their house and has raised level of their roof, in that
factual matrix, plaintiff does not have any right to claim
mandatory injunction for demolition of defendants' house to
maintain the level of his roof in parallel to the roof of plaintiff's
house. Thus, due to lack of evidence, plaintiff's prayer for having
right to flow of rainy water through defendants' roof was declined
and prayer for mandatory injunction in that context was not
allowed.
6. This Court finds that declining of relief to plaintiff in relation
to the easementory right to have a flow of rainy water through
defendants' roof and asking for a mandatory injunction for
demolition of defendants' construction do not call for any
interference as there is no cogent and convincing evidence to
confer such right. In absence of evidence, both courts below are
well within their jurisdiction to dismiss the plaintiff's suit partially
and to decline such prayer and only decreeing the plaintiff's suit
partially in relation to the use of common gali. Otherwise also,
once the plaintiff has a right to use of common gali, it is always
open to him to look out any alternative arrangement to have flow
of rainy water to that common gali, if it has already not been
(4 of 4) [CSA-343/2017]
made. In making such alternative arrangement, defendants' house
and their construction need not be disturbed. In such factual
matrix and evidence, there is no substantial question of law
involved in the present second appeal, the findings of fact are duly
based on appreciation of evidence. Re-appreciation of evidence
and drawing a different conclusion than made by two courts
below, is not permissible within the scope of Section 100 CPC
unless and until findings are perverse. Since, without substantial
question of law, second appeal cannot be entertained and the
same is dismissed. No order as to costs.
7. All pending application(s), if any, stand(s) disposed of.
8. Record of the courts below be returned.
(SUDESH BANSAL),J
SAURABH/4
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