Murlidhar vs Prakash Chandra Kasliwal (Died)
2022 Latest Caselaw 6356 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

            S.B. Civil Second Appeal No.27/1987
1. Murlidhar (since deceased)
1/1. Rameshwar Prasad Sharma S/o Late Shri Murlidhar, aged
about 65 years, R/o Thakurji Raghunathji, Purohitji ka Katla,
Jaipur (Rajashtan), (died on 16.09.2015)
1/1/1. Mahesh Kumar Sharma S/o Late Shri Rameshwar Prasad
Sharma, aged 47 years, R/o Thakurji Raghunathji, Purohitji ka
Katla, Jaipur (Rajashtan), presently residing at A-35, Khadi
Colony, Rankdi, Hatwara Raod, Sodala, Jaipur (Rajasthan)
                                                    ----Defendant-Appellant
                                  Versus
1. Prakash Chandra Kasliwal (died) through his legal
representatives.
1/1. Raj Kumar Sethi S/o Shri Mahendra Kumar Sethi, R/o
Rajhans Hospital Road, C-Scheme, Jaipur (Rajasthan) (dead)
1/1/1. Smt. Laxmi Devi, wife of Late Shri Raj Kumar Sethi.
1/1/2. Shri Anand Sethi S/o Late Shri Raj Kumar Sethi.
Both resident of Rajhans Hospital Raod, C-Scheme, Jaipur
(Rajasthan).
                                          ...Plaintiff-Respondents

2. Purohit Swaroop Narain S/o Shri Ram Prasad (since deceased) to be represented through:

2/1. Smt. Mukand Kanwar widow of Purohit Swaroop Narain Ji, Near Purohit Gopinath Ji ka Bagh, Mirza Ismail Road, Jaipur (Rajasthan).

2/2. Purohit Har Narainji S/o Purohit Swaroop Narain Ji, Near Purohit Gopinath Ji Ka Bagh, Mirza Ismail Road, Jaipur (Rajasthan).

2/3. Purohit Dharuv Narainji S/o Purohit Swaroop Narain Ji, Near Purohit Gopinath Ji Ka Bagh, Mirza Ismail Road, Jaipur (Rajasthan).

2/4. Smt. Amrit Kanwar daughter of Purohit Swaroop Narain Ji, Near Purohit Gopinath Ji ka Bagh, Mirza Ismail Road, Jaipur (Rajasthan).

2/5. Pushp Kanwar daughter of Purohit Swaroop Narain Ji, Tiwariji Ki Dharamshala, Station Road, Jaipur, Rajasthan (deceased) through legal representatives:

2/5/1. Rahul Tiwari son of Late Shri Krishan Mohan Tiwari, Resident of Tiwari Ji Ki Dharamshala, Railway Station Ke Pass, jaipur at present Luv-kush Appartment, Hanuman Marg, Shyam Nagar, Jaipur.

2/6. Sushila Kumari daughter of Purohit Swaroop Narain Ji, Near Purohit Gopinath Ji Ka Bagh, Mirza Ismail Road, Jaipur (Rajasthan).

2/7. Kumari Bimla daughter of Purohit Swaroop Narain Ji, Near Purohit Gopinath Ji Ka Bagh, Mirza Ismail Road, Jaipur (Rajasthan). 2/8. Kumari Uma daughter of Purohit Swaroop Narain Ji, near Purohit Gopinath ji ka Bagh, Mirza Ismail Road, Jaipur (Raj.)

----Defendants/Respondent

(2 of 34) [CSA-27/1987]

For Appellant(s) : Mr. G.S. Bapna, Sr. Advocate assisted by Mr. Siddharth Bapna & Mr. Banwari Singh For Respondent(s) : Mr. Rajendra Prasad Agarwal

HON'BLE MR. JUSTICE SUDESH BANSAL JUDGMENT

RESERVED ON: 8th September, 2022 PRONOUNCED ON: 27th September,2022

1. Instant second appeal under Section 100 CPC arises out of a

civil suit filed for seeking prohibitory and mandatory injunction,

way back on 09.10.1963, in relation to a portion of roof, situated

in the property, commonly known as "Purohit Ji Ka Katla", Chowkri

Vishveshwar Ji, Johri Bazar, Jaipur. The suit was instituted by

plaintiff-Prakash Chandra Kasliwal, against two persons namely

Purohit Swaroop Narain and Murlidhar who were made parties as

defendant Nos.1 and 2. Plaintiff claimed that on the portion of

roof, purchased by him, defendant No.2 has constructed a wall of

37 ft. long from north to south and up to 7 ft. height thereby has

pressed an area of his roof, towards northern side of wall, mark

'A', 1.5 ft. and towards southern side of wall mark 'B' 8 inch. The

plaintiff prayed for, to obtain possession of such area of his roof,

which has been encroached upon by defendant No.2, while raising

construction of wall in question and thus, a decree for prohibitory

injunction not to raise any construction on his roof and for

mandatory injunction seeking demolition of wall in question has

prayed for. Defendant No.1 supported the plaintiff's suit and

defendant No.2 contested the same. The suit bearing

No.16/77(501/1963) was partially decreed vide judgment dated

30.09.1983 by the Court of Additional Civil Judge No.2 Jaipur City,

Jaipur and thereby defendants were restrained by prohibitory

(3 of 34) [CSA-27/1987]

injunction not to raise any construction over the roof of plaintiff

and not to obstruct the plaintiff from use and occupation of the

roof in question but the suit for seeking mandatory injunction, to

demolish the wall in question was dismissed being barred by

limitation as well as the area of roof come under the wall is very

small and negligible. The trial court also observed in the operative

portion of judgment that right of defendant No.2 for coming and

going to temple through staircase and roof in question will remain

intact.

2. During trial of suit, plaintiff-Prakash Chand Kasliwal sold the

roof in question to one Raj Kumar Sethi through sale deed dated

13.02.1968, therefore, purchaser-Raj Kumar Sethi was also

allowed to be impleaded as plaintiff No.1/1 with plaintiff No.1-

Prakash Chandra Kasliwal.

3. Plaintiff No.1/1-Raj Kumar Sethi, the subsequent purchaser,

who was added as party, alone preferred first appeal No.1/1984,

challenging the judgment dated 30.09.1983 to the extent of

dismissing the suit for mandatory injunction and to the extent of

the order passed by trial court to keep intact, the right of way of

defendant No.2, for coming and going to the temple premises

through the roof in question. The defendant No.1, was not

aggrieved by the judgment and decree of trial court dated

30.09.1983, he did not preferred any appeal thereagainst.

Defendant No.2-Murlidhar preferred his separate first appeal

No.2/1984 challenging the judgment and decree dated

30.09.1983, to the extent of passing a decree for prohibitory

injunction in respect of the roof in question in favour of plaintiff.

4. Both the first appeals No.1/1984, preferred by subsequent

purchaser and plaintiff No.1/1 and first appeal No.2/1984,

(4 of 34) [CSA-27/1987]

preferred by defendant No.2 were heard together and decided

vide common judgment dated 28.02.1987 by the Court of

Additional District Judge No.2, Jaipur City, Jaipur and thereby

appeal No.2/1984 of defendant No.2 was dismissed affirming the

decree of prohibitory injunction passed in favour of plaintiff but

the appeal No.1/1984 preferred by plaintiff was allowed and the

suit for mandatory injunction was also decreed by issuing a

direction against defendant No.2 to demolish the wall in question

just for the purpose of obtaining the possession of roof area 1.5 ft.

towards northern side and 8 inch. towards southern side, which

has come beneath the wall in question and simultaneously the

observation in the judgment dated 30.09.1983, keeping the right

of way of defendant No.2 intact, through roof in question, was also

deleted. Thus, defendant No.2-Murlidhar has challenged the

judgment and decree dated 28.02.1987 by way of filing the

present second appeal, in respect of three grievances (i) decree of

prohibitory injunction concurrently passed by both courts in favour

of plaintiff is not sustainable; (ii) first appellate court committed

illegality and perversity in decreeing the suit for mandatory

injunction after upsetting findings of the trial court and direction

for demolition of wall of defendant No.2 is not sustaniable and be

quashed and lastly; (iii) when right of way of defendant No.2, for

coming and going to his gaddi and temple premises through roof

in question of plaintiff is an admitted and undisputed right, the

same has unwarrantly been ordered to be deleted by the first

appellate court.

5. The relevant facts of the case, in nutshell, may be

recapitulated that plaintiff claimed to purchase the roof in question

of the building known as Katla Purohit Ji through registered sale

(5 of 34) [CSA-27/1987]

deed dated 26.12.1957 from one Badhi Chand Ji Gangwaat who

had purchased the property from defendant No.1-Purohit Swaroop

Narain. It was specifically averred in para No.2 of plaint that

plaintiff has purchased the roof under sale deed dated

26.12.1957, after leaving an area of 21 ft. 3 inch (east to west)

and 55ft. 3 inch (north to south) and it was also clarified by

plaintiff in para No.2 of plaint itself that defendant No.1 has a right

of way for coming and going to gaddi and temple premises

through the roof purchased by plaintiff and except this right of

way, he has no right to raise any construction on the roof of

plaintiff. Plaintiff pleaded that, in north-east corner of the roof one

gaddi is constructed and towards southern side of gaddi, one

kitchen, one temple and one room are also constructed. The

portion of roof, in front of said premises, covered by tin sheded

belongs to defendant No.1 and its measurement is 21ft. and 3

inch towards east to west and 25ft. and 3 inch. towards north

south, and defendant No.1 is the owner of gaddi and temple

premises who has appointed defendant No.2 for performing seva

puja in the temple. Thus, indeed defendant No.2 was admitted in

actual and physical possession of the temple premises and gaddi.

Plaintiff further pleaded that defendant No.2, on 26.09.1963

started to raise construction of wall, by putting two pillars and he

has erected a wall in the length of 37 ft. and in height of 7 ft. The

plaintiff pleaded that in raising construction of wall, the defendant

No.2 has protruded the wall, on the roof of plaintiff and under the

wall in question, 1.5 ft. area of his roof towards northern side of

wall and 8 inch area towards southern side of wall has been

pressed. This wall in question is marked "a" to "b" in the map,

appended with the plaint (Ex.2). Plaintiff alleged his absolute

(6 of 34) [CSA-27/1987]

ownership and possession over the roof in question and prayed for

prohibitory injunction against defendant Nos.1 and 2 for not

raising any construction on the roof purchased by him and further

has prayed for a decree of mandatory injunction, seeking

demolition of the wall in question, just to obtain the possession of

the area of his roof, which is towards northern side of wall is 1.5

ft. and towards southern side of wall is 8 inch only. According to

plaintiff this area of his roof has been encroached upon by the

defendant No.2 by erecting a slanting wall of 37 ft. long. Thus, it

may be pointed out here that as far as decree for mandatory

injunction and possession is concerned, the same is only in

respect of an area of 1.5 ft. towards northern side of wall and 8

inch towards southern side of wall, alleged to be come under the

wall in question, constructed by defendant No.2. The

measurement of such area has been given out in para No.5 of the

plaint.

6. In order to figure out the clinching point of dispute between

the parties, it is better to extract here para No.5 of the plaint:-

5. यह कि उक्त िककथित द दीवीवार ि की तीवाम दीर म प्रकतवीवाद दी दी ना० 2 दी ने उत्तर ि की और 1.5 फ कीट छत व दक्षिण ि की ओर 8 इाच छत दबीवाई है और इस दी प्रिीवार 37 फ कीट ि की द दीवीवार वगैर किस दी हि िे तीवाम दीर िरीवाई है इस द दीवीवार िो दी नक्शे म कतरछ दी लीवाल लीवाईदी नो से कदखीवायीवा गयीवा है। 5(ि)-यह कि वीवाद दी दी ना० 1 दी ने छत कदी नवई वीवाद दी दी नमबर 1/1 िो जरिरये बैदी नीवामीवा मय द दीगर जीवायदीवाद िे कददी नीवाि 13-2-1968 िो बै िरद दी है और अब चि ू े जीवायदीवाद कदी नजई िीवा मीवाकलि वीवाद दी दी न० 1/1 है इसकलए वीवाद दी दी नमबर 1/1 मकिदमे फर दीि बदी नीवा है ।"

7. Defendant No.1 submitted his written statement supporting

the case of plaintiff, admitting the ownership and possession of

plaintiff over the roof in question purchased by him through sale

(7 of 34) [CSA-27/1987]

deed dated 26.12.1957, after leaving 21 ft. 3 inch (east to west)

and 55 ft. 3 inch (north to south) of roof area. Defendant No.1

alleged that defendant No.2 is Pujari in the temple appointed by

him and defendant No.2 has constructed the wall in question and

it has been constructed slightly outer area of 21 ft. 3 inch X 55 ft.

3 inch and not within the limit of tin shed area of temple. Thus

defendant No.1 did not oppose the plaintiff's suit for relief prayed

for in the suit.

8. Defendant No.2 submitted his first written statement on

13.03.1964. In his first written statement, defendant No.2 while

replying para No.5 of the plaint, admitted to erect the wall in

question of 37 ft. long and 7 ft. height but submitted that wall has

been constructed within the limits of tin shed area and no portion

of plaintiff's roof i.e. towards northern side of wall 1.5 ft and

towards southern side of wall 8 inch has come under the wall.

Defendant No.2 also contended that pillars up to 2 ft. height were

constructed 20 years ago and wall in between the pillars up to

height of 7 ft. has been constructed four years back in the month

of January, 1959. Thus, defendant No.2 mainly contested the case

of plaintiff, in respect of the prayer for mandatory injunction

seeking demolition of the wall in question, but simultaneously

also denied the prayer for prohibitory injunction as well. In this

first written statement, the defendant No.2 also contended that he

is not appointed pujari by defendant No.1 but in fact has been

performing seva puja in the temple since generations and

contended that the defendant No.1 has no right to sell the roof of

Katla Purohit Ji. It may be noticed here that when plaintiff No.1/1-

Raj Kumar Sethi, was added as party and para 5 (ka) was added

in suit, the defendant No.2 on the basis of sale deed dated

(8 of 34) [CSA-27/1987]

13.02.1968, submitted amended written statement on 03.10.1977

and then on 13.04.1978, wherein while replying para No.5 (ka)

first time contended that the properties of gaddi (Dayal ki Gaddi),

kitchen, temple premises, room and tin shed portion in front

thereof are properties of Thakur Ji Shri Raghunath Ji which were

constructed by Sadhu Atma Ram Ji, who through a document

written on Baishakh Badi 5 Samvat 1946, gave these properties to

Sadhu Ram Ji Mishra who was Baba (elder brother of defendant

No.2's father) therefore, defendant No.2 is shebait (pujari) and

manager of the temple and the sale deeds in relation to properties

of temple are null and void qua his rights.

9. From perusal of the first written statement of defendant No.2

dated 13.03.1964 and the amended written statement of

defendant No.2 dated 03.10.1977 and 13.04.1978, it transpires

that in the first written statement although defendant No.2 denied

the claim of plaintiff over the roof in question but the thrust of

contest was that the wall in question is firstly not constructed

beyond the limits of tin shed area of temple premises and further

it has been constructed in January, 1959 and, therefore, the

plaintiff has no legal right to seek decree of mandatory injunction

to demolish the wall. In amended written statement, the

defendant No.2 claimed his own ownership over the temple

premises, giving reference of a document of Baishakh Badi 5

Samvat 1946, taking the stand that his predecessor Atma Ram Ji

constructed temple premises and gave this temple premises

through one document to the Baba of defendant No.2. Here, this

Court mainly concerned with the dispute of erection of wall in

question on the roof and the decree for mandatory injunction in

(9 of 34) [CSA-27/1987]

that respect, therefore, the reply of para No.5 of the plaint as

given by defendant No.2 is being extracted hereunder:-

"यह कि वीवाद पत्र िीवा मद दी ना० 5 असव दीिीवार है तकथिीवा फूठे वजहू ीवात िे सीवाकथि दज् कियीवा गयीवा है। प्रकतवीवाद दी दी ने िोई छत वीवाद दी ि की 1½ फ कीट उत्तर म और 8 इाच दक्षिण म वीवाद दी ि की छत दी नहहीं दबीवाई है और इस दी तरह प्रकतवीवाद दी दी ने जो द दीवीवार बदी नीवाई है वह अपदी ने हि ि की जम दीदी न तकथिीवा ट दीदी नशेड ति बदी नीवाई है। वीवाद दी दी ने दी नक्शीवा गलत पेश कियीवा है। जहीवाा ति द दीवीवार बदी नीवाई है वहीवा 2 फकट िे पीवाये 20 वर् पकहले बदी ने हह र कथिे तकथिीवा 2 फकट िे पीवाये िे ऊपर 7 फकट ति द दीवीवार 4 वर् पहले बदी नीवाई कथि दी। द दीवीवार ि की तीवाम दीरीवात शकरु िरदी ने ि की तीवार दीख 26.9.1963 वीवाद दी दी ने गलत कलख दी है । 2 फकट िे ऊपर द दीवीवार मौजदू ीवा उाचीवाई ति जदी नवर दी सदी न् 1959 म व उठीवाई गई है"

10. It may be noticed here that in the present second appeal,

the principal point of dispute is, decree for prohibitory and

mandatory injunction passed in favour of plaintiff and against

defendant No.2 in respect of the roof purchased by plaintiff,

leaving the portion of roof 21ft. 3 inch X 55 ft. 3 inch. which has

already been left out and not included in the sale deed of plaintiff.

Thus, there is no dispute about that portion of roof in the present

suit filed by plaintiff. Thus, in this appeal inter se dispute with

regard to the ownership rights in respect of the other properties of

Purohit Ji ka Katla, including temple and gaddi between defendant

No.1 and defendant No.2 is not directly involved and that issue

has been assessed and examined only in relation to issue No.3

wherein the claim of plaintiff for seeking a prohibitory injunction

on the roof purchased by him is to be determined.

It appears that in respect of such inter se dispute between

defendant No.1 and defendant No.2, two other civil suits were

instituted. One Civil Suit No.661/1965 (15/77) instituted in the

name of Thakur Ji Shri Raghunath Ji Virajman Katla Purohit Ji

(10 of 34) [CSA-27/1987]

through Murlidhar against the Purohit Swaroop Narain Ji, decided

vide judgment dated 30.09.1983 by the Court of ACJ No.2 Jaipur

and another Civil Suit No.26/1983, filed on 24.02.1969, in the

name of Thakur Ji Shri Raghunath Ji Virajman Katla Purohit Ji

through Purohit Swaroop Narain Ji against defendant No.2

Murlidhar, decided vide judgment dated 23.12.1983. Certified copy

of both judgments dated 30.09.1983 and 23.12.1983 were

produced by appellant-defendant No.2-Murlidhar during course of

first appeal along with application under Order 41 Rule 27 CPC, to

plead the principle of res judicata in respect of deciding the issue

No.3.

11. It may be also noticed here that in the present second

appeal, appellant has also moved an application under Order 41

Rule 27 CPC dated 13.02.1992, to produce the copy of orders

dated 01.08.1986 and 29.05.1990 as also one another order

dated 15.03.1991. These three orders are connected to the

judgment dated 23.12.1993, passed in Civil Suit No.26/1983 titled

Thakur Ji Shri Raghunath Ji Virajman Katla Purohit Ji through

Purohit Swaroop Narain Ji vs. Murlidhar. The discussion about

these orders would be made while considering the substantial

questions of law relating to res judicata.

12. The trial court framed issues and recorded evidence of

parties.

13. Issue No.1 is whether the disputed roof in question is in the

ownership and possession of plaintiff? Issue No.2 is as to whether

plaintiff is entitled to get possession of portion of roof, by seeking

demolition of the wall in question? Issue No.3 is as to whether

defendant No.1 has no right to sell the properties of temple and

plaintiff No.1 and 1/2 has no right to purchase the same,

(11 of 34) [CSA-27/1987]

therefore, the sale if has been made in respect of the properties of

temple, the same is null and void qua defendant No.2 and Thakur

Ji Shri Raghunath Ji? Issue No.4 is as to whether defendant No.1-

Purohit Swaroop Narain Ji and his successors are necessary party

in the present suit? Issue No5 is as to whether the suit property

belongs to Thakur Ji Shri Raghunath Ji, who is not made party in

the present suit, therefore, suit is liable to be rejected and Issue

No.6 is related to relief?

14. The trial court, vide judgment dated 30.09.1983, held issue

Nos.1 and 3 in favour of plaintiff and issue No.2 was decided

against the plaintiff. Issue Nos.4 and 5 were held against

defendant No.2 and finally, judgment and decree in following

terms was passed while dismissing the suit for mandatory

injunction:

"दीवावीवा वीवाद दी कदी नमदी न प्रिीवार : कडग् दी कदयीवा जीवातीवा है:

1. प्रकतवीवाद दीगण िो जरिरये सकथिीवाय दी कदी नरेेधीवााजीवा पीवाबाद कियीवा जीवातीवा है कि यवे वीवाद दी ि की कववीवादग्सत छत पर किस दी प्रिीवार िीवा कदी नमीवा्ण दी न िर तकथिीवा वीवाद दी िे उपयोग व उपभोग म वे बीवाेधीवा दी न पहहाचीवाय ।

2. वीवाद दी प्रकतवीवाद दी से दीवावे िीवा आेधीवा खचीवा् भ दी पीवादी ने िीवा अकेधिीवार दी है ।

3. दीवावीवा वीवाद दी बीवाबत तकड़वीवाये जीवादी ने द दीवीवार खीवारिरज कियीवा जीवातीवा है।

4. प्रकतवीवाद दी दी ना-2 िीवा दी नीवाल व छत पर होिर माकदर म आदी ने जीवा दी ने िीवा अकेधिीवार पवू ् वत् बदसतरू रहे गीवा ।"

15. The plaintiff No.1/1 and defendant No.2 filed their respective

first appeals No.1/1984 and 2/1984, challenging the judgment

and decree dated 30.09.1983, as already mentioned hereinabove.

The first appellate court, while deciding both first appeals, vide

common judgment dated 28.02.1987, has affirmed the judgment

and decree dated 30.09.1983 to the extent of prohibitory

injunction but by setting aside the rejection of the prayer for

mandatory injunction, suit has also been decreed in relation to the

prayer for mandatory injunction by issuing a direction against

(12 of 34) [CSA-27/1987]

defendant No.2, to demolish the wall in question and deliver the

possession of the area of roof, measuring 1.5 ft. towards northern

side and 8 inch towards southern side, falling under the

constructed wall in question. In respect of the relief granted by

trial court keeping intact the right of way of defendant No.2 is

concerned, it has been observed by the first appellate court that

the right of way of defendant Nos.1 and 2 is an admitted fact by

plaintiff, but since in the present suit, the issue of right of way

available to defendant No.2 through the roof in question of

plaintiff is not to be adjudicated, therefore, that part of relief

granted by trial court in the judgment dated 30.09.1983 has been

ordered to be deleted.

16. The defendant No.2, in the instant second appeal, has

assailed both judgments and decree dated 30.03.1983 and

28.02.1987. Appellant has also filed an application under Order 41

Rule 27 CPC dated 13.02.1992, to place three orders dated

01.08.1986, 29.05.1990 and 15.03.1991 on record and has

prayed to consider these documents as additional evidence.

17. The Co-ordinate Bench of this Court, vide order dated

06.07.1990, framed question of law "whether in the facts and

circumstances of the case the doctrine of res judicata can be

invoked in this case?" for consideration. But during the course of

hearing of arguments on the appeal, issues which fall for

consideration by this Court have also given rise to some other

questions of law and, therefore, invoking the powers of Section

100 (5), proviso, this Court, vide order dated 08.09.2022 framed

additional substantial question of law "whether directions for

demolition of wall in question and deletion of the relief in respect

of keeping intact the right of way of defendant No.2 through roof

(13 of 34) [CSA-27/1987]

in question, as done by first appellate court in the impugned

judgment dated 28.02.1987 is based on perverse findings and

stands illegal & unjust, therefore, to this extent at least, the

judgment dated 30.09.1983 is liable to be restored in the peculiar

facts and circumstances of present case as also in the interest of

justice?"

18. Learned counsel for both parties have been heard on both

substantial questions of law.

19. In order to deal with both substantial questions of law,

referred hereinabove, the disputed points which have emerged

between the parties and which are required to be considered by

this Court, to answer the substantial question of law are as under:

(I) Whether the decree for prohibitory injunction passed in favour of plaintiff is not sustainable, in the light of judgments dated 30.09.1983 passed in Civil Suit No.15/77 (661/65) titled Thakur Ji Shri Raghunath Ji through Murlidhar vs. Purohit Swaroop Narain Ji and judgment dated 23.12.1983, passed in Civil Suit No.26/1983 titled Thakur Ji Shri Raghunath Ji through Purohit Narain Ji vs. Murlidhar and both judgments operate as res judicata against the impugned judgment and decree?

(II) Whether decree for mandatory injunction passed in the impugned judgment dated 28.02.1987 to demolish the wall in question is against law of limitation and suffer from perversity?

(III) Whether the right of way to defendant No.2 for coming and going to the gaddi and temple premises through the roof in question, being an admitted right, therefore, keeping intact such right as observed by the trial court in the judgment dated 30.09.1983, has unwarrentedly been ordered to be deleted by the first appellate court, in its judgment dated 28.02.1987 and such deletion may invite

(14 of 34) [CSA-27/1987]

unwarranted litigation in future, therefore, this part of judgment dated 30.09.1983 deserves to be restored?

Point No.I relates to substantial question of law No.1 and

point Nos.II & III pertain to substantial question of law No.2.

20. Since the impugned decree for prohibition passed in favour

of plaintiff is based on concurrent findings of fact, whereas the

decree for mandatory injunction is of reversal, therefore, the

scope of the High Court to interfere with the findings either

recorded concurrently by two courts or recorded by first appellate

court after reversal of the findings of trial court, while exercising

its jurisdiction under Section 100 of CPC is required to keep in

mind and for that purpose, few of the judgments of Hon'ble

Supreme Court, wherein the scope of High Court to exercise its

jurisdiction under Section 100 of CPC has been discussed and

expounded are as under:-

In case of Navaneethammal v. Arjuna Chetty [(1996) 6

SCC 166] the Hon'ble Supreme Court held as under:-

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings for the lower courts.......Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the First Appellate Court was based on no material."

Recently in another judgment reported as State of

Rajasthan v. Shiv Dayal [(2019) 8 SCC 637], it was held that

a concurrent finding of the fact is binding, unless it is pointed out

(15 of 34) [CSA-27/1987]

that it was recorded dehors the pleadings or it was based on no

evidence or based on misreading of the material on records and

documents. The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors.,[AIR 1943 Nag 117 para 43]"

The Hon'ble Supreme Court, in case of Kulwant Kaur v.

Gurdial Singh Mann [(2001) 4 SCC 262] has dealt with the

limited leeway available to the High Court in second appeal and in

para No.34 observed as under:-

"34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be

(16 of 34) [CSA-27/1987]

categorical as to the issue of perversity vis-a-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication--what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:

'103. Power of High Court to determine issues of fact.-- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal-

(a) which has not been determined by the lower Appellate Court or by both the Court of first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or courts by reason of a decision on such question of law as is referred to in Section 100.' The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, but there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."

In case of S.R. Tewari v. Union of India [(2013) 6 SCC

602], the Hon'ble Supreme Court held as under:-

"30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is 'against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of

(17 of 34) [CSA-27/1987]

irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635], Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10], Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636] and Babu v. State of Kerala[(2010) 9 SCC 189])."

The Hon'ble Supreme Court in case of Damodar Lal vs.

Sohan Devi [(2016) 3 SCC 78] while discussing the concept of

perversity, how to be dealt with, observed as under:-

"Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity."

21. Keeping the parameters of law as discussed hereinabove,

now this Court is dealing with all three points (I, II & III), in order

to decide both questions of law.

22. The present suit was instituted by Prakash Chandra Kasliwal

on 09.10.1963, seeking relief of prohibitory and mandatory

injunction, in respect of roof in question situate on the building,

(18 of 34) [CSA-27/1987]

known as Purohit Ji Ka Katla, Chowkri Vishveshwar Ji Johri Bazar

Jaipur.

23. The plaintiff is claiming his ownership and possession over

the roof in question placing reliance upon the sale deed dated

26.12.1957 (Ex.1). This sale deed was executed by Badhi Chand

in favour of Prakash Chandra Kasliwal (plaintiff No.1) who in turn,

during trial of suit sold the property including roof in question to

Raj Kumar Sethi through sale deed dated 13.02.1968 (Ex.4) who

impleaded as plaintiff No.1/1. It has come on record that Badhi

Chand purchase the property from Purohit Swaroop Narain who is

defendant No.1. As far as defendant No.1 is concerned, he has not

disputed the ownership and possession of plaintiff over the roof in

question, on the basis of sale deed dated 26.12.1957. it is

undisputed that the portion of roof measuring 21ft. 3 inch east to

west and 55 ft. 3 inch south to north has been left out from sale,

where towards north east corner of roof, one gaddi of Dayal Ji is

constructed and towards southern side, one kitchen, temple and

room with tin shed portion in frond thereof are situated. The

plaintiff has not raised any dispute about the portion of gaddi,

temple and kitchen etc. except making an averment in the plaint

that defendant No.1 is owner of that portion who has kept

defendant No.2, to perform the seva puja in the temple. The

plaintiff has admitted the possession of defendant No.2 over the

portion of temple premises as pujari and over the roof to the

extent of tin shed portion measuring 21ft. 3 inch and 55 ft. 3 inch

which undisputedly was not purchased by plaintiff. As a matter of

fact, defendant No.2 on the strength of his actual and physical

possession over the temple premises, denied the plaintiff's claim

(19 of 34) [CSA-27/1987]

for prohibitory and mandatory injunction in respect of the roof in

question.

The dispute, in respect of erection of wall in question and

thereby pressing/covering the slight area of portion of roof

purchased by plaintiff and the right of way of defendant No.2

through the roof purchased by plaintiff, are concerned, the same

would be considered while deciding the substantial question of law

No.2 dealing with the point Nos.II & III.

24. Herein, this Court has noticed that defendant No.2 in his first

written statement dated 13.03.1964, denied the right to sell the

property by defendant No.1 and admitted himself to perform seva

puja in the temple since generations and declined his appointment

as pujari by defendant No.1. Defendant No.2 has contended that

he is in actual use and possession of the temple premises and also

of roof up to the limit of tin shed and further up to the place of

basils tree, therefore, the defendant No.1 has no right to sell the

roof in question to this extent to the plaintiff. When, after filing

written statement dated 13.03.1964 by defendant No.2, the

original plaintiff-Prakash Chandra Kasliwal sold the property to Raj

Kumar Sethi through sale deed dated 13.02.1968 and Raj Kumar

Sethi was impleaded as plaintiff No.1/1 and amended plaint with

insertion of additional paragraph No.5 (ka) relating to the

purchase of suit property by plaintiff No.1/1 through sale deed

dated 13.02.1968 was filed, the defendant No.2 submitted his

written statement to the amended plaint and in the amendment

written statement dated 03.10.1977 and 13.04.1978, while

replying para No.5 (ka), defendant No.2 claimed that the

properties in his possession are the properties of idol Thakur Ji

Shri Raghunath Ji, which was constructed by one Sadhu Atma

(20 of 34) [CSA-27/1987]

Ram Ji and Sadhu Atma Ram Ji transferred these temple

properties to one Shri Sadhu Ram Mishra who happens to be

disciple, through a document dated miti Baishakh Badi 5 Samvat

1946. Sadhu Ram Mishra was alleged to be Baba of defendant

No.2 being elder brother of his father and with such additional

pleadings, defendant No.2 alleged that he is having the possession

over the temple premises as shebait (pujari) and manager and the

properties belongs to Thakur Ji Shri Raghunath Ji, therefore, any

sale of such properties is null and void.

25. Due to such dispute raised by defendant No.2 by way of his

amended written statement, issue No.3 was framed by the trial

court to the effect as "as to whether defendant No.1 has no right

to sell the properties of temple and plaintiff Nos.1 and 1/2 has no

right to purchase the same, therefore, the sale if has been made

in respect of the properties of temple, the same is null and void

qua defendant No.2 and Thakur Ji Shri Raghunath Ji?"

26. While deciding issue No.3, trial court as well as first appellate

court, on appreciation of oral and documentary evidence of both

parties, have recorded a fact finding that defendant No.2 admits

that shops at ground floor in the Katla Purohit Ji were the

properties of Purohit Swaroop Narain Ji and therefore, the roof

situated on these properties at the first floor also belongs to

Purohit Swaroop Narain Ji. The document of Baishakh Badi 5

Samvat 1946(Ex.4) has been disbelieved as firstly, the document

has been found to be suspicious and neither the details of

properties of temple are mentioned therein nor stamp was

purchased in the name of executant, his signature is not proved

and is not registered. Both courts below have noticed that

defendant No.2 has not challenged the sale made by defendant

(21 of 34) [CSA-27/1987]

No.1-Purohit Ramswaroop Narain Ji to Badhi Chand and further

has disputed the sale deed made by Badhi Chand in favour of

plaintiff-Prakash Chandra Kasliwal and the subsequent sale deed

dated 13.02.1968, executed by Prakash Chandra Kasliwal to

plaintiff No.1/1-Raj Kumar Sethi, first time in the amended written

statement, therefore, his change of stand is not believable.

Further, taking into account the admission of defendant No.1, in

favour of plaintiff, and all evidence on record, the issue No.3 has

been decided against defendant No.2.

27. This Court is concerned with findings of issue No.3 in respect

of the roof in question which is subject matter of dispute in the

present suit and on which the plaintiff claimed his ownership and

possession on the basis of sale deed dated 26.12.1957. It has

already been clarified that in the present suit, there is no dispute

about the other portion of roof, where gaddi and temple etc. are

situated.

28. The defendant No.2-appellant sought to apply the principle

of res judicata for deciding the issue No.3 and thereby on the

present civil suit of plaintiff, placing reliance upon two judgments

dated 30.09.1983 and 23.12.1983. He produced certified copy of

both these judgments during the course of his first appeal

No.2/1984 along with an application under Order 41 Rule 27 CPC.

(a). The judgment dated 30.09.1983 has been passed in an

another suit bearing No.15/1977 (661/65) by the Court of

Additional Civil Judge, No.2 Jaipur City which was filed by

defendant No.2-Murlidhar against defendant No.1-Purohit Swaroop

Narain Ji having titled Thakur Ji Shri Raghunath Ji Virajman Katla

Purohit Ji through Murlidhar shabiat Pujari and Manager vs.

Purohit Swaroop Narain. This suit is in respect of the other

(22 of 34) [CSA-27/1987]

properties, relating to the dispute of ownership between the

Murlidhar and Purohit Swaroop Narain Ji, which is different

property than the suit property of roof in the present suit. The

judgment passed in that suit has no concern with the roof in

question which is subject matter of disputed in the present suit.

The defendant No.2 placed reliance on the judgment dated

30.09.1983, passed in another suit, only to contend that plaintiff-

Prakash Chandra Kasliwal admitted in that suit that the roof in

question to be the property of temple. The first appellate court has

observed in respect of the judgment dated 30.09.1983, passed in

another suit No.15/1977 that the roof in question which is subject

matter of dispute in the present suit was not disputed property in

that suit No.15/1977. Further, the plaintiff has not claimed any

right over the portion of 21ft. 3 inch X 55 ft. 3 inch which was not

purchased by him. Therefore, the first appellate court has held

that the judgment dated 30.09.1983 passed in civil suit

No.15/1977 has no effect of the principle of res judicata as far as

the judgment passed in the present suit No.16/1977 is concerned.

It was also noticed that only the copy of judgment dated

30.09.1983 has been produced as additional evidence and the

plaint, written statement and issues of Suit No.15/1977 were not

produced. The issue of res judicata is a mixed question of fact and

law which requires appreciation that the issue involved in the

subsequent suit is directly and substantially, was in issue in any

previously instituted suit, therefore, pleadings of previous suit are

also necessary to examine the similarity of the issue in both the

suits. The defendant No.2 for no good reason has not produced

the plaint and written statement, issues involved in the suit

No.15/77 (661/65) and only the copy of judgment of suit dated

(23 of 34) [CSA-27/1987]

30.09.1983 has been produced. The perusal of the judgment has

revealed that the roof in question which is subject matter of

dispute in the present suit, was not at all involved in that suit

No.15/1977 whereupon judgment dated 30.09.1983 has been

passed. Further it has also come on record that judgment dated

30.09.1983 is not final but has been assailed by way of filing first

appeals, which are pending. Therefore, first appellate court

declined to accept that judgment to operate as res judicata in the

present suit. This Court, does not have any disagreement with

findings of the first appellate court, recorded in relation to the

judgment dated 30.09.1983 passed in the civil suit No.15/1977,

wherein inter se dispute between defendant No.2 and defendant

No.1, was decided and that judgment have no effect of res

judicata, in the present suit filed by plaintiff. The subject matter of

suit property is wholly different.

(b). Another judgment dated 23.12.1983 was passed by the

Court of Additional Civil Judge No.2, Jaipur City in another Civil

Suit No.26/1983 titled Thakur Ji Shri Raghunath Ji Virajman Katla

Purohit Ji through Purohit Swaroop Narain Ji vs. Murlidhar

instituted on 24.02.1969 by defendant No.1-Purohit Swaroop

Narain Ji against defendant No.2 Murlidhar. This judgment also

pertains inter se between defendant No.1 and defendant No.2 in

respect of other properties. The roof in question which is subject

matter in the present suit is not in the issue in that suit. Further

this judgment dated 23.12.1983 has been delivered after deciding

the present suit vide judgment dated 30.09.1983. Thus, the

fundamental principle, for application of the principle of res

judicata is absent. The first appellate court has rightly declined the

applicability of the principle of res judicata on the basis of this

(24 of 34) [CSA-27/1987]

judgment dated 23.12.1983, to the present suit and this Court

does not find any infirmity/illegality in the findings of the first

appellate court.

29. Here, it is worthy to deal with the application under Order 41

Rule 27 CPC dated 13.02.1992 filed by appellant in the present

appeal, the certified copies of orders dated 01.08.1986,

29.05.1990 and 15.03.1991 sought to be placed on record which

pertain to the judgment dated 23.12.1983.

30. In fact, it has been discussed about the judgment dated

23.12.1983 passed in the civil suit No.26/1983, filed by and on

behalf of Purohit Swaroop Narain Ji against Murlidhar that the

same has no effect of res judicata in the present suit. After

passing the judgment dated 23.12.1983, from the side of plaintiff-

Purohit Swaroop Narain Ji, an application No.33/1984 was moved

to recall the judgment dated 23.12.1983. But this application has

been dismissed vide order dated 01.08.1986. Against this order

dated 01.08.1986, appeal No.109/1986 was preferred which too

has been dismissed vide order dated 29.05.1990. That apart, one

review application bearing Case No.34/1984 was also filed by and

on behalf of Purohit Swaroop Narain Ji, seeking review of the

judgment dated 23.12.1983. This review application has also been

dismissed vide order dated 15.03.1991. Thus, all these three

orders dated 01.08.1986, 29.05.1990 and 15.03.1991, by all

means are connected with the judgment dated 23.12.1983,

passed in Civil Suit No.26/1983 and virtually affirm the judgment

dated 23.12.1983. This Court has already discussed that the

judgment dated 23.12.1983 itself has not application of res

judicata to the present suit, therefore, all these three orders

through which that judgment dated 23.12.1983 has been

(25 of 34) [CSA-27/1987]

affirmed, are not required to be taken on record in the present

second appeal. Accordingly, application under Order 41 Rule 27

CPC dated 13.02.1992 filed by the appellant is hereby dismissed.

31. The whole discussion made hereinabove leads to the

conclusion that the judgment dated 30.09.1983 passed in Civil

Suit No.15/77 (661/65) and the judgment dated 23.12.1983

passed in Civil Suit No.26/1983 have no application of the

principle of res judicata to the present suit and the judgment and

decree passed in the present suit does not affect by these

judgments.

32. After discussion in respect of applicability of the principle of

res judicata, it may be noticed that as far as issue No.3 is

concerned, there are concurrent findings of fact of both courts

below, passed on appreciation of oral and documentary evidence

to conclude that plaintiff has acquired ownership and possession

of the roof in question through registered sale deeds and

therefore, is entitled for the decree of prohibitory injunction

against both defendants restraining them not to raise any

construction on the roof in question. The principle of law as

expounded in case of Navaneethammal v. Arjuna Chetty (supra)

and State of Rajasthan v. Shiv Dayal (supra), which has again

been reiterated in recent judgment delivered in case of C.

Doddanarayan Reddy vs. C. Jayarama Reddy [(2020) 4 SCC

659] is applicable in the present case in respect of the decree for

prohibitory injunction and this Court is not inclined to interfere

with the impugned judgment, to the extent of the decree of

prohibitory injunctions passed in favour of plaintiff and the same is

hereby affirmed. The point No.1 stands decided against the

appellants and as a consequence, when it has been observed that

(26 of 34) [CSA-27/1987]

the principle of res judicata is not applicable to the present case,

therefore, substantial question of law no.1 stands decided

negative and is answered against the appellant.

33. Substantial question of law framed vide order dated

08.09.2022 is as under:-

"whether directions for demolition of wall in question and deletion of the relief in respect of keeping intact the right of way of defendant No.2 through roof in question, as done by first appellate court in the impugned judgment dated 28.02.1987 is based on perverse findings and to this extent at least, the judgment dated 30.09.1983 is sustainable in the peculiar facts and circumstances of present case as also in the interest of justice?"

34. In relation to the prayer of plaintiff for seeking demolition of

the wall in question, issue No.2 was framed.

35. The limitation for the suit for mandatory injunction is not

prescribed in any specific provision under the Limitation Act. In

the old Limitation Act of 1908 the provision of Article 120 was

applicable for this nature of relief which provides limitation of six

years. After commencement of the present Limitation Act, 1963

w.e.f. 05.10.1963, the earlier provision of Article 120 has been re-

numbered as Article 113 and wherein the period of limitation of six

years has been reduced to three years. Thus, on the suits seeking

decree of mandatory injunction, as per Article 113 of Limitation

Act, 1963, the limitation is three years from the date of accrual of

the right to sue. As per record, it stands clear that present suit

was instituted on 09.10.1963. By that time, the Limitation Act of

1963 has come in force as this Act received the assent of the

precedent on 5th October, 1963 and published in the gazette of

(27 of 34) [CSA-27/1987]

India, dated 5th October, 1963. Thus has come in operation w.e.f.

5th October, 1963. Obviously, after commencement of the

Limitation Act of 1963, w.e.f. 05.10.1963, the provisions of Article

120 enumerated under the old Limitation Act, 1908 stood ceased

to operate. The trial court was right in applying the period of

limitation three years as per Article 113 of Limitation Act, 1963

and holding the present suit for seeking the relief of mandatory

injunction to demolish the wall in question as barred by limitation.

But the first appellate court has committed illegality and

jurisdictional error, in assuming the limitation of six years for the

relief of mandatory injunction, by applying Article 120 of the old

Limitation Act, 1908. The first appellate court has not adverted to

the date of commencement of the Limitation Act, 1963 and the

date of institution of the present suit as by that time, the provision

of Article 120, under the old Limitation Act, 1908 was not in

operation. It is thus apparent that the directions issued by the first

appellate court, decreeing the plaintiff's suit of mandatory

injunction to demolish the wall in question stand erroneous and

against the law of limitation, as such to this extent the judgment

dated 28.02.1987 passed by first appellate court deserves to be

quashed and the judgment dated 30.09.1983 is liable to be

restored.

36. That apart, the first appellate court has not adhered to the

other relevant factors, which can be noticed in the facts and

circumstances of present case and renders the impugned

judgment dated 28.02.1987 passed by appellate court perverse to

the extent of issuing direction to demolish the wall in question.

Following factors have not been taken into account by the first

appellate court:-

(28 of 34) [CSA-27/1987]

"(a) Originally, the prayer for mandatory injunction to demolish the wall in question was made by Prakash Chandra Kasliwal who instituted the suit on 09.10.1963. It is undisputed fact that prior to that wall in question has been constructed. The plaintiff has sold the property including the roof in question of which the wall in question has been erected to one Raj Kumar Sethi during the course of suit, through sale deed dated 13.02.1968 and thereafter the subsequent purchaser Raj Kumar Sethi also got his impleadment in the suit as plaintiff No.1/1 and the cause of seeking demolition of the wall was pursued in the suit jointly by original plaintiff Prakash Chandra Kasliwal and the subsequent purchaser plaintiff No.1/1-Raj Kumar Sethi. The trial court has dismissed the prayer of plaintiffs to demolish the wall and dismissing the suit for mandatory injunction to this extent vide order dated 30.09.1983. The cause for demolition of wall was not pursued by the original plaintiff Prakash Chandra Kasliwal but was pursued by the subsequent purchaser Raj Kumar Sethi, who alone filed the first appeal No.1/1984 against the dismissal of suit for mandatory injunction and declining the prayer for demolition of the wall. Undisputedly, as far as subsequent purchaser Raj Kumar Sethi is concerned, he purchase the roof in question along with the wall in question which has been erected by defendant No.2. Thus as far as subsequent purchaser Raj Kumar Sethi is concerned, his right for seeking demoliton of wall in question, obviously has become barred by limitation and was also suffered with acquiescence. In the first appeal, the original plaintiff- Prakash Chandra Kasliwal did not pursue the cause of action for seeking demolition of the wall, therefore, the first appeal preferred by the subsequent purchaser Raj Kumar Sethi alone who in the capacity of being a subsequent purchaser, the directions to demolition of the wall in question could not have been passed.

(29 of 34) [CSA-27/1987]

(b) It is not in dispute that the wall in question is 37 ft. in length and 7 ft. in height. Such large wall in not possible to be constructed within a day or two. There is nothing on record that the plaintiff Prakash Chandra Kasliwal ever objected the defendant No.2 at the time of raising construction of the wall in question. Further, the plaintiff himself admits that towards northern side, only a portion of 1.5 ft. of his roof has come under the wall and towards southern side only a portion of 8 inch of his roof has come under the wall in question. Thus, it is apparent that the wall has been constructed in slanting manner. Considering the area of encroachment, alleged to be come under the constructed wall, it may not be assumed that defendant No.2, deliberately and intentionally extended the construction of wall, in order to include such minor portion of roof of the plaintiff or having any intention to encroach thereupon. Obviously, if such area has come during the course of construction of wall, same is some mistake of measurement that too on the part of mason concerned. The defendant No.2, may not be assumed to have an intention to encroach upon the roof of plaintiff, only to this minimum area of 1.5 ft. and 8 inch and that too, when the area of measurement is an erratic and irregular manner.

(c) The plaintiff-Prakash Chandra Kasliwal has instituted the suit for mandatory injunction, after construction of the wall. He has not pleaded that at the time of construction or during the course of construction of wall, he pointed out to defendant No.2 that the wall is being constructed covering his roof area towards northern side 1.5 ft. and towards southern side 8 inch. It is only after the complete construction of wall, the plaintiff has noticed that such area of his roof has been pressed, by the construction of wall in question. Considering this minimal area of dispute, the plaintiff could have make an alternative prayer asking for the

(30 of 34) [CSA-27/1987]

damages/compensation from the defendant No.2 at least when the suit was brought after construction of wall. The plaintiff is seeking demolition of the wall in question just in order to get possession of his roof area which is very small portion it means towards northern side of wall 1.5 ft. and towards southern side of wall 8 inch only. Even an alternative prayer for damages has not been made by plaintiff which shows the bad intention on the part of plaintiff. In such scenario, the filing of present suit by plaintiff-Prakash Chandra Kasliwal having collusion with the defendant No.1 Purohit Swaroop Narain who supported the plaintiff's case, may not be ruled out. If the plaintiff was so serious for his rights over the coming of his small portion and negligible portion of roof under the wall, while praying for demolition of the wall being a prudent and reasonable man, he could have also made an alternative prayer for claiming damages also if demolition is not permitted by the court. If the prayer for damages has been made, though as an alternative prayer, the court could have consider to that aspect of matter, to maintain the balance of interest and equity between both parties and some amount of damages might be awarded to the plaintiff. In that backdrop of fact, the trial court may not be said to be unjust and improper in not decreeing the suit for mandatory injunction and not passing any direction to demolish the wall in question, apparently just considering the area under dispute is meager and very small. Approach is a practical and justice oriented approach. The alternative prayer of damages was not made in the suit, so trial court could not consider the same. The first appellate court without adverting to this aspect of the matter, has adopted a harsh and pedantic approach, in upsetting the findings of trial court and by issuing directions in mandatory form to demolish the wall in question, just to get free the portion of roof of

(31 of 34) [CSA-27/1987]

plaintiff which is towards northern side of wall 1.5 ft. only and towards southern side of wall 8 inch only. In that view of matter, the directions issued by the first appellate court may not be said to be just and proper. In the interest of justice, such directions may not be sustained, now after expiry of about 58 years. It is trite law that decree for mandatory injunction can be passed only in exceptional and extraordinary circumstances. This Court is convinced that no such exceptional and extraordinary circumstances exist in the present case so as to grant of decree for mandatory injunction in favour of plaintiff. Since the plaintiff has not prayed for any damages, even as an alternative relief, in case of denial of the decree for mandatory injunction, therefore, the damages neither can be assessed nor can be awarded by this Court.

37. After discussion of the factual matrix and evidence available

on record, and applying the principle of law as expounded by

Hon'ble Supreme Court in case of Kulwant Kaur v. Gurdial Singh

Mann (supra) and S.R. Tewari v. Union of India (supra) and further

in case of Damodar Lal vs. Sohan Devi (supra), this Court finds

that first appellate court has committed perversity in reversing the

judgment of trial court dated 30.09.1983. In respect of decreeing

the plaintiff's suit for mandatory injunction and decree for

mandatory injunction to demolish the wall in question, passed by

first appellate court can be said to be suffer from perversity as

well, which is against law of limitation also.

38. In that view of matter, the point No.II is decided in favour of

appellant and the judgment and decree dated 28.02.1987 is set

aside to the extent of passing direction for demolition of the wall

in question and to this extent, the judgment dated 30.09.1983 is

restored.

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Point No.(III) Whether the right of way to defendant No.2 for

coming and going to the gaddi and temple premises through the

roof in question, being an admitted right, therefore, keeping intact

such right as observed by the trial court in the judgment dated

30.09.1983, is not harmful to the plaintiff nevertheless such

obstruction has unwarrentedly been ordered to be deleted by the

first appellate court, in its judgment dated 28.02.1987 and rather

such deletion now may invite unwarranted litigation in future,

therefore, this part of judgment dated 30.09.1983 deserves to be

restored?

39. The plaintiff in his plaint itself has admitted the right of way

of defendant No.1 through his purchased portion of roof, for

coming and going to the temple premises and gaddi. This right of

way has been admitted to be available to defendant No.2 as well

in evidence. In the sale deed dated 26.12.1957 (Ex.1) this right of

way is already protected. The plaintiff has conferred this right of

way upon the defendant No.1 but defendant No.2 being in actual

and physical possession of the temple premises, is in fact entitled

to exercise this right of way, through the roof in question of

plaintiff, for coming and going to his gaddi and temple. The

plaintiff in his evidence has not disputed such right of way,

available to defendant No.2. Thus, as per pleadings, documents

and evidence, the right of way to defendant No.2, for coming and

going to the gaddi and temple premises through the roof

purchased by plaintiff is an undisputed fact and, therefore, the

trial court just in the operative portion of the judgment dated

30.09.1983 observed that this right of way already available to

defendant No.2 and is undisputed will remain intact. The first

appellate court too has not disbelieved, in respect of the right of

(33 of 34) [CSA-27/1987]

way available to defendant No.2, rather has affirmed that right but

has passed an order to delete the observations of the trial court in

this regard as recorded in the judgment dated 30.09.1983, only

for the reason that the same is not subject matter in issue in the

present suit and although plaintiff admits the right of defendant to

have a way through the roof of plaintiff for coming and going to

the gaddi and temple premises, yet, if any, dispute would arise in

relation to this right, the defendant No.2 may get adjudicate that

dispute in separate proceedings.

40. Such reasonings assigned by the first appellate court to

upset the observations noted to keep intact the right of way of

defendant No.2, obviously invite a future litigation. Once this is an

admitted and undisputed right, the trial court, if had indicated that

right in the operative portion of judgment, the same does not lead

to any miscarriage of justice and it was not warranted for first

appellate court to pass an order to delete that observation of the

trial court from the judgment dated 30.09.1983. It may not be

held in the interest of justice. The exercise of powers by the first

appellate court to this extent, seems to be unwarranted rather

may lead to a fresh litigation and would propel multiplicity of

litigation, which showed be curbed by all possible means. This

Court finds that if the right of defendant No.2, to have a right of

way through the lands in question of plaintiff for coming and going

to the temple premises, has already been affirmed in the body of

judgment though it was not necessary for the trial court to

incorporate that right in the operative portion of judgment as

defendant No.2 has not claimed any specific relief in that respect.

Nevertheless, once the trial court has expressly indicated that

right to keep intact, it was not warranted for the first appellate

(34 of 34) [CSA-27/1987]

court to pass an order to delete that part of judgment from the

operative portion of decree dated 30.09.1983. Therefore, the point

No.3 is decided in the manner that the judgment dated

28.02.1987, passed by first appellate court to the extent of

cancelling the point No.4 noted in the judgment dated

30.09.1983, keeping intact the right of way of defendant No.2

through the roof of plaintiff, for coming and going to his gaddi and

temple premises, is not sustainable and this part of relief, being

an innocuous in nature, which would certainly avoid the future

litigation between parties in this respect, is maintained.

Accordingly, point No.III stands decided in favour of appellant.

41. For discussion made hereinabove, the substantial question of

law No.2 is answered affirmative and stands decided in favour of

appellant and as a result, the judgment dated 28.02.1987 to the

extent of issuing direction for demolition of wall in question and

deletion of the observation in relation to keeping intact the right of

way of defendant No.2, is set aside and the judgment dated

30.09.1983 is restored.

42. The upshot of discussion is that second appeal is partly

allowed and impugned judgment dated 28.02.1987 is hereby

quashed to the extent of decreeing the suit for mandatory

injunction and deleting the right of way available to defendant

No.2 through the roof in question and the judgment dated

30.09.1983 is restored. There is no order as to costs.

43. All pending application(s), if any, stand(s) disposed of.

44. Record be sent back.

(SUDESH BANSAL),J

SAURABH/

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