Rajasthan High Court
Mahmood S/O Ajijuddin vs Purshottam Das Soni S/O Sh. ... on 3 October, 2023
Bench: Mahendar Kumar Goyal
[2023:RJ-JP:26106]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 138/2023
Mahmood S/o Ajijuddin, Aged About 64 Years, Resident Of
Sitabadi, Karauli, Tehsil And District Karauli.
----Appellant-Defendant
Versus
1. Purshottam Das Soni S/o Sh. Pyarelal (Since Deceased)
1/1. Dilip S/o Late Sh. Purshottam
1/2. Sushil Soni S/o Purshottam, Aged About 61 Years, All
Resident Of Sitabadi, Karuali, Tehsil And District Karauli.
----Respondents
For Appellant(s) : Mr. Mukesh Kumar Goyal
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment / Order
03/10/2023
This civil second appeal has been preferred against the
judgment and decree dated 19.01.2023 passed by the learned
Judge, Family Court, Karauli (Rajasthan) (for brevity "the learned
appellate Court") in Regular Civil Appeal No.31/2022, CIS
No.31/2022 whereby, while allowing the appeal, the judgment and
decree dated 20.08.2022 passed by the learned Senior Civil
Judge, Karauli (Rajasthan) (for short "the learned trial Court")
dismissing the Regular Civil Suit No.176/2019, CIS No.176/2019
filed by the respondents/plaintiffs (hereinafter referred to as "the
plaintiffs") for mandatory and permanent injunction, have been
reversed and the suit has been decreed.
The relevant facts in brief are that the plaintiffs filed a suit
for mandatory injunction and permanent injunction against the
[2023:RJ-JP:26106] (2 of 3) [CSA-138/2023]
appellant/defendant (for brevity "the defendant") stating therein
that over the public way existing in between their house and the
house of the defendant, the defendant has put two stone slabs
covering it, thereby causing nuisance and restricting their right of
light and air as well without any authority of law. Therefore, the
decree as aforesaid was prayed for.
The defendant in his written statement, denying the
averments made in the plaint, submitted that the subject way is
the way in between his houses and the house of the plaintiffs and
since, his houses are situated on both sides of the subject way, he
has put the slabs to use it as a bridge to join both his houses. It
was denied that it causes any nuisance or restricts right of light
and air of the plaintiffs. Dismissal of the suit, therefore, was
prayed for.
On the basis of pleadings of the parties, the learned trial
Court framed six issues including relief. After recording evidence
of the respective parties, the learned trial Court dismissed the suit
vide judgment and decree dated 20.08.2022. However, the civil
first appeal preferred thereagainst by the plaintiffs has been
allowed by the learned appellate Court vide judgment and decree
dated 19.01.2023 and the suit has been decreed.
Assailing the impugned judgment and decree, the only
contention advanced by the learned counsel for the defendant,
inviting attention of this Court towards the cross-examination of
the plaintiff No.2-Shri Sushil Soni (PW-1), is that he has admitted
therein that on account of putting the stone slabs, neither any
nuisance is caused nor, the same has obstructed their right to light
and air way. He submits that in view thereof, the learned appellate
[2023:RJ-JP:26106] (3 of 3) [CSA-138/2023]
Court erred in decreeing the suit. He, therefore, prays that the
civil second appeal be allowed, the judgment and decree dated
19.01.2023 be quashed and set aside and the suit be dismissed.
Heard. Considered.
While dismissing the suit filed by the plaintiffs, the learned
trial Court has been swayed by that part of the statement of Shri
Sushil Soni as PW-1 wherein, he has admitted that no nuisance is
caused on account of the stone slabs put by the defendant and it
does not affect their right of way ignoring and overlooking that no
person has any legal right to put any stone slab over the public
way or to obstruct it in any manner. Considering this aspect of the
matter, the learned appellate Court has, while allowing the first
appeal, reversed the findings of the learned trial Court and has
decreed the suit. Despite asking specifically as to right of the
defendant to put the stone slabs over the public way to use it as a
bridge to connect his houses situated towards either side of the
subject way, even the learned counsel could not satisfy this Court
about any such legal right.
In view thereof, this Court finds no merit in the civil second
appeal which is dismissed accordingly.
(MAHENDAR KUMAR GOYAL),J
Manish/69
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