Uttarakhand High Court
Smt. Vidhya Devi And Others ...... ... vs Sher Bahadur Thapa And Another on 8 December, 2023
Author: Vivek Bharti Sharma
Bench: Vivek Bharti Sharma
Reserved Judgement
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No.22 of 2011
Smt. Vidhya Devi and Others ...... Appellants
Vs.
Sher Bahadur Thapa and Another ..... Respondents
Present:
Mr. Arvind Vashishta, Senior Advocate assisted by Ms. Disha Vahsishta,
Advocate for the appellants.
Mr. S.K. Jain, Senior Advocate assisted by Mr. Siddhartha Jain, Advocate for
the respondents
Dated: December 8, 2023
Hon'ble Vivek Bharti Sharma, J.
Present second appeal is filed against the judgment
and decree dated 22.01.2011 passed by Additional District
Judge/VI F.T.C. Dehradun in Civil Appeal No.57 of 2006
"Sultan Singh vs. Sher Bahadur Thapa and another", whereby
the judgment and decree dated 24.05.2006 passed by 2nd
Additional Civil Judge (J.D.), Dehradun dismissing the suit of
the appellant/plaintiff, has been upheld.
2. In brief, facts of the case are that the plaintiff Sultan
Singh (predecessors-in-interest of the appellants) filed a suit
seeking a decree of declaration against the
respondents/defendants, thereby praying that the wall raised
by respondents/defendants be demolished. In the plaint, it
was stated by the plaintiff that he is the owner in possession of
Property No.74, Gandhi Nagar, Ballupur Road, Dehradun;
that, in eastern side of the suit property, at one part there is a
road (Street No.3, Rajendra Nagar) and in another part there
situates property of defendant no.1; that, in the northern side
of the suit property, the property of respondent
no.2/defendant no.2 is situated; that, the plaintiff is residing
in the house since 1979 while the respondents/defendants
constructed their houses in the year 1982-83 and1995,
respectively and started residing there since then; that, the
plaintiffs are using the road situated towards eastern side of
their house from the very inception; that the defendants are
relatives and since the date the respondent no.2/defendant
has constructed the house the respondents/defendants are
obstructing in using the said road; that, all the roads of
Rajendra Nagar Colony are public road and are maintained by
Nagar Palika Parishad, Dehradun; that, in the year 1995 and
1997 the same dispute had arisen wherefor the plaintiff had
made a complaint to S.D.M Dehradun, however, it was
amicably settled at that time; that, thereafter again the
defendants raised dispute regarding use of public road by the
plaintiff whereupon the plaintiff again made a complaint to
S.D.M., Dehradun on which an enquiry was conducted and it
was found that the respondents/defendants have constructed
a wall in front of the suit property and are trying to obstruct
way of plaintiff whereafter the S.D.M. Dehradun directed the
respondents/defendants not to raise any construction at the
spot; that, even after that on 9/10.9.1998 the
respondents/defendants raised a wall of 5 ft. height and
obstructed the use of public path without any authority of law.
3. The respondents/defendants contested the suit and
filed a joint written statement denying the plaint averments. In
the written statement, they specifically denied existence of any
public road in the east side of the property of the plaintiff and
stated that the plaintiffs have no right to go through the
defendants' property which is about 10 ft. above his property.
In additional plea, in para 24 they pleaded that due to
geographical conditions there is a difference of height in the
properties of the plaintiff and defendants; that, there exists
Pusta of defendants in the east side of the suit property and
that there is no road i.e. Street No.3 Rajendra Nagar touching
any of the boundary of the property of the plaintiff.
4. On the basis of pleadings of the parties, the trial
court framed the following issues:-
(i) Whether the plaintiff's suit is undervalued?
(ii) Whether the court fees paid is insufficient?
(iii) Whether the plaintiff has a right to use the road in
dispute?
(iv) Whether the defendants have raised any
construction in the portion of the plaintiff or on the
road in dispute thereby obstructing the way of the
plaintiff?
(v) Whether the plaintiff has a right to get the
construction demolished as raised by the
defendants?
(vi) Whether at the east side of the property of the
plaintiff there exists disputed road at the spot?
(vii) Whether the suit is barred by principles of
promissory estoppel?
(viii) Whether the site plan attached with the plaint is
defective?
(ix) Whether the suit is bad for not making Nagar Palika
Parishad as party to the suit?
(x) Whether the plaintiff is entitled to get the relief, if
any ?
5. Thereafter, both the parties led their evidence. In
support of his plaint, the plaintiff got examined himself as PW1
Sultan Singh and also got examined PW2 Shyam Singh and
PW3 Jaspal Singh Rana while the defendant got examined
DW1 Sher Bahadur Thapa and DW2 Tilak Singh. Besides oral
evidence, the plaintiff also filed documentary evidence. The
respondents/defendants did not file any documentary evidence
in the court.
6. After hearing the learned counsel for the parties and
on perusal of evidence, the trial court vide judgment/decree
dated 24.05.2006 dismissed the suit of the plaintiff. Feeling
aggrieved, the plaintiff filed Civil Appeal No.57 of 2006 in the
court of District Judge, Dehradun. During the pendency of
first appeal, sole plaintiff Sultan Singh died whereafter his
legal heirs (appellants herein) were substituted in the appeal.
Additional District Judge/FTC VI Dehradun, vide
judgment/decree dated 22.01.2011, concurred with the
findings recorded by the trial court and dismissed the first
appeal. Hence, this second appeal.
7. This second appeal came to be admitted by the
order dated 07.09.2017 on the following substantial question
of law:-
"Whether the plaintiffs/appellants have right to use
the public road situated towards of their house, which
was constructed by the colonizer for the purpose of
Rajendra Nagar Colony and the courts below have
committed illegality in dismissing the suit of the
plaintiffs/appellants?"
8. Heard learned counsel for the parties and perused
the entire record.
9. Learned counsel for the appellants/plaintiffs would
submit that the Trial Court as well as the First Appellate Court
has erred in not appreciating the evidence on record properly
and dismissing the suit of the appellants/plaintiffs. He would
further submit that the appellants/plaintiffs are the resident of
Gandhinagar, where they settled in the year 1979; thereafter,
the Rajendra Nagar Colony in the East of the Gandhi Nagar
colony was carved out by the Colonizer; that, the house of the
appellants/plaintiffs is at the boundary of the Gandhi Nagar
from where the Rajendra Nagar colony starts; that, the
Rajendra Nagar colony, being the mountainous area, is at a
elevated level whereas the Gandhi Nagar Colony is 8 to 10 feet
below the ground level of the Rajendra Nagar i.e. where the
road in question is situated.
10. He would further submit that there is a road in the
Rajendra Nagar Colony which ends at a point in the East side
of the house of the appellants/plaintiffs; however, as there is a
drop of 10 feet thereafter, that road ends there. He would
further submit that this road was constructed by the private
colonizers and thereafter it was maintained by the Nagarpalika
(now the Nagar Nigam Dehradun). He would further submit
that after constructing the ground floor of his house the roof of
his house is just opposite to the road of Rajendra Nagar colony
in question, which ends at that point; therefore, the
appellants/plaintiffs have a right to way for this road as this is
a public road.
11. Per contra, learned Senior Counsel appearing for the
respondents/defendants would support the judgments of the
courts below and would submit that there is concurrent
finding of facts recorded by the Trial Court and the First
Appellate Court which should not be interfered with by this
Court in the Second Appeal.
12. In order to decide the substantial question of law
framed by this Court, findings recorded by the trial court on
issue nos.3 and 6 would have to be looked into. These issues
have been decided against the plaintiff and while doing so the
Trial Court has recorded the finding that the plaintiff has not
adduced any evidence so as to show that he is using the
disputed road. On the basis of evidence, the Trial Court held
that the plaintiff has a way from Gandhi Nagar for which he
has also fixed his gate in the western side of his property. In
this regard, the Trial Court also relied upon the report and
statement of Advocate Commissioner PW3 Jaspal Singh Rana
which indicates that there is a Pusta between the property of
plaintiff and defendants and that the plaintiff has a way from
Gandhinagar road and he has also fixed a gate thereupon.
It was also observed by the Trial Court that burden
was upon the plaintiff to prove issue nos.3 and 6, however,
neither he has filed any objection to the report of Advocate
Commissioner nor has filed any evidence so as to prove that
there exists a road in the east of the suit property and that he
has a right to use it. Thus, both the issue nos.3 and 6 have
been decided against the plaintiff/ appellant.
13. The Trial Court recorded the findings thereby
dismissing the suit of the appellants/plaintiffs holding that the
appellants/plaintiffs does not have any right to way as the
road was constructed by a colonizer and ends in the East side
of the appellants/plaintiffs' house. Besides, as per the
statement of the appellants/plaintiffs themselves, they have
got gate of their house on the West side and not in the East
side and that would be extremely ridiculous that a person uses
the right to way to the road not from the main gate, but from
the roof of his house as the level of the road which ends to his
house is at the level of his roof.
14. The First Appellate Court in the same manner
dismissed the appeal and upheld the decision of the trial court
dated 24-05-2006. While upholding the decision of the Trial
Court, the First Appellate Court recorded its independent
findings on each and every issue framed by the Trial Court.
On issue nos.3 and 6, which are subject matter in
this second appeal, the First Appellate Court has recorded a
finding that the appellants/plaintiff has himself admitted in
his statement that the main gate of his house is at the western
side and that it is not plausible that just because the house of
the plaintiff/ appellant is below 10 ft in depth, a road
accessible from its terrace should be used by
plaintiff/appellant. It was further observed that it is also not
geographically possible to park any car or scooter etc on the
terrace of the house of appellant/plaintiff.
15. On perusal of record, this Court finds that both the
courts below have considered the evidence on record
extensively and have recorded categorical findings to the effect
that the suit property is situated at 74, Gandhinagar,
Ballupur; that, the plaintiff and his family members are using
the common road which is in the west side of the suit property;
that, they have built a gate in the west side; that, as per own
admission of the original plaintiff, there is a difference in
height of about 8 feet in the houses of the plaintiff and
defendants; that, after the suit property in the east side there
is a 'pusta' and thereafter there is a road left by colonizer
which is not a common road; that, there is no evidence on
record to show that the appellant/plaintiff or his family
members use the disputed road.
16. The upshot of the discussion made above is that the
substantial question of law is answered in negative against the
appellant/plaintiff. The Trial Court and the First Appellate
Court have passed the judgment/orders after proper
appreciation of evidence and the same do not require any
interference by this Court. Present second appeal is bereft of
merits and the same is hereby dismissed.
17. No order as to costs.
(Vivek Bharti Sharma, J.)
08.12.2023
Rajni
