Ram Gopal v. Sukru — 1996 DIGILAW 408 (ALL)

Judgment : S.K. Phaujdar 1. The oyily substantial question of law on which the appeal was admitted was framed as under :-Whether the plaintiff-respondent having filed the suit in respect of plot No. 27 being appurtenant to his house, could get a decree of demolition on the basis of easementary right? 2. In his plaint, the plaintiff had made a prayer for demolition, for possession and for permanent injunction. It was contended in the plaint with reference to the map annexed to it that his house was shown in the map in blue colour. His sahan lay to the north which was shown in red colour and a part of the sahan lay towards the east which was shown in white. The plaintiff purchased this land from one Bharose by a sale-deed dated 29.11.1951 and was , in possession of the house and sahan. He was also in possession of the portion marked with the letters D C E FG HJK for the last 25 years. His father had also got the plot marked with the letters FLMG in 1948 from the landlord. The plot number of the house was given as 26. The sahan shown in red and white were covered by plot No. 27 while the plots within D C E F G H J K fell in plot No. 28 and that in FLMG fell in plot No. 29. The plaint map was subsequently substituted by another in terms of the order of the Court below dated 16.5.1977. This corrected map indicated that the dispute between the parties was for the northern portion of plot No. 27 and this portion was to the adjacent south of plot No. 28 and adjacent east of plot No. 23. This corrected map also indicated plot No. 29 as disputed sahan and plot No. 28 as the house of the defendant. The plaintiff stated in the plaint that the defendant was having his house in plot No. 23 and there was a door opening on the east and he was permitted to use plot No. 27 only for fetching water from a well that stood to the south of plot No. 27 and west of plot No. 27. The plaintiff stated in the plaint that the defendant was having his house in plot No. 23 and there was a door opening on the east and he was permitted to use plot No. 27 only for fetching water from a well that stood to the south of plot No. 27 and west of plot No. 27. It was alleged that the defendant had no other right either of user or otherwise on plot No. 27 but he had raised a wall and a shed thereon in the temporary absence of the plaintiff. The defence case was one of denial of the plaintiff's claim. It was stated that the plaintiff was not in possession of the portion of CDEFGHJK or FGM L. The wall in question, according to the defence, was made on plot No. 27 on the basis of the possession of the defendant. The possession of the plaintiff on the land in question was denied. 3. The trial Court decreed the suit of the plaintiff and directed the removal of unauthorised constructions and delivery of possession to the plaintiff. There was also a direction restraining the defendants from creating any disturbance in the plaintiffs possession on the suit properly. Upon appeal by the defendant Ram Gopal. the first appellate Court modified the decree of the lower appellate Court and the defendants were directed to pull down the chhappar placed on the door which opened towards the east in the abadi plot No. 27 and to demolish the wall A B which was shown by letters N M in the Amin's map. The appellate Court found that the house of the plaintiff stood in plot No. 26 and a part thereof extended to plot No. 27. The wall in question was found lying towards the east of the house of the defendant and there was a chhappar and that wall was found to be on the north-western corner of the plot No. 27. He further found that the door of the defendant's house opened towards the east and he had been - fetching water from a well-situated towards the south of his house and have been using a strip of land of plot No. 27. He found further that the plaintiff admitted the existence of a rasta which passed through plot No. 27. He further found that the door of the defendant's house opened towards the east and he had been - fetching water from a well-situated towards the south of his house and have been using a strip of land of plot No. 27. He found further that the plaintiff admitted the existence of a rasta which passed through plot No. 27. The door of the house of the plaintiff opened towards the north of this rasta 2 cubits in width. There was an open space about 4 cubits wide and only thereafter (to the further north) was a bagar of Bhagwan Din now in possession of the defendant. It was held that the defendants have got an easementary right to use the land in plot No. 27 up to the neem tree and up to the well for fetching water and the parties had no right to make any constructions upon the rasta. So far the plot No. 28 was concerned it was held that the plaintiff never acquired any title thereon. For plot No. 29 the learned First Appellate Court found gave a decree for plot No. 27 only on the basis of his finding that the parties have no right to make any constructions upon the rasta although the defendants had a right of user thereon. 4. The defendants, still aggrieved by the first appellate Court's decree filed this second appeal and the above substantial question of law was framed. It appears that the language of framing of the substantial question was not happy. The question as framed would suggest that a decree has been granted in favour of the plaintiff on the basis of his easementary right. In fact, it is the defendant's easementary right that has been accepted and it was held that the defendants could, for a limited purpose of going to the well to fetch water, use plot No. 27 and both the parties had no right to make any constructions to close this way. Thus, it was not the easementary right of the plaintiff upon which the suit was decreed. This Court is called upon to see if there was any finding on the possession or ownership of the plot No. 27 as a sahan of either party as, admittedly, this plot lay in between plot No. 26 (of the plaintiff) and plot No. 28 (also belonging to the plaintiff). This Court is called upon to see if there was any finding on the possession or ownership of the plot No. 27 as a sahan of either party as, admittedly, this plot lay in between plot No. 26 (of the plaintiff) and plot No. 28 (also belonging to the plaintiff). This Court is also called upon to see if there was any discussion of the admission of Sukru regarding existence of a road on plot No. 27 and existence of vacant land to the north thereof and existence of the bagar of the defendants thereafter. It was contended by the appellant that there was no finding that there was a wall on that portion of plot No. 27 which was in possession of the plaintiff. It was also contended that there was no rasta shown in the map and the learned counsel submitted that without a finding as to the exact location of the wall, there could not have been a direction for demolition. 5. On behalf of the respondent, it was contended that the scope of the second appeal is very limited and appreciation of the evidence was not permissible. Reliance was placed on a decision of Allahabad High Court on this point as in 1994 RD 113. In this case, it was held that a finding based on appreciation of evidence on record and concurrent finding on fact recorded by the two courts below was binding on the parties in second appeal unless it was shown that the said finding suffered from any error of law. A similar view was taken by the Allahabad High Court in the case in 1992 (III) AWC 1616, wherein the Court has observed that a finding on fact by the two Courts below would not be interfered with in a second appeal unless there was no evidence to support the finding of the facts or the finding was based on mere conjecture and surmises or it was based partly on admissible and partly on inadmissible evidence or if the Courts below ignored material evidence on record. Another judgment in this context was relied upon by the respondents as in 1992 (III) AWC 1694. In this case, however, the Court had explained what was a substantial question of law. 6. Another judgment in this context was relied upon by the respondents as in 1992 (III) AWC 1694. In this case, however, the Court had explained what was a substantial question of law. 6. The lower Court came to a finding of fact that the defendant had a right of user of the land in plot No. 27, for only a strip of it, for going to the well to fetch water and on such finding, he opined that not only the defendant but also the plaintiff had no right to close the path by raising any constructions. Accordingly, he directed the defendant to remove his wall and the chhappar thereon. The lower Court findings made it clear the wall in question was lying towards the east of the house of the defendant and it lay on the north-western corner of plot No. 27. Under that interpretation, wall should lie to the contiguous south of plot No. 28. The evidence of Sukru indicates that he admitted in cross-examination that there was a pathway (rasta) 6 to 7 cubits away from the door and this road was 2 cubits wide. There was a further fallow land 4 to 6 cubits wide whereafter the bagar of Bhagwan Din began. There was no finding, if this admitted rasta was the pathway used by the defendant. I fail to find any discussion on the effect of this admission in locating the exact situation of the wall or the chhappar. There is also no finding where does this wall or chhappar lie exactly. I find sufficient force in the argument of the learned counsel for the appellant that without there being any finding on the possession and ownership of plot No. 27 as a sahan of the plaintiff and without locating the exact situation of the wall, there could not have been any decree of demolition or injunction. I find further that there was no discussion concerning the above quoted admission of Sukru. This Court, being the second appellate Court, will not give a finding on fact and it is necessary to remit back the case to the first appellate Court to give a finding on the question of actual possession of plot No. 27 by one parry or the other and the exact location of the wall and chhappar. This Court, being the second appellate Court, will not give a finding on fact and it is necessary to remit back the case to the first appellate Court to give a finding on the question of actual possession of plot No. 27 by one parry or the other and the exact location of the wall and chhappar. The first appellate Court should also decide as to what was the effect of the aforesaid admission regarding the existence of a road on plot No. 27. The findings of the Courts below for plot Nos. 28 and 29 have gone against the plaintiff and there has been no challenge by way of cross appeal or cross objection and this finding may not, therefore, be reopened. 7. Under these circumstances, the appeal stands allowed. The judgment and decree of the lower appellate Court are set aside so far plot No. 27 is concerned and so far the order of the demolition and injunction thereon is concerned. The trial Court is to reassess the materials before it in the light of the directions given above and to record a clear finding on the points directed above so far plot No. 27 is concerned without recording any further findings for plot Nos. 28 and 29. The decree of the Court of first instance shall remain inoperative till the decision of the appellate Court is arrived at under this remand order. The records of the Courts below be sent down at once to the first appellate Court. The parties are directed to appear before the first appellate Court on 22.4.1996. The parties are directed to bear their own costs.