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2001 DIGILAW 712 (PAT)

Ram Chandra Ram And Others v. Gayatri Devi

2001-08-08

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This second appeal directed against the judgment and decree passed by the 4th Additional District Judge, Gaya on 20th August, 1987 in Title Appeal No. 73/86, 1/87 affirming the judgment of the trial Court passed by the Additional Munsif-II, Gaya in Title Suit No. 83 of 1985/79 of 1986. The defendant of the suit is appellant before this Court. 2. The case of the original plaintiff-appellant was that she had purchased the suit land, as described in Schedule-I of the plaint, in the year 1968 and constructed a house over the same. The defendant-appellant had also purchased her land from the same vendor and she also constructed her house. Both the, plaintiffs and defendants houses were situated in front of each other and in between the aforesaid two houses, the common vendor had left six feet wide road, running from north to south. This private passage between the houses of the parties originated from the Ramdaspur road in the south and it went upto the Municipal lane on the north. The defendant, however, encroached upon this six feet wide passage by making pucca construction and thereby caused obstruction to the plaintfiff in enjoying his ingress and egress to and from his house. The encroachment also obstructed flow of drain water from the plaintiffs house. The plaintiff-respondent therefore, filed the suit for removal of this encroachment on the private passage and the encroachment was described in Schedule-II of the plaint. 3. The defendant-appellant denied that there was any encroachment upon the private passage, as alleged by the plaintiff. He rather pleaded that his vendor had promised to leave a 8-feet wide road in between her house and plaintiffs house, but the plaintiff failed to abide by the limitations placed upon her sale-deed by the vendor and the result was that only 3 feet wide road was left in between the house of plaintiff and his own. 4. Both the lower Courts decided the issue relating to the existence of private passage between the houses of the plaintiff and the defendant in favour of plaintiff-respondent and both the lower Courts held that, of course there was a six feet vide road in between the houses of the plaintiff and the defendant and the defendant-appellant had encroached upon the same. Therefore, the suit was decreed and the defendant-appellant was directed to remove the encroachment. 5. Therefore, the suit was decreed and the defendant-appellant was directed to remove the encroachment. 5. Before this Court the only substantial question of law formulated was that whether without any scientific measurement of the encroachement, the lower Courts were competent to order removal of this encroachment and passed a decree accordingly. 6. I find that the trial Court has also the appellate Court referred to certain admission in the W.S. of the defendant-appellant as also in the evidence of witnesses examined on behalf of defendant-appellant. It has been stated by both the Courts that in the W.S. of the defendant, it was pleaded that at one stretch of the road only, a 3 feet passage was left and in the middle there was 5 feet passage and towards other end of the road there was 6 feet wide passage. So this W.S. of the defendant-appellant was clear to the effect that at one end of the road, there was some construction narrowing down the passage. The aforesaid admission in the W.S. gave support to the case of the plaintiff-respondent that there must have been left a six feet wide road between the houses of the parties. Besides the above admission in the W.S., both the lower Courts referred to certain admissions by the D.Ws. from which the Court gathered that there was, of course, an existence of a private passage in between the houses of parties which was six feet wide. Under these circumstances both the lower Courts passed decree for removal of encroachment by the defendant-appellant. So I am of the opinion that the findings of fact arrived at by the two Courts below would almost be final and this Court would be disinclined to interfere with this finding of fact. A question was raised before me to the effect that without measurement by any Pleader Commissioner or by any local inspection, it was difficult to carry out the removal, without any specification of the alleged encroachment. A question was raised before me to the effect that without measurement by any Pleader Commissioner or by any local inspection, it was difficult to carry out the removal, without any specification of the alleged encroachment. So in this connection, I am of the opinion that when the two lower Courts held on the basis of evidence, documentary and oral that there was a passage six feet wide between the house of the parties, it was quite natural for removal of the encroachment whether it may be all along private passage, so that a six feet wide passage must be cleared and left open for passage to be used by both the parties. So there was no difficulty in removing the obstruction and encroachment on the private passage in between the houses of the parties which was held to be six feet wide by the findings of both the lower Courts. 7. In the result, I am of the opinion that there is nothing on the record to invite this Court to differ with the findings of the lower Courts. 8. Hence, this appeal is dismissed. Parties shall bear their own costs.