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2005 DIGILAW 2994 (RAJ)

Babu Lal v. Mangat Mal

2005-11-16

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.- Heard learned Counsel for the parties. 2. The appellant is aggrieved against two decrees passed by the first appellate Court dated 27.01.2003 in two suits filed by the plaintiff/respondent which were dismissed by the trial Court vide Judgment s and decrees dated 211.2000 and the first appellate Court reversed both the decrees. 3. Brief facts of the case are that the plaintiff filed a suit for permanent injunction on 01.07.1987 alleging that the plaintiff earlier filed Suit No. 99/1979 (Mangat Mal vs. Municipal Board, Sardarshahar) in which a compromise decree was passed by the Court on 23.08.1986. According to the plaintiff , originally the land in question, a big piece of land, was belonging to the plaintiff . When the plaintiff apprehended illegal action from Municipal Board, Sardarshahar, he filed the suit for injunction against the Municipal Board wherein the plaintiff mentioned in Para No. 3 of the plaint that in the north side of the plaintiff s house, there is a land of four feet and that land is a lane left open for air and light for the property of the plaintiff and his neighbour. Despite the decree passed by the civil Court, the defendant private party wants to encroach upon the said lane, therefore, the plaintiff filed present suit for injunction which is Civil Original Suit No. 31/1987. 4. The plaintiff filed another suit on 25.01.1990, after finding that the land, for which the plaintiff is seeking injunction in Civil Suit No. 31/1987, has been sold by a deed dated 28.01.1987 by Municipal Board, Sardarshahar, therefore, the plaintiff filed suit for cancellation of sale-deed dated 28.01.1987 being Civil Original No. 19/1990. 5. As stated above, both the suits of the plaintiff were dismissed by the trial Court but the dismissal was reversed by the first appellate Court, hence, these appeals by the appellant/defendant in whose favour, the transfer deed has been executed by the Municipal Board, Sardarshahar. 6. According to learned Counsel for the appellant, the suit for cancellation of sale-deed was not maintainable because the plaintiff was not party to the deed. According to learned Counsel for the appellant, in such circumstances, only suit for declaration could have been filed and the Court could have declared that the sale-deed is not binding upon the plaintiff or it is void etc. According to learned Counsel for the appellant, in such circumstances, only suit for declaration could have been filed and the Court could have declared that the sale-deed is not binding upon the plaintiff or it is void etc. but the deed could not have been cancelled by the first appellate Court. Learned Counsel for the appellant further submitted that the plaintiff pleaded that he is owner of the property, therefore, the plaintiff could not have claimed easementary rights, therefore, also, the plaintiff was not entitled for any relief of injunction or of cancellation of sale-deed. 7. Learned Counsel for the appellant also submitted that the land in question is not covered in the definition as given in Rajasthan Municipalities Act. It is submitted that in the lane in question, the plaintiff himself wanted to raise a wall making the lane blind lane, therefore, it cannot be used for public. In view of the above, the land in question cannot be said to be a public lane for which any decree can be claimed by the plaintiff . 8. Learned Counsel for the appellant relied upon Judgment s delivered in the case of (1) Kishori Prasad vs. IIIrd Additional District Judge, Varanasi & Ors., reported in 2003 Allahabad Law Journal 393; (2) Debi Prasad & Ors. vs. Smt. Maika & Ors, reported in AIR 1972 Allahabad 376; (3) Dunia Lal Datta vs. Nagendra Nath Datta & Anr., reported in AIR 1982 Calcutta 163; (4) Mrs. Chilamakurthi Savitri vs. Mrs. Chodagam Nagaratnamma, reported in AIR 1984 NOC (Andhra Pradesh) 79 and (5) Ghani Mohammed vs. Meeru Khan, reported in RLW 1954 p 169. 9. I have considered the submissions of learned Counsel for the appellant and perused the reasons given by the two Courts below. 10. It is clear from the facts mentioned above itself that the plaintiff filed the suit as back as in the year 1979 against the Municipal Board and that suit was compromised and a compromise decree was passed. The lane which has been sold to the appellant is the land which is claimed by the plaintiff as a lane falling between the houses of the plaintiff and the Defendant No. 1 of the Suit No. 99/1979. The lane which has been sold to the appellant is the land which is claimed by the plaintiff as a lane falling between the houses of the plaintiff and the Defendant No. 1 of the Suit No. 99/1979. The Municipal Board was party in that suit and that suit was decree which makes it clear that the land measuring 4 feet x 29 feet was claimed to be a land of lane so as to make it available for beneficial enjoyment of the two properties one of the plaintiff and another of the Defendant No. 1 of Suit No. 99/1979. In these circumstances, the first appellate Court was fully right in holding that such a land could not have been sold by Municipal Board to private persons. 11. So far as contention of learned Counsel for the appellant that the suit for cancellation of the deed was not maintainable is concerned, it does not arise in the facts of the case in view of the fact that the plaintiff s another suit was for grant of decree for injunction and that suit has been decreed. That makes a deed void and ineffective against the plaintiff . Otherwise also, the effect of the deed after the decree holding that the deed cannot create any right, title or interest in the property in dispute saying that it is cancelled or void is also not very much relevant in the present controversy. Therefore, this Court feels that this is not a case calling for interference in the Judgment and decree of the first appellate Court. 12. In view of the above, the Judgment s relied upon by the learned Counsel for the appellant have no relevancy at all looking to the facts of the case. 13. So far as the definition given of lane in the Municipalities Act is concerned, it is a definition where right is claimed by public or person from public for a public lane or where the municipal authorities want to record or declare the lane. Two parties may agree for living a lane between their properties for more beneficial enjoyment of their property and for that, there is no hurdle in law. In view of the above, that consideration is not a relevant consideration in the controversy at all. 14. Two parties may agree for living a lane between their properties for more beneficial enjoyment of their property and for that, there is no hurdle in law. In view of the above, that consideration is not a relevant consideration in the controversy at all. 14. In view of the above, I do not find that any substantial question of law involved in these appeals. Hence, these appeals are hereby dismissed.