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2012 DIGILAW 427 (RAJ)

Kanhaiya Lal v. Sukhdev

2012-02-13

PREM SHANKER ASOPA

body2012
JUDGMENT 1. - By this second appeal, the plaintiff-appellant has challenged part of the judgment and decree dated 01.12.2011 passed by the District Judge, Sikar in Civil Regular Appeal No.39/2011 so far as the same relates to the setting aside the judgment and decree dated 6.8.2011 passed by the Civil Judge (Sr.Division), Danta Ramgarh in Civil Suit No.22/2009. 2. Briefly stated, the facts of the case are that the plaintiff-appellant filed a civil suit for permanent injunction with the averments that there is a personal way for approaching his Haveli, which has been marked as 'EFGHI' and the same is 18' 6" at place F to G and 11' 9" at place E to H and in between its width is 13' 9". Except the plaintiff-appellant, no other person has any right to use the said way in any manner. The defendant-respondents had collected the construction material and wanted to obstruct the said way by opening a new gate and Chhajja, Jangla which will result in narrowing the said way, therefore, permanent injunction may be issued in his favour. 3. The defendant-respondents filed the written statement wherein it was stated that the map filed by the plaintiff was wrong and the defendants are filing the correct map and the way, which is being shown as a personal way, is a combined way of the plaintiff, defendants, Suresh Kumar Darji and Chiman Saini and their legal representatives and at the said place, the defendants were having main gate of their Kacchi Guwadi which was being used by them for coming and going reference of which is there in the Patta of the Kacchi Guwadi. On the northern side, the Janglas of the Haveli of the neighbourer Choka Ram also open towards the way in question. Towards the southern side, the Janglas of the neighbourer Suresh Kumar's Haveli also open towards the way in question. It was further stated that the defendants wanted to open the Janglas in their own land for which the plaintiff had no right to object and to file the suit for permanent injunction. 4. On the pleadings of the parties, the following five issues were framed by the trial court:(Vernacular Matter Ed.) 5. In support of his case, the plaintiff filed his own affidavit as PW-1 and also filed affidavits of PW-2 Chokha Ram, PW-3 Ramesh Kumar and PW-4 Suresh. 4. On the pleadings of the parties, the following five issues were framed by the trial court:(Vernacular Matter Ed.) 5. In support of his case, the plaintiff filed his own affidavit as PW-1 and also filed affidavits of PW-2 Chokha Ram, PW-3 Ramesh Kumar and PW-4 Suresh. In documentary evidence, the plaintiff filed the map Ex.1, photo copy of the Patta with negatives Ex.2, Order of the Gram Panchayat, Danta Ramgarh Ex.3, Receipt of the appeal fees Ex.4, and Stay order of the Panchayat Samiti, Danta Ramgarh Ex.5. 6. In defence, statements of DW-1 Sukhdev, DW-2 Maliram, DW-3 Heeralal, DW-4 Kesharmal and DW-5 Premchand were recorded and in documentary evidence, map Ex.A-1, Original Patta Ex.A-2, Map Ex.A.3, Patta of the Eastern side of the disputed land Ex.A-4, map Ex.A-5, Patta receipt of Gram Panchayat Ex.A-6 and Ex.A-8 permission to make Jagla, Chhaja on the disputed side were produced. 7. After hearing the parties, the trial court restrained the defendants from creating any kind of obstruction in the way to the Haveli of the plaintiff and his brothers marked as EFGHI in the map and not to narrow the way. The defendants were also restrained from making any construction at the place marked IG by demolishing the wall for opening the gate, Jangla, Chhajja, Chabutara, Pushti etc. either themselves or through their agents, servants or representatives. 8. Against the aforesaid judgment and decree dated 6.8.2011, the defendants filed appeal and the appellate court after considering the facts and circumstances of the case and the judgment and decree of the trial court, came to the conclusion that the essential issue which was to be determined was whether the way is only the private way of the plaintiff/defendants. While considering the aforesaid issue on the basis of evidence of the parties, the appellate court at page 6 has considered that the Jangla of other persons are opening on the said way against which no action has been taken by the plaintiff and the plaintiff himself in his cross-examination has admitted that the disputed way is not private way but the same is a public way and the public has a right to get air and light, therefore, the appellate court set aside the judgment of the trial court on Issue Nos. 1, 2 and 5 whereas affirmed the judgment of the trial court on Issue Nos. 1, 2 and 5 whereas affirmed the judgment of the trial court on Issue Nos. 3 and 4 and partly modified the decree of the trial court to the effect that the defendant-appellants therein are restrained from creating obstruction on the way shown in the map annexed with the plaint at the place EFFHI and further will not obstruct or narrow the way. 9. Submission of counsel for the plaintiff-appellant is that his admission as held by the appellate court is not clear and unequivocal and therefore, the same could not be relied and there is other evidence on record which clearly prove that the way in question is a private way of the plaintiff and his family members. Therefore, the judgment and decree of the appellate court is liable to be reversed so far as it is against him and further the judgment and decree of the trial court deserves to be restored. 10. Although in this case, caveat has been filed but no one appears on behalf of the defendant-respondents. However, since the record was called for, the record was also examined. 11. I have gone through record of the second appeal as well as record of both the courts below. 12. In my opinion, the appellate court at page 6 after considering that the Jangla of other persons are opening on the said way against which no action has been taken by the plaintiff and the plaintiff himself in his cross examination has admitted that the disputed way is not private way but the same is a public way, has rightly held the way in question to be a public way. Moreover, in the public way, public has a right to get air and light and the appellate court has rightly allowed the appeal in part. No substantial question of law is involved in this appeal and therefore, the same is dismissed.Appeal dismissed. *******