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Madhya Pradesh High Court · body

2013 DIGILAW 3 (MP)

Raja Ram v. Chain Singh

2013-01-02

R.S.JHA

body2013
ORDER 1. The appellant has filed this appeal being aggrieved by the judgment and decree of the First Appellate Court passed in First Appeal No. 5A/95 dated 24.8.1998 wherein the judgment and decree dated 28.6.1994 passed in civil suit No. 28A/91 by the Fifth Civil Judge Class-II, Sehore has been set aside. 2. It is submitted that the appellant-plaintiff had filed a suit claiming easementary rights against the defendants as they had constructed a wall on the open land between the plaintiff’s house and Ramdeo Mandir as a result of which the easementary rights of the appellant to air and light as well as of passage was obstructed. It is alleged that the appellant-plaintiff had been using the right to way for the last 100 years which has now been obstructed by the impugned construction of the wall. 3. It is stated that the trial Court appointed a Commissioner, who submitted a report, and relying on the same the trial Court had decreed the suit filed by the appellant-plaintiff but the First Appellate Court has reversed the well reasoned judgment of the trial Court without properly appreciating the facts on record and without looking to the settled law that easementary rights of the appellant/plaintiff are not taken away nor can they be ignored on the ground that there is an alternative right to way available to the appellant/plaintiff. 4. I have heard the learned counsel for the appellant at length. From perusal of the impugned judgment it is clear that the First Appellate Court has relied upon the report of the Commissioner himself and his statement as well as the statement of other withnesses namely; D.W-2 Sawai Singh and others to record a finding to the effect that the impugned wall constructed by the respondents is 6 ft. away from the appellant’s wall; that there is a passage of about 5 ft. 6” between the impugned wall the appellant’s house; that the appellant has a right to way and access available to him; that the appellant has shifted to a newly constructed house about 20 years back and is not using or residing in the house in question for the last 4 to 6 years and on that ground has reversed the judgment and decree of the trial Court. 5. 5. Having perused the record of the case, which is available before this Court and on a perusal of the report of the Commissioner, it is evident that the Commissioner has clearly stated in his report that there is a passage of 5 ft. 6” between the appellant’s house and the impugned wall that has been constructed by the respondents and that this passage gives access to a public street which is on the western side of the appellant’s house. From a perusal of the record as well as the map submitted by the Commissioner it is apparent that the easementary rights to air and light is not obstructed as a result of the said construction as there is a gap of 5ft. 6”. From a perusal of the evidence of D.W-2 Sawai Singh, which has not been controverted, it is further clear that the appellant has in fact shifted to a new house 20 years back and is not presently residing in the house in question though he does visit the house for which he has an alternative access. 6. In view of the aforesaid facts and evidence on record it is clear that the findings recorded by the First Appellate Court does not suffer from any perversity or material illegality nor can it be said that there is non-application of mind to the evidence on record by the First Appellate Court while reversing the judgment and decree of the trial Court. It is further clear that the trial Court, while considering the report of the Commissioner, has not taken into consideration the aforesaid aspect regarding availability of the passage and shifting of the appellant/plaintiff to a newly constructed house. 7. In view of the aforesaid, I find no perversity or material illegality in the impugned judgment passed by the Appellate Court nor does any substantial question of law arise for adjudication before this Court in the present appeal. 8. The appeal filed by the appellant, being meritless, is accordingly dismissed.