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2013 DIGILAW 81 (UTT)

JAGMOHAN SINGH SAJWAN v. JAGMOHAN PRASAD

2013-03-01

B.S.Verma

body2013
JUDGMENT Hon’ble B.S.Verma, J. (Oral) Sri Ramji Srivastava Counsel for the appellant seeks permission to amend the relief clause also making prayer to quash the judgment and decree passed by trial court. Permission granted. Amendment has been incorporated. 2. This appeal is directed against the judgment and decree dated 21.4.2005, passed by District Judge Pauri Garhwal in Civil Appeal No. 8/2003 Jagmohan Singh Sajwan vs. Jagmohan Prasad and others, which was filed against the judgment and decree dated 17-9-2003, passed by Civil Judge (J.D.) Kotdwar in Civil Suit No. 23/2001. 3. This appeal has been admitted on the following substantial questions of law:- 1- Whether the finding of the appellate court that the Nagar Palika has a right to initiate the proceedings under section 133 Cr.P.C. with regard to the public way can be a ground to reject the relief claimed by the plaintiff, so far as the use of the ‘Rasta’ in dispute is concerned?. 2- Whether Smt. Kanta Devi having sold the entire land and the ‘Rasta’ having been given to the parties, she has been seized to be the owner of the plots. The finding of the appellate court that Smt. Kanta Devi would have an objection to close the ‘Rasta’ in dispute has no bearing in the matter and the finding are liable to be vitiated. 4. Brief facts of the case are necessary to be narrated for the just decision of substantial questions. According to the plaintiff he filed suit for permanent injunction against the respondents with the allegation that the plaintiff purchased plot from Smt. Kanta Devi W/o Chandra Shekhar through the registered sale deed dated 4.3.1994 and his name was mutated in the revenue record on the basis of the sale deed. The defendant also purchased another plot on 7.7.1997 through registered sale deed. The plaintiff constructed a house on the land purchased from Smt. Kanta Devi, the boundaries of which are in the east- land of Jagmohan Singh Negi, in west- 10feet wide road, in north- 8feet wide road and in sought 8feet wide road. The boundaries of the land of defendants are, in east- the land of Mohani Rawat, in west- land of Patwalji, in north- 8feet wide road, thereafter the house of the plaintiff and in sought the land of Chandra Mohan Barthwal. The boundaries of the land of defendants are, in east- the land of Mohani Rawat, in west- land of Patwalji, in north- 8feet wide road, thereafter the house of the plaintiff and in sought the land of Chandra Mohan Barthwal. Between the land plaintiff and defendants, there is a 8feet wide road which is in use of both the parties. The defendant intended to close this 8feet wide rasta on 3.3.1999 and started to construct a pillar over the boundary of the plaintiff’s land, then the plaintiff made a complaint to S.D.M. Kotdwar, who stopped the construction of pillar. It is also alleged that if the defendant closes the Rasta the plaintiff will suffer great irreparable loss. Therefore the plaintiff fled suit. A map of the land in dispute has been attached with the plaint. 5. The defendants filed their W.S. the purchase of land by both the parties was admitted. In additional pleas it is pleaded that the plaintiff purchased the land in the name of Smt. Kanta Devi W/o handra Shekhar and in north of this land there is 8feet Rasta which has been encroached by the plaintiff and included in his land. Smt. Kanta Devi is a necessary party and plaintiff has no right to file the suit. The real fact is that plaintiff and defendants both have purchased the plots from Smt. Kanta Devi and both are in possession on their own plots. Defendants have purchased 1742 square feet through registered sale deed and the plaintiff purchased 2200 square feet in 1994 and he has constructed his house and also constructed the boundary wall. There is 10 feet wide road which is in his use. The plaintiff has wrongly mentioned in suit that the alleged 8 feet Rasta is in use of the plaintiff. It is also alleged that no door open to plaintiff on this disputed Rasta. The suit has been filed with malafide intention and is liable to be dismissed. 6. The learned trial court framed necessary issues. Parties led evidence. The learned trial court after considering the evidence on record dismissed the suit of the plaintiff holding that disputed Rasta is not being used by the plaintiff and Smt. Kanta Devi was necessary party to the suit. 7. 6. The learned trial court framed necessary issues. Parties led evidence. The learned trial court after considering the evidence on record dismissed the suit of the plaintiff holding that disputed Rasta is not being used by the plaintiff and Smt. Kanta Devi was necessary party to the suit. 7. Aggrieved by the judgment and decree passed by the trial court the plaintiff preferred a first appeal U/S 96 C.P.C.that too was dismissed on the ground that the plaintiff ought to have initiated proceedings U/S 133 Cr.P.C. 8. Further aggrieved this second appeal has been filed. Answer to substantial question No.1 9. So far as the substantial question No.1 is concerned, the finding the first appellant court is that the proceedings could be initiated U/S 133 Cr.P.C. instead of filing the suit for injunction. This finding of the court below is totally perverse. The proceeding U/S 133 Cr.P.C. can only be initiated in respect of dispute of public way. It is an admitted case that according to plaintiff the disputed Rasta is of plaintiff and the defendant whereas according to defendants it is their exclusive Rasta. Nowhere it has been pleaded by either party the Rasta in dispute is a public Rasta. Learned counsel for the defendant during the course of argument drew attention that it is not a public way and it is private way of defendant. The dispute between the plaintiff and defendants is in respect of 8feet wide Rasta. Plaintiff is claiming the use of Rasta by him as well as by the defendants, whereas the defendants are claiming the exclusive use of that Rasta by them only and not by the plaintiff. Therefore civil suit is maintainable and that cannot be dismissed on this ground and finding given by appellate court is perverse finding. The substantial question is answered accordingly. Answer to Substantial Question No.2 10. So far as substantial question No.2 is concerned the right of Smt. Kanta Devi did not exist as on today. The plaintiff and defendants both have claimed their title by way of sale deeds and prior to purchase of plots by the defendant, 8 feet wide Rasta was mentioned in the suit of plaintiff’s land. So far as substantial question No.2 is concerned the right of Smt. Kanta Devi did not exist as on today. The plaintiff and defendants both have claimed their title by way of sale deeds and prior to purchase of plots by the defendant, 8 feet wide Rasta was mentioned in the suit of plaintiff’s land. This fact is also not disputed that the defendants have purchased the land after purchase of plot by the plaintiff, therefore, the existence of Rasta is concerned the boundaries were shown on the same of purchase of land by defendant i.e. 7.7.1997. Both the sale deeds are on record of Lower Court and photo copies of which have also been filed along with the supplementary affidavit by the appellant in appeal. The handmade site plan was also filed. The siteplan and sale deeds are not disputed. 11. appellate court that whether after executing the sale deed in favour of the plaintiff and after giving right to the plaintiff to use the Rasta whether Kanta Devi had a right to mention in the subsequent sale deed that the Rasta can only be used by defendant and not by the plaintiff. The trial court did not consider this fact since the sale deed in favour of plaintiff was prior to the sale deed of purchase of land by the defendant and if a right has been given to the plaintiff to use the Rasta prior to executing the subsequent sale deed in favour of defendants and not at the time of executing the sale deed in favour of defendant right of user of Rasta by plaintiff has been mentioned rather it was mentioned that the defendant Sri Satya Prasad has exclusive right over the 8 feet Rasta. that portion would be treated redundant. It is well settled law that the prior sale deed would prevail on the subsequent sale deed, therefore, Smt. Kanta Devi was not having right to give exclusive right in sale deed, but during the pending proceeding it appears that the defendant had closed the Rasta by putting gate by constructing pillars. 12. So far as the right of Smt. Kanta Devi is concerned, she has no right after sale of land which was sold to plaintiff and defendants. 12. So far as the right of Smt. Kanta Devi is concerned, she has no right after sale of land which was sold to plaintiff and defendants. If a person has personal right to use the Rasta then civil suit is very well maintainable and the only prayer by way of permanent injunction has been sought that the respondents be restrained not to raise any construction over the Rasta and not to interfere in user of Rasta by the plaintiff also. Both the trial court as well as appellate court did not consider this aspect of the matter that in the earlier sale deed while Smt. Kanta Devi had given right over the Rasta to the plaintiff and in subsequent sale deed how she can give exclusive right to the defendant to use that Rasta. Therefore this substantial question of law is answered in favour of the plaintiff and against the defendants and accordingly the suit filed by the plaintiff is decreed. The defendants are directed to remove obstructions raised by them prior to filing of suit or during the pendency of the suit or during the pendency of appeal within three months from today and shall not interfere in the peaceful use of the Rasta by the plaintiff as well as by the defendants. 13. The Second Appeal is accordingly allowed and the impugned judgments and decrees passed by the courts bellowed are set aside.