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2014 DIGILAW 223 (RAJ)

LRs of Bhima Ram v. Achla Ram

2014-01-17

ARUN BHANSALI

body2014
JUDGMENT 1. - This second appeal under Section 100 CPC is directed against the appellate judgment and decree dated 15.03.2007 passed by District Judge, Sirohi ('the appellate court'), whereby, the judgment and decree dated 21.05.2005 passed by Civil Judge (Junior Division), Revdar, District - Sirohi has been reversed and the suit filed by the respondents - plaintiffs was decreed. 2. The facts in brief may be noticed thus: the plaintiffs - Achla Ram, Babu Lal and Arjun Ram filed a suit for permanent and mandatory injunction against the Gram Panchayat, Bhatana and Bhima Ram, inter alia, with the averments that a plot of land, boundaries whereof were indicated in para - 1 of the plaint, was of their possession, use & ownership alongwith a house therein. On the southern-eastern corner, the house of Bhima Ram was situated on the eastern side, the door of the plaintiffs' house opens on the eastern side, which road is 30 feet wide and 80 feet long and is quite old. The defendant No.2 Bhima Ram has dug foundation on the said road measuring 17.9 feet X 2 feet and has obstructed the way and has created nuisance, further construction material has been placed therein for which he has no legal right; the activity has been undertaken with the connivance of the Gram Panchayat and, as such, prayed for permanent and mandatory injunction. 3. A written statement was filed by the Gram Panchayat disputing the area of the plot; claiming the door of Bhima Ram's house opens on the northern side and the area being dug was of said Bhima Ram's old possession to which the Gram Panchayat has no objection and, therefore, the suit be rejected. 4. Defendant No.2 Bhima Ram also filed his written statement disputing the averments made in the plaint. It was claimed that the disputed area was of a old possession for over 50 years and he has dug foundation after leaving the public way, the plaintiffs have wrongly opened the door on the eastern side. 5. The trial court framed five issues, the material being about the existence of old public way admeasuring 30 feet X 82 feet on the eastern side of the plaintiffs' house. 5. The trial court framed five issues, the material being about the existence of old public way admeasuring 30 feet X 82 feet on the eastern side of the plaintiffs' house. After the evidence was led by the parties, the trial court came to the conclusion that the land indicated in the plaint was 1.6 feet on the north to south and 57 feet from west to east more than the lease-deed issued in favour of the plaintiff No.3 and the plaintiffs have not shown any right to keep the said excess land in possession, therefore, they are trespassers on the said excess land. The trial court also came to the conclusion that as the door of the plaintiffs' house on the eastern was situated on the encroached area and, therefore, they have failed to prove existence of door on the eastern side of their house and have consequently, also failed to prove existence of 30 feet X 82 feet public way. In view of the finding recorded on the said issue, the trial court dismissed the suit. 6. The first appellate court, came to the conclusion that the plaintiff was in possession of 6 Inch excess land and in view of the statement of DW - 1 Bhima Ram - defendant himself, wherein he had practically admitted the entire case of the plaintiff in cross-examination, the first appellate court reversed the finding of the trial court on issue No.1 and found existence of 30 feet X 82 feet old path way and the eastern door of the plaintiffs' house and, consequently, decreed the suit. 7. It was submitted by learned counsel for the appellant that the first appellate court fell in error in relying on the statement of appellant - defendant No.2 Bhima Ram and as the plaintiffs had failed to prove their case, as held by the trial court, it was not open for the first appellate court to rely on the weakness of defence and without insisting of proof from the plaintiff, the appeal has been wrongly accepted. 8. 8. Per contra, learned counsel for the respondent submitted that the admission of the defendant is the best evidence and the first appellate court was justified in accepting the appeal, the trial court had clearly committed error in not even referring to the statement of the defendant No.2 Bhima Ram and in view of the limited scope of second appeal, the same deserves to be dismissed. 9. I have considered the rival submissions and have gone through the judgment passed by both the courts below. 10. From a perusal of the judgment passed by the first appellate court, it is apparent that the appellant - defendant No.2 Bhima Ram clearly admitted in his cross-examination that there was a main gate on the eastern side of plaintiffs' house; plaintiffs' ingress-egress from the said eastern side; the way on the northern side of his house was 30 feet wide; plaintiffs' used that 30 feet wide road; the foundation was dug on the land for which he had no Patta; and he has dug foundation on public way, the first appellate court further found that the statements of DW - 1 Bhima Ram also find support from Patta (Exhibit - 3A), wherein the public way has been shown. 11. Besides the above, the appellate court also found that the said statements and documents supported the version of PW-1 Arjun Ram regarding existence of door on the eastern side and the 30 feet wide old path way and, consequently, reversed the finding on issue No.1. 12. The trial court ignoring the said material oral evidence of DW - 1 appellant Bhima Ram, recorded the finding on issue No.1, which was clearly perverse. Much importance was given by the trial court to the fact that the door on the eastern side in question was allegedly situated on trespassed land, whereas the written statement of the Gram Panchayat clearly disowned even the existence of the path-way so as to support the appellant - defendant No.2 Bhima Ram, as such the plaintiffs could not be non-suited based on the said perverse finding so as to deny the existence of door on the eastern side of their house and the path way. Besides the above, the statement of appellant - defendant No.2 Bhim Ram alongwith the documentary evidence is sufficient for coming to the conclusion about existence of door on the eastern side of plaintiffs' house and a 30 feet wide path way, which was sought to be encroached by the appellant by digging foundation on the said land. 13. Accordingly, the judgment passed by the first appellant court cannot be said to be suffering from any illegality so as to give rise to a substantial question of law in the present appeal. 14. Consequently, there is no substance in the present second appeal and the same is, therefore, dismissed. The stay application is also dismissed.Appeal Dismissed. *******