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2014 DIGILAW 2770 (ALL)

Ganga Devi v. Brij Kishore Dubey

2014-09-08

DINESH GUPTA

body2014
JUDGMENT Dinesh Gupta,J. This second appeal is preferred against the judgement dated 22.2.1999 passed by 5th Additional Civil Judge (Senior Division), Agra in Civil Appeal No.419 of 1998 arising out of judgement dated 24.11.1998 passed by Additional Civil Judge (J.D.) in Original Suit No.505 of 1997. 2. The brief facts, which give rise to this appeal are that the plaintiff-appellant (hereinafter called as the "appellant") filed a Suit No.505 of 1997 against the defendants-respondents (hereinafter called as the "respondents") for the relief of permanent prohibitory injunction. 3. The defendants-respondents also filed counter claim in the said suit. The trial court decreed the suit of the appellant and dismissed the counter claim filed by the defendants-respondents and restrained the respondents from opening any spout drain, window or door towards land shown as Letter No.A,B,C & D and from restraining them from causing any interference in appellant's ingress. 4. Feeling aggrieved, the respondents preferred Civil Appeal No.419 of 1998, which was transferred to the court of 5th Additional Civil Judge, Agra, who allowed the appeal vide its order dated 22.2.1999 and dismissed the suit of the appellant and decreed the counter claim filed by the respondents and appellant was directed to removed the pillars from the disputed land and also to remove iron pillar and iron gate and also clear the disputed lane so as to both parties can use the lane properly. 5. The appellant was further directed that in case the respondents tried to open any spout drain, window or door towards south, then the appellant will not cause any interference. 6. Feeling aggrieved, the appellant preferred this second appeal before this Hon'ble Court. 7. While admitting the appeal, this Court framed substantial question of law, which is as under: "whether the first appellate court has erred in interpreting the sale-deed dated 13.6.1986 in favour of the appellant ?" 8. Notices issued to the respondents and the lower court record was also requisitioned. 9. Heard Shri Ashish Gupta, learned counsel for the appellant and Shri Santosh Kumar, learned counsel for the respondents. 10. Learned counsel for the appellant submitted that from the sale-deed, it was fully established that the entry and exit of the respondents from the house was shown in the southern boundary of the sale-deed and thereafter 6 ft. wide lane was shown meaning thereby that the respondents had no right or title over the disputed 6 ft. 10. Learned counsel for the appellant submitted that from the sale-deed, it was fully established that the entry and exit of the respondents from the house was shown in the southern boundary of the sale-deed and thereafter 6 ft. wide lane was shown meaning thereby that the respondents had no right or title over the disputed 6 ft. wide lane. 11. The court below was not justified and wrongly set aside the judgement of the trial court in which it was specifically held that the appellant was owner over the property of 6 ft. lane. 12. Learned counsel for the appellant further submitted that the appellate court has wrongly interpreted the boundaries given in the sale-deed dated 13.6.1986 executed in favour of the appellant. 13. Learned counsel for the appellant drew my attention towards the sale-deed in question and submitted that in the sale-deed, the boundaries are given as under: East West North South Property of other persons. Entry of the property and 6 ft. wide rasta as well as property of Smt. Lakshmi Devi. Property of other persons. Property of Khadag Singh. 14. This property was purchased by one Subhash Chandra and Chandrabhan through a sale-deed from Smt. Chandra Kanta Baghel vide a sale-deeds dated 19.12.1984 and 16.3.1985. 15. The property shown towards west belongs to Lakshmi Devi, who also purchased the property from Smt. Chandra Kanta Baghel vide a sale-deeds dated 19.12.1984 and 16.3.1985, and thereafter, she transferred the land to Smt. Pushpa Devi wife of Shri Braj Kishore. 16. In the said sale-deed the boundaries are also shown as under: East West North South House of Smt. Ganga Devi. House of Shri Awanish Kumar Jaiswal. House belonging to Sirauli Wale. Entry of property in question 6 ft. wide. 17. Learned counsel for the appellant further submitted that the appellate court has wrongly interpreted the boundaries in both the sale-deeds. 18. Thus, the matter requires reconsideration and scrutiny. 19. Learned counsel for the respondents submitted that the property purchased by the appellant and respondents were from the same seller, who transferred the same and ultimately the property came in the possession of the respondents as well as appellant. 20. On a careful consideration of both the sale-deeds, it is clear that the appellate court has taken right view and has not committed any illegality or any irregularity in the sale-deeds in favour of the parties. 21. 20. On a careful consideration of both the sale-deeds, it is clear that the appellate court has taken right view and has not committed any illegality or any irregularity in the sale-deeds in favour of the parties. 21. The findings based on appreciations of documentary evidence (sale-deed) and requires no reconsideration and the appeal is liable to be dismissed. 22. Learned counsel further submitted that the predecessor of the appellant and respondents Smt. Chandra Kanta Baghel transferred the property in favour of Subhash Chandra and Chandrabhan vide a sale-deed dated 19.12.1984 is also on record in which it is clearly mentioned that the boundaries as under: East West North South Property of other persons. Property of Smt. Lakshmi Devi to whom it is sold now today itself and 6 ft. wide lane, which remains part of the property. Property of other persons. Property of Khadag Singh. 23. Learned counsel further submitted that Subhash Chandra also sell the property, which he purchased through a sale deed dated 19.12.1984 alongwith one Chandra Bhan, the boundaries given as under: East West North South Property of other persons. Property of Smt. Lakshmi Devi and 6 ft. wide lane and entry in existence. Property of other persons. Property of Khadag Singh. 24. Learned counsel further submitted that from a bare perusal of all the sale-deeds available on record, it is clear that the property in question alongwith other property belongs to one person, who transferred the same to different people on different dates, and thus, the respondents and the appellant both acquired the property from the common seller and their rights are properly described in the sale-deed and they cannot acquire any other rights except provided in the sale-deeds. 25. I am unable to accept the contentions raised by the learned counsel for the appellant. 26. The appellate court has rightly held that the property acquired by the appellant as well as respondents is from the common seller and in the boundaries given in all the sale-deeds, if considered cumulatively, it is clear that the appellate court has not committed any illegality or irregularity in interpreting the sale-deed in question i.e. sale-deed dated 13.6.1986. 27. The finding recorded by the appellate court is on the basis of all the sale-deeds available on record and no other interpretation can be presumed other than taken by the appellate court. 28. 27. The finding recorded by the appellate court is on the basis of all the sale-deeds available on record and no other interpretation can be presumed other than taken by the appellate court. 28. Since the finding recorded by the appellate court is based on perusal of all the sale-deeds in question, and therefore, it is not necessary to again repeat the same. 29. The interpretation recorded by the appellate court is fully correct and no interference is required. 30. The appeal is liable to be dismissed. 31. The substantial question of law involved in this appeal, answered accordingly.