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2015 DIGILAW 340 (RAJ)

Chothmal v. Banshidhar Purohit

2015-02-05

NISHA GUPTA

body2015
JUDGMENT 1. - This second appeal under Section 100 CPC has been filed against the judgment and decree dated 16.12.93 passed by Additional Civil Judge No.1, Jaipur City, Jaipur in Civil Appeal No. 11/85 (5/85) (16/91) confirming the judgment and decree dated 18.3.85 passed by Munsiff and Judicial Magistrate, Chomu in Civil Suit No. 46/81. 2. The short facts of the case are that the appellant filed a suit for permanent injunction with the contention that the appellant is the owner of property shown green colour in the map annexed with the plaint and the respondent is the owner of the property shown in orange colour. In between the house of the appellant and respondent, there is a lane of 3 ft. The defendant respondent has made encroachment in the lane and has reduced it to 2.5 ft. and the disputed land has been marked 'XY' in the plan. The lane is existing from a long time and is being used by the appellant. The plaintiff's kitchen window has opening on the disputed land. The defendant wanted to close the window of the kitchen of the plaintiff by putting a chappar in front of them on which the plaintiff moved before the Gram Panchayat and defendant was restrained vide order dated 28.6.80. In spite of this order, the respondent is going to encroach the lane, hence a suit for injunction has been filed. The respondent has contended in his written statement that no lane is existed in between the house of the appellant and the respondent. The trial court dismissed the suit and the appeal has also been dismissed, hence this appeal. 3. The contention of the appellant is that the findings of the two courts below are erroneous. It is the case of mis appreciation of the evidence. The court below has not considered the map Ex. 5 issued by the Gram Panchayat and the evidence of Murlidhar who is a Sarpanch of the village and is an independent witness and furthermore, it has been stated that when window of the appellant is opened no restriction be put to fix iron bars in the window. The respondent has encroached on the Government land.Per contra, the contention of the respondent was that there is no infirmity in the judgments of the courts below. There is no lane between the two properties. The respondent has encroached on the Government land.Per contra, the contention of the respondent was that there is no infirmity in the judgments of the courts below. There is no lane between the two properties. Earlier in 1965 a dispute arose between the parties and the plaintiff appellant has been restrained from opening the window and he has been restrained from putting iron bars on the window on 7.3.65. Ex.5 has no sanctity as it has not been prepared in any proceeding of the Panchayat. The appeal has been admitted on 30.1.2006 on the following substantial questions of law: Whether the finding of the two Courts below with regard to lane can be said to be incorrect in view of Ex.5 and in view of defendant's witnesses themselves ? Whether the appellant can be restrained from putting window panels in his own property ? Whether the appellant cannot restrain the respondent from raising constructions when the respondent is not the owner of the property ? 4. Heard the learned counsel for the parties and perused the judgments and decree under appeal as well as the original record of the case. 5. The contention of the appellant is that documentery as well as oral evidence clearly established that the lane exists between the property of plaintiff and defendant. The appellant cannot be restrained from putting window bars in his own property and respondents should be restrained from raising construction over the land. Contention of the respondent was that both the courts below have rightly held that there is no lane between the two properties. 6. Ex.5 map has been submitted but it has not been shown that what was the occasion with the Gram Panchayat to prepare Ex.5. To support Ex.5 no such proceedings have been submitted in which Ex.5 has been prepared. Ex.5 is only a Najari Naksha and cannot be relied until the proceedings in which it has been prepared has not been submitted. Only in the light of attending proceedings, the Ex.5 could be considered. To support Ex.5 no such proceedings have been submitted in which Ex.5 has been prepared. Ex.5 is only a Najari Naksha and cannot be relied until the proceedings in which it has been prepared has not been submitted. Only in the light of attending proceedings, the Ex.5 could be considered. The contention of the appellant is that when respondent tried to put Chappar on the disputed property, he move before the Gram Panchayat by application Ex.4 and in the proceedings Ex.5 has been prepared but it is not correct on the face of it as Ex.4 has been submitted on 30.6.1980 whereas Ex.5 has been prepared on 9.8.70, hence there is no co-relation between the proceedings started on Ex.4 and Ex.5. Much stress has been given on the statements of PW/4 Murlidhar who had been the Sarpanch of Gram Panchayat, Dhadhulia. He has tried to support Ex.5 but Ex.5 has not been drawn by him and no record has been submitted to support Ex. 5, hence Ex.5 has rightly not been relied by the courts below in isolation and other evidence of the respondent clearly says that there is no lane existed between the two houses and on 7.3.1965, the appellant has been restrained from putting iron rods on the window and a specific order has been passed by the Gram Panchayat but no such order has been submitted by the appellant, hence presumption should have been raised against the appellant that order dated 7.3.65 is against the plaintiff. It has also been brought on record that earlier there was no opening of the window towards the disputed land and only one window has been opened which was restrained by the Gram Panchayat. Apart from it, there is no other opening of the plaintiff's house towards this lane. Had there been a lane between the two houses, the plaintiff's ventilators, windows etc. should have been opening towards this lane. The natural water also does not fall towards the side of the lane. All these facts have been considered by the courts below, hence only on the strength of Ex. 5 it cannot be said that the findings of the courts below is per verse when the sanctity of Ex.5 is doubtful. 7. should have been opening towards this lane. The natural water also does not fall towards the side of the lane. All these facts have been considered by the courts below, hence only on the strength of Ex. 5 it cannot be said that the findings of the courts below is per verse when the sanctity of Ex.5 is doubtful. 7. The other fact is also pertinent to note that the contention of the plaintiff appellant is that it is a public lane, but State Government has not been made party whose presence is essential for effective decision of the controversy. The suit has not been filed in proper manner and not maintainable as such. 8. The contention of the appellant is that when window of his kitchen is already opened towards the disputed land, he could not be restrained from putting panels and the respondent should be restrained from raising any construction. When the appellant could not shown any right, title or interest on the disputed property, the respondents could not be restrained from raising any construction as existence of lane has not been established by the plaintiff and it has categorically came on record that the appellant has been restrained from putting iron rods on the window on 7.3.65 and illegally the window has been opened, hence in view of the concurrent findings of both the courts below which is based on right appreciation of evidence, documentary and oral, no perversity could be shown by the counsel for the appellant. There is no reason to interfere in the findings and conclusion of the courts below and the substantial questions are answered against the appellant. The appeal is liable to be dismissed.The appeal is accordingly dismissed.Appeal Dismissed. *******