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2015 DIGILAW 3651 (ALL)

Ravikant Upadhyay v. Kailash Upadhyay

2015-11-23

PRAMOD KUMAR SRIVASTAVA

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JUDGMENT Pramod Kumar Srivastava, J. 1. Original Suit No. 106 of 2004, Ravikant Upadhyay Vs. Kailash Upadhyay and others, was filed by plaintiffs with averment that in western side of their house there lies a pathway, after which land of Sahan of the defendants-respondents situates. Plaintiff has easementary right over this disputed piece of land of pathway, the land and width of which is 3 ft. X 8 ft. Defendants are illegally trying to take forcible possession of said Gali for usurping the same. Therefore, plaintiff had filed suit for permanent injunction with relief that defendants are restrained from raising any construction or over disputed pathway (Gali) and from restraining plaintiffs from using it. 2. The defendants had filed written statement, in which they denied plaint averment and it was pleaded that ancestors of parties are the same. There had been partition between them and after that parties are living separately over the portion of property came in their share. Plaintiffs have constructed their house over whole portion of their share. Disputed piece of land is not pathway (Gali) but it is part of Sahan of defendants. Plaintiffs have their own doors for going and coming to their house. The suit of plaintiff is liable to be dismissed. 3. The trial court had framed issues, accepted evidence of the parties, heard their arguments and then Civil Judge (Senior Division), Chandauli had passed judgment dated 15.11.2011, by which original suit was decreed for the relief of permanent injunction as prayed. Against this judgment of trial court, civil appeal no. 5 of 2012, Sri Niwas Upadhyay Vs. Ravikant Upadhyay was preferred. First appellate court had afforded opportunity of hearing to parties and thereafter Additional District Judge, Court No. 1, Chandauli had passed impugned judgment dated 30.9.2015, by which appeal was allowed and judgment dated 15.11.2011 passed by trial court was set aside and original suit was dismissed. Against this judgment of first appellate court, present second appeal has been preferred. 4. Learned counsel for the appellant contended that first appellate court had erroneously relief on the judgment and findings of Executive Magistrate given in proceedings under section 133 Cr.P.C. He contended that proceedings under section 133 Cr.P.C. relates only to public way, which is not the case of disputed land. 4. Learned counsel for the appellant contended that first appellate court had erroneously relief on the judgment and findings of Executive Magistrate given in proceedings under section 133 Cr.P.C. He contended that proceedings under section 133 Cr.P.C. relates only to public way, which is not the case of disputed land. He also contended that proceedings under section 133 Cr.P.C. are of summary nature and findings of Executive Magistrate in such proceedings have no evidentiary value. Therefore, judgment of first appellate court based on findings of Executive Magistrate in case under section 133 Cr.P.C. is erroneous and is liable to be dismissed. 5. I am in agreement with this contention of appellant side that proceeding under section 133 Cr.P.C. are of summary nature and any finding of Executive Court during such proceedings have no evidentiary value in civil court. Although, first appellate court had also relied on findings of Executive Magistrate given during proceedings under section 133 Cr.P.C. but apart from it judgment of first appellate court is based on other discussions and evidences, which are mentioned in it. 6. Trial court had relied this portion of statement defendant witness DW-2 that when the property in question was partitioned at the time of their ancestors, then a Gali (pathway) was left towards north and west of the house of Ravikant. On the basis of this oral evidence, trial court had held that the portion of disputed land situated towards west of the house of plaintiff should be the pathway (Gali). This may be one interpretation, which was not accepted by first appellate court, which had meticulously distinguished the facts and interpretation available due to evidences and held that in disputed land, there is no opening of house of plaintiff, and just south of the disputed land detailed in the plaint by letters A, B, C and D, there i s a door in the western wall of the house of plaintiff, which directly opens in the pathway (Gali), which goes western side directly up to main road. This interpretation of fist appellate court that in act there is no opening or Gali towards west of the house of plaintiff-appellant towards western Sahan land of defendants-respondents appears appropriate, which is also one of the interpretation of said portion and statement of DW-2 and this interpretation appears more plausible and appropriate in view of the facts that there is no opening of door or window or ventilator towards disputed piece of land detailed in the plaint by letters A, B, C, and D. If this interpretation of first appellate court is accepted, in that case also there is Gali (pathway) towards west and north of the house of plaintiff even in absence of any pathway at the disputed place. Apart from it, it is pertinent to mention that first appellate court had specifically mentioned that disputed place is not public pathway and also noted in its judgment that Sub Divisional Magistrate had not accepted said place as public way. There is specifically finding of fact of first appellate court that disputed place is part of Sahan land of defendants. It is thus clear that the judgment of first appellate court is not based solely on the findings of Executive Court given during proceedings under section 133 Cr.P.C., but it is based on properly discussed and considered evidences adduced in the trial court. 7. The dispute between the parties is only as to whether disputed land is part of Sahan of defendants or private pathway of plaintiff and defendants. This is a matter of fact and nothing relating to point of law is involved in it. Therefore, no question of law, much less a substantial question of law arises in this matter, which is a dispute of facts that can be resolved on the basis of oral evidences. The first appellate court had properly appreciated evidences and gave finding of fact, which is apparently no unacceptable in second appeal. This Court is not expected to re-appreciated the finding of fact of lower court when it is not perverse, as it is in present case. 8. On the basis of above discussion, I am of the view that impugned judgment of first appellate court cannot be treated to be erroneous as there is nothing in it, which may be treated as grave infirmity or perversity. No substantial question of law arises in this matter. 8. On the basis of above discussion, I am of the view that impugned judgment of first appellate court cannot be treated to be erroneous as there is nothing in it, which may be treated as grave infirmity or perversity. No substantial question of law arises in this matter. None of the contentions raised by learned counsel for the appellant is acceptable. 9. For the reasons discussed above, and in absence of any substantial question of law, this second appeal is dismissed.