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Madhya Pradesh High Court · body

2016 DIGILAW 554 (MP)

Shiv Charan v. Dhool Singh

2016-07-13

ANAND PATHAK

body2016
JUDGMENT 1. Heard on admission. 2. The present appeal under section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellants being aggrieved by the judgment and decree dated 6.9.2006 passed by learned Additional District Judge, Chachoda District Guna in Civil Appeal No.9-A/2006 confirming the judgment and decree dated 24.1.2006 passed in Civil Suit No.131/2001 by learned Civil Judge Class-II, Chachoda. 3. This is the appeal by defendants. The plaintiff has filed a suit for opening the way and for injunction against the defendants. The allegation of plaintiff is that the way/passage; which he has been using for past 100 years, has been obstructed by the defendants while this is the only way for access to his agriculture field. Both the parties led their respective evidence in support of their claim. On the basis of material available on record and the evidence produced by the parties, the trial Court has decreed the suit of the plaintiff granting him the access way of 8 ft. to his agriculture field. 4. The defendants/appellants preferred the first appeal but met with similar fate. 5. The defendant/appellant tried to make a dent over the findings of the trial Court as well as appellate Court by contending that the judgment and decree passed by the trial Court confirmed by the appellate Court deserve to be set aside because the Courts below have not appreciated the evidence available on record. The appellant mainly harped over the submission that in the case in hand, the trial Court should have appointed the commissioner under the provisions of Order XXVI of CPC to get the demarcation done. By not doing so, learned Courts below have caused the illegality and perversity. 6. Plaintiff/respondent No.1 denied the contentions of the appellant. 7. Heard the parties with consent and with their assistance perused the record. 8. The trial Court in its judgment dated 24.1.2006 has categorically held by appreciating the evidence led by the plaintiff that the plaintiff is owner of survey No.141 ward No.7 and defendants (present appellants) have constructed the platforms in front of their houses causing obstruction in the thorough fare. The trial Court has given categoric finding that the defendants are not owner or title holder of the said platforms nor they have produced any document or any property tax receipt which could have established the claim of the defendants over the said platforms. The trial Court has given categoric finding that the defendants are not owner or title holder of the said platforms nor they have produced any document or any property tax receipt which could have established the claim of the defendants over the said platforms. Earlier, the part of platforms had been demolished by the Municipal Council which further establishes the fact of encroachment. Paras 11 to 15 of the trial Court judgment deals in respect of alleged right and title of the present appellants. Similarly, the trial Court has also found that the defendants/appellants are causing obstruction to the plaintiff while he is moving from his survey No.141. 9. The trial Court has decreed the suit and rejected the counter claim filed by the present appellants/defendants. The rejection of the counter claim itself is indication of the fact that despite having all the opportunities available to the defendants to lead evidence in respect of their claims, the appellants could not be able to establish their claim over the land over which the platforms were constructed. 10. At the appellate stage, the appellants/defendants again tried to assert while contending their submission. The appellate Court found the claim of the defendants as nugatory also on the basis of rejection of claim of the present appellants/defendants in the Court of Tahsildar wherein the claim/suit of the present appellants had been dismissed and it was found that the appellants had no document available to justify their claim. Parass 17 to 23 of the appellate Court judgment deals elaborately about appreciation of findings given by the trial Court. Even the counter claim filed by the appellants has been dismissed. 11. The reliance which has been placed by learned counsel for the appellants over the judgment rendered in the matter of Haryana Waqf Board v. Shanti Sarup and others [ (2008)8 SCC 671 ], is of no help because the said judgment deals in respect of Order XXVI rule 9 of CPC, commission for making local investigation when the controversy between the parties was regarding demarcation of the land. Here, from the evidence and pleadings, it is clear case of unauthorized and illegal construction of the platforms and is a case of attempt to obstruct the public way. Here, from the evidence and pleadings, it is clear case of unauthorized and illegal construction of the platforms and is a case of attempt to obstruct the public way. Once the facts were not in dispute in respect of status of the property, therefore, the said judgment passed by the Hon'ble Supreme Court is not of much help to the appellants in the present facts and circumstances of the case. Similarly, the appellants' counsel has also relied upon the judgment rendered by this Court in the matter of Jaswant v. Deen Dayal [2012(2) MPLJ 576]. Here, the dispute about demarcation of the property in question was raised. The said case deals in the situation where the property in question was to be decided because both the parties were claiming ownership right on the said property. Here, in the present case, the dispute regarding ownership of the property is not existing and the question of right of way/easementary right was decided. Therefore, the case differs factually. Counsel for the appellants further relied the judgment dated 5.5.2016 passed in Second Appeal No.291/2013 (Musab Khan v. Latif Khan and another) wherein this Court has remanded the matter for a fresh adjudication and for obtaining fresh revenue report in respect of survey numbers which were the matter in dispute for settling the controversy. There also, the facts of that case differ vis-a-vis facts of the present case. In the said case, the issue of demarcation was existing. Here, in the present case, specific finding in respect of the appellants property were given and on the basis of some revenue record proceedings, the factum of encroachment was asserted against the the appellants. Therefore, the judgment cited by appellants are not of any relief for them. Thus, the said judgments are distinguishable on facts. 12. In view of the aforesaid discussions as well as conclusions drawn and keeping in view the concurrent findings of fact given by the Courts below and the scope of interference under section 100 of CPC, this Court does not find involvement of any substantial question of law in this appeal. Thus, being bereft of merit, the appeal fails and is hereby dismissed.