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2016 DIGILAW 646 (MP)

Mullo Bai v. Badri Prasad

2016-08-02

VIVEK AGARWAL

body2016
ORDER 1. This second appeal has been filed by the defendant being aggrieved by the judgment and decree dated 1.9.2008 passed by the District Judge, Guna, whereby learned District Judge has affirmed the judgment and decree dated 24.2.2006 passed by the Court of Ist Civil Judge, Class I, Guna, in Civil Suit No.14-A/2003. 2. A suit was filed by the plaintiffs/respondents in this appeal wherein it was alleged that the present appellant, defendant, was encroaching on 3 feet wide alley adjacent to the property of the plaintiffs, and therefore, relief in the form of permanent injunction was sought against the defendant not to reduce the width of the said alley from 3 feet as existed earlier. 3. Learned trial Court decreed the suit after holding that there existed 3 feet wide alley between the house of the plaintiffs and the defendant and defendant has no right to encroach on the said alley. In fact, defendant had filed a written-statement denying the existence of said alley and basically taken a defence that she is living in the said property for over 80-90 years and now plaintiffs have no right to change the use of the said alley by the defendant after such a long time. It was also submitted that in the sale-deed dated 11.6.1959 (Ex.P-1), vide which the plaintiffs had purchased the said property from one Gopal Krishna, there is no mention of such alley, and therefore, the suit is based on imaginary and non-existent grounds and a prayer was made to dismiss the suit. 4. Learned trial Court relied on Ex.P-1, which is sale deed executed by Savitri Bai wife of Gopalkrishna in favour of Laxmibai widow of Moolchand and Onkkarlal son of Moolchand. As per the map enclosed with the said sale-deed on the southern boundary of the property 3 feet wide alley is shown and after 3 feet on the south of the property house of the defendant has been shown. The defendant has also filed copy of the document vide which the house in favour of the defendant was acquired and along with the said document map is enclosed in which an alley has been shown on the north of the property of the defendant. 5. The defendant has also filed copy of the document vide which the house in favour of the defendant was acquired and along with the said document map is enclosed in which an alley has been shown on the north of the property of the defendant. 5. Learned counsel for the appellant submitted that since the alley is part and parcel of the property of the defendant, therefore, defendant has all the right to use it as per her wish and plaintiffs have no right to interfere in the peaceful possession and use of said alley in the hands of the defendant. Learned counsel for the appellant has also argued that defendant had purchased the property measuring 24 feet × 21 feet whereas the plaintiffs have not filed any description of the property which was purchased by them, and therefore, it cannot be said that the alley which exists in the north of the property of the defendant is a common passage to be used by both plaintiffs as well as defendant. Learned counsel for the appellant also submitted that learned appellate Court has wrongly dismissed the application of the appellant under Order 26 rule 9 CPC for appointing the Commissioner. In support of the contention, reliance has been placed on the decision of this Court in the case of Heeralal v. Thakur Das, as reported in 2003(3)MPHT 347, wherein it is held that in case of encroachment of land, where parties are unable to decide how much land is in possession of the parties as against the actual land, then in such cases, it is necessary to appoint a Commissioner to make the spot inspection. Same is the ratio of the judgment in the case of Haryana Waqf Board v. Shanti Sarup and others, as reported in (2008)8 SCC 671 and Legal Representatives of Manohar and others v. Vishweshwar Tukaram Giripunje and others [2008(3) Bom. C.R.166], relied by the appellant. 6. It is apparent from the measurement map which is part and parcel of the document filed by the defendant that alley has been shown in addition to the property measuring 24 feet × 21 feet as was allegedly purchased by the defendant, therefore, the contention of the defendant/appellant that alley is part and parcel of her property is not borne out from the document produced by her. 7. 7. Defendant Mullo Bai in her deposition had admitted that there is an alley after her house which is extended upto Durga Talkies. She has also admitted that the width of said alley is about 3 feet. This witness also admitted that her house is constructed in such a manner that its width is 24 feet and the length is 21 feet Babu Khan (DW2) has stated that width of alley leading to Durga Talkies is 3 feet wide. He has also admitted that 6-8 months prior Mullo Bai had constructed a shop and the width of that shop is about 3-4 feet. Thus, it is admitted from the evidence of various witnesses that the defendant had purchased the property having dimension of 24 feet length and 21 feet width and there was an alley on the north of the said property. Therefore, the contention of the defendant that the alley is her personal property has rightly not been accepted by the learned trial Court and this finding has been affirmed in first appeal. In fact, 3' wide alley exists in south of plaintiffs' property as is evident from Ex.P-1. Similarly, site map enclosed by the defendant also shows 3' wide alley on north of her property. There is no material to show that said alley is personal property of the defendant. There is no material to interfere in the concurrent findings of the Court below. 8. The ratio of the judgments cited by the appellant is that an application under Order 26 rule 9 CPC should be allowed where there is a dispute regarding actual measurement of the extent of encroachment and entitlement of each of the parties. But in the present case, ratio of these judgments will not be applicable inasmuch as there is no dispute from the documents produced by the plaintiffs as well as the defendant about the existence of 3 feet wide alley on the south of the property of the plaintiffs and north of the property of the defendant. As the existence of alley is undisputed, there was no need to appoint a Commissioner to determine the width of alley and the extent of encroachment. Accordingly, this second appeal fails and is hereby dismissed. Ms. Anjana Singh for appellant; Sanjay Sharma for respondents.