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2021 DIGILAW 1210 (RAJ)

Kaluram v. Dinesh Kumar

2021-07-26

ARUN BHANSALI

body2021
JUDGMENT This second appeal under Section 100 CPC is directed against the judgment & decree dated 19.01.2021 passed by the Additional District Judge, Pindwara, District Sirohi, whereby the appeal filed by the appellant against the judgment & decree dated 08.02.2018 passed by the Civil Judge, Pindwara, District Sirohi has been rejected and the decree for permanent and mandatory injunction passed by the trial court has been upheld. The suit was filed by Dinesh Kumar against the appellant- defendant, inter-alia, with the averments that the plaintiff's house was situated at Village Jhadoli, the boundaries of the house were indicated in the plaint. It was averred that the plaintiff has purchased the land from Jaisa Ram S/o Galbaji by a registered sale deed dated 06.04.1993. It was claimed that the only way for coming on the said plot was from the public lane situated on Western side of the plot. Alongwith the suit, a map was produced, wherein the disputed public way was indicated as B.P.G.H. and the width of the lane was indicated as 13ft. It was claimed that the lane was in existence for long time and is being used by him as and when required. The defendant, without any right, has constructed a toilet ad measuring 6' x 4' on the said lane, has placed bricks and firewood in the lane and after putting up a stove started cooking food both the times in the said lane. The averments were made regarding inconvenience being suffered by the plaintiff on account of blocking of the said lane and it was prayed that the directions be given for removal of the toilet, bricks, firewood, stove & other material and lane be put in condition as before the encroachment was made and by way of permanent injunction, the defendant be restrained from repeating the same. Written statement was filed by the defendant disputing the boundaries and claiming that the lane was not a public lane but is meant for use by the defendant only. It was indicated that there is a gate on the Northern side of the plaintiff's plot where there is a gate, which is being used by him, the lane has not been used by him at any point of time, the same is that of ownership of the defendant in which the plaintiff cannot be permitted to interfere. It was indicated that there is a gate on the Northern side of the plaintiff's plot where there is a gate, which is being used by him, the lane has not been used by him at any point of time, the same is that of ownership of the defendant in which the plaintiff cannot be permitted to interfere. It was also claimed that the Gram Panchayat was a necessary party, which has not been impleaded and therefore, the suit was not maintainable. Based on the pleadings of the parties, the trial court framed five issues. On behalf of the plaintiff, two witnesses were produced and eight documents were exhibited. On behalf of the defendant, he himself was examined and four documents were exhibited. After hearing the parties, the trial court came to the conclusion that the lane in question was a public way, the defendant has encroached on the said lane by raising construction and put up bricks and stove. The Gram Panchayat was not a necessary party and that the defendant was not entitled for special cost. Based on the findings on all the issues, the suit was decreed and the defendant was directed to remove the construction, bricks, stove etc. and restore back the lane to its previous status and not to obstruct the lane in future. Feeling aggrieved, the appellant filed first appeal. The First Appellate Court by its judgment came to the similar conclusions as drawn by the trial court and consequently dismissed the appeal. Learned counsel for the appellant-defendant made submissions that the two courts below was not justified in decreeing the suit/dismissing the appeal. Submissions were made that the burden about existence of the lane was that of the plaintiff and the two courts below could not have relied on the statement of the defendant in this regard. Further submissions were made that merely because the predecessor in title of the plaintiff was using the so-called lane, cannot confer any right on the plaintiff, inasmuch as, the plaintiff's case was not based on easement and in case, he was to claim any easement, admittedly, he had an alternative way for reaching to his residence and therefore, in those circumstances, the findings recorded by the two courts below are not justified. Further submissions have been made that the Gram Panchayat was a necessary party to the suit, in whose absence, the suit could not have been decided. However, both the courts below have wrongly reached to the conclusion that the Gram Panchayat was not a necessary party and therefore, the said aspects give rise to substantial questions of law. Learned counsel appearing on caveat vehemently opposed the submissions. It was submitted that though the defendant has claimed the lane as that of his ownership, the said aspect is factually incorrect in view of the defendant's patta, which clearly denotes the disputed lane and therefore, neither the defendant was required to seek easemantory rights nor the defendant could claim the same as belonging to him. The defendant is not entitled to remain in possession of a public lane by raising illegal construction and blocking the same and therefore, as the two courts below have recorded the findings of fact, the same do not give rise to any substantial question of law and therefore, the appeal deserves to be dismissed. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. The foundational document in the matter is the sale deed executed by Gram Panchayat, Jhadoli in favour of defendant Kalu (Ex.3), which indicates the boundaries and neighbourhood, wherein on East - 3ft. lane; on West - a road; on South - public way, has been indicated and on the Northern side plot of Amra S/o Jaisa has been indicated. The said sale deed (patta) clearly indicates that on three sides of the plaintiff's plot are a lane ( xyh ), way ( jkLrk ) and public way ( vke jkLrk ). Once, the said patta indicates lane/way/public road, by whatever name called on three sides of the plot and it is not the case of the appellant that the disputed lane was allotted to him at any time after the patta was issued, the claim made by him regarding ownership of the said lane is ex-facie false and baseless. Merely because, the defendant somehow was able to raise construction of toilet, put bricks, firewood & stove and started cooking food therein, he cannot claim any title over the lane in question. Merely because, the defendant somehow was able to raise construction of toilet, put bricks, firewood & stove and started cooking food therein, he cannot claim any title over the lane in question. Besides the above, in the cross-examination, the defendant clearly admitted that the predecessor of the plaintiff i.e. Amra and his father used the said lane. In view of the document i.e. patta (Ex.-3) of the defendant and his specific admission regarding use of lane by plaintiff's predecessor for ingress and egress to their house, clearly reflects that the lane exists and in absence of any material to show defendant's ownership of the said lane, the entire claim and action of the defendant in raising construction and obstructing the said lane leading to the plaintiff's house was clearly illegal and unauthorized. Submissions made regarding the fact that the defendant's statement could not have been relied on for the purpose and that the plaintiff has an alternative way to his house are of no consequence, inasmuch as, once it is found that the lane exists and the defendant has no right over the said lane, merely because the plaintiff has an alternative way to his house cannot arm the defendant-appellant to encroach over the lane. So far as the plea regarding the Gram Panchayat being a necessary party is concerned, once the patta of the plaintiff and defendant both are not in dispute, the presence of Gram Panchayat was not at all necessary and as such, the plea raised in this regard also has no substance. In view of the above, the concurrent findings recorded by the two courts below regarding existence of the way and the defendant having no right to encroach over the same, qua which learned counsel for the appellant failed to point out any perversity, the same do not give rise to any substantial question of law. In view of the above discussion, there is no substance in the second appeal, the same is, therefore, dismissed.