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2023 DIGILAW 1050 (RAJ)

Vishnu Kumar Lohiya v. Shivshankar

2023-05-08

MAHENDAR KUMAR GOYAL

body2023
ORDER : Mahendar Kumar Goyal, J. - This civil second appeal, which is reported to be time barred by 91 days, is accompanied with an application under Section 5 of Limitation Act. 2. For the reasons stated in the application, the same is allowed. Delay in preferring the second appeal is condoned. 3. This civil second appeal has been preferred by the appellant/defendant (for brevity, "the defendant") against the judgement and decree dated 03.03.2020 passed by learned Additional District Judge No.1, Bharatpur (for brevity, "the learned appellate Court") in Civil Regular Appeal No.4/2019 (11/2019) CIS No.11/2019 whereby, while dismissing the appeal, the judgement dated 24.12.2018 passed by learned Senior Civil Judge, Bharatpur (for brevity, "the learned trial Court") decreeing the Suit No.73/2016 for permanent injunction, has been upheld. 4. The relevant facts in brief are that the respondents/plaintiffs (for brevity, "the plaintiffs") filed a suit for permanent injunction against the defendant stating therein that they were under ownership and possession of the subject property as described in Para 1 of the plaint situated in Mohalla Mojiram, Behind Old Post Office, Bharatpur which they purchased vide registered sale deed dated 18.08.1994 from its erstwhile owner. It was averred that towards its western side, there is a public gali (lane) and thereafter, defendant's house. It was stated that towards the western lane, there exist windows/ventilation of the plaintiffs' house for last about 50 years and they have acquired an easementary right of light and air. Alleging that the defendant wanted to close their windows and ventilation raising construction of a wall abutting their western wall, the decree as aforesaid was prayed for. 5. The defendant in his written statement denied existence of any public lane in between the properties of the parties. It was stated that after removing the tin shade existing on the subject land, he has raised certain pucca construction thereon. 6. On the basis of pleadings of the parties, the learned trial Court framed four issues including relief. 7. After recording evidence of the respective parties, the learned trial Court decreed the suit vide its judgement dated 24.12.2018 and the civil first appeal preferred there against by the defendant has been dismissed by the learned appellate Court vide its judgement dated 03.03.2020. 8. 7. After recording evidence of the respective parties, the learned trial Court decreed the suit vide its judgement dated 24.12.2018 and the civil first appeal preferred there against by the defendant has been dismissed by the learned appellate Court vide its judgement dated 03.03.2020. 8. Assailing the impugned judgement and decree dated 03.03.2020, learned counsel for the appellant would submit that the learned Courts erred in not framing the issue with regard to easementary right of the plaintiffs despite specific averment in this regard in the plaint and its denial by him. He submits that the learned Courts erred in relying upon the Commissioner Report, Ex. A1 which did not reveal existence of any window/ventilation in the western wall of plaintiffs' house. Inviting attention of this Court towards the cross-examination of Shivshankar (PW1), learned counsel submits that he has admitted therein existence of "Charpeta" (abutting wall) of the defendant's house towards the western side of the subject property. Lastly, learned counsel submits that the learned Courts have failed to appreciate that from the Ex. A1 and Ex. A2, he was able to establish non-existence of the public lane towards the western side of the plaintiffs' property. He, therefore, prays that the civil second appeal be allowed, the judgement and decree dated 03.03.2020 be quashed and set aside and the suit filed by the plaintiffs be dismissed. 9. Heard. Considered. 10. While deciding the issues no.1 and 2 pertaining to existence of windows and ventilation in the western wall of plaintiffs' house through which they are getting light and air for last about 50 years and entitlement of the plaintiffs to get a decree of permanent injunction, the learned trial Court has, after appreciating the oral as well as documentary evidence on record, recorded a categorical finding that there exist windows/ventilation in the western wall of the residential house of the plaintiffs for last about 50 years through which they were getting light and air. In this regard, the cross-examination of the defendant-Vishnu Lohiya (DW1) is very relevant wherein, he has admitted that the plaintiffs have purchased the subject property comprising of a two storeyed residential house from Shri Laxmi Narayan Jain and from his childhood, he has seen the property as it is. In this regard, the cross-examination of the defendant-Vishnu Lohiya (DW1) is very relevant wherein, he has admitted that the plaintiffs have purchased the subject property comprising of a two storeyed residential house from Shri Laxmi Narayan Jain and from his childhood, he has seen the property as it is. Referring to the Site Commissioner Report (Ex.A1) which reflected existence of windows and ventilation in the western wall of the plaintiffs' house, it has been held that there exist windows and ventilation in the western wall of the plaintiffs' residential house which were attempted to be closed by the defendant recently. These findings have been upheld and affirmed by the learned appellate Court while re-appreciating the evidence on record. 11. Submission of the learned counsel for the appellant that the learned Courts erred in not framing an issue with regard to the easementary right, does not merit acceptance inasmuch as it is implicit in the issue no.1 which has been referred hereinabove.. Even otherwise also, it was specific case of the plaintiffs that subject windows/ventilation are existing for last about 50 years through which he is enjoying the light and air which was denied by the defendant and parties have led their evidence on this aspect. In these circumstances, non-framing of an issue with regard to the easementary right is not fatal for the plaintiffs' case. Moreover, learned counsel for the defendant could not satisfy this Court as to any prejudice caused to him on account of non-framing of such an issue. 12. Insofar as submission of learned counsel for the defendant with regard to the wrong appreciation of the Commissioner Report (Ex. A1) or non-consideration of his documents (Ex. A1 and Ex. A2), is concerned, the same is wholly misconceived. The Commissioner Report, as already observed, clearly reveals existence of windows/ventilation in the western wall of the plaintiffs' property and the learned trial Court as also the learned appellate Court have decided the issues no.1 and 2 against the defendant after appreciating and considering the Ex. A1 and A2 produced by him. 13. Since, the concurrent finding of facts recorded by the learned Courts has not been shown to be suffering from any illegality, infirmity or perversity, in the considered opinion of this Court, the learned Courts did not err in decreeing the suit filed by the plaintiffs for permanent injunction. 14. A1 and A2 produced by him. 13. Since, the concurrent finding of facts recorded by the learned Courts has not been shown to be suffering from any illegality, infirmity or perversity, in the considered opinion of this Court, the learned Courts did not err in decreeing the suit filed by the plaintiffs for permanent injunction. 14. Accordingly, this civil second appeal is dismissed being devoid of any substantial question of law.