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2023 DIGILAW 667 (UTT)

Vidhya Devi v. Sher Bahadur Thapa

2023-12-08

VIVEK BHARTI SHARMA

body2023
JUDGMENT : Present second appeal is filed against the judgment and decree dated 22.01.2011 passed by Additional District Judge/VI F.T.C. Dehradun in Civil Appeal No.57 of 2006 “Sultan Singh vs. Sher Bahadur Thapa and another”, whereby the judgment and decree dated 24.05.2006 passed by 2nd Additional Civil Judge (J.D.), Dehradun dismissing the suit of the appellant/plaintiff, has been upheld. 2. In brief, facts of the case are that the plaintiff Sultan Singh (predecessors-in-interest of the appellants) filed a suit seeking a decree of declaration against the respondents/defendants, thereby praying that the wall raised by respondents/defendants be demolished. In the plaint, it was stated by the plaintiff that he is the owner in possession of Property No.74, Gandhi Nagar, Ballupur Road, Dehradun; that, in eastern side of the suit property, at one part there is a road (Street No.3, Rajendra Nagar) and in another part there situates property of defendant no.1; that, in the northern side of the suit property, the property of respondent no.2/defendant no.2 is situated; that, the plaintiff is residing in the house since 1979 while the respondents/defendants constructed their houses in the year 1982-83 and1995, respectively and started residing there since then; that, the plaintiffs are using the road situated towards eastern side of their house from the very inception; that the defendants are relatives and since the date the respondent no.2/defendant has constructed the house the respondents/defendants are obstructing in using the said road; that, all the roads of Rajendra Nagar Colony are public road and are maintained by Nagar Palika Parishad, Dehradun; that, in the year 1995 and 1997 the same dispute had arisen wherefor the plaintiff had made a complaint to S.D.M. Dehradun, however, it was amicably settled at that time; that, thereafter again the defendants raised dispute regarding use of public road by the plaintiff whereupon the plaintiff again made a complaint to S.D.M., Dehradun on which an enquiry was conducted and it was found that the respondents/defendants have constructed a wall in front of the suit property and are trying to obstruct way of plaintiff whereafter the S.D.M. Dehradun directed the respondents/defendants not to raise any construction at the spot; that, even after that on 9/10.9.1998 the respondents/defendants raised a wall of 5 ft. height and obstructed the use of public path without any authority of law. 3. height and obstructed the use of public path without any authority of law. 3. The respondents/defendants contested the suit and filed a joint written statement denying the plaint averments. In the written statement, they specifically denied existence of any public road in the east side of the property of the plaintiff and stated that the plaintiffs have no right to go through the defendants’ property which is about 10 ft. above his property. In additional plea, in para 24 they pleaded that due to geographical conditions there is a difference of height in the properties of the plaintiff and defendants; that, there exists Pusta of defendants in the east side of the suit property and that there is no road i.e. Street No.3 Rajendra Nagar touching any of the boundary of the property of the plaintiff. 4. On the basis of pleadings of the parties, the trial court framed the following issues:- (i) Whether the plaintiff’s suit is undervalued? (ii) Whether the court fees paid is insufficient? (iii) Whether the plaintiff has a right to use the road in dispute? (iv) Whether the defendants have raised any construction in the portion of the plaintiff or on the road in dispute thereby obstructing the way of the plaintiff? (v) Whether the plaintiff has a right to get the construction demolished as raised by the defendants? (vi) Whether at the east side of the property of the plaintiff there exists disputed road at the spot? (vii) Whether the suit is barred by principles of promissory estoppel? (viii) Whether the site plan attached with the plaint is defective? (ix) Whether the suit is bad for not making Nagar Palika Parishad as party to the suit? (x) Whether the plaintiff is entitled to get the relief, if any ? 5. Thereafter, both the parties led their evidence. In support of his plaint, the plaintiff got examined himself as PW1 Sultan Singh and also got examined PW2 Shyam Singh and PW3 Jaspal Singh Rana while the defendant got examined DW1 Sher Bahadur Thapa and DW2 Tilak Singh. Besides oral evidence, the plaintiff also filed documentary evidence. The respondents/defendants did not file any documentary evidence in the court. 6. After hearing the learned counsel for the parties and on perusal of evidence, the trial court vide judgment/decree dated 24.05.2006 dismissed the suit of the plaintiff. Besides oral evidence, the plaintiff also filed documentary evidence. The respondents/defendants did not file any documentary evidence in the court. 6. After hearing the learned counsel for the parties and on perusal of evidence, the trial court vide judgment/decree dated 24.05.2006 dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiff filed Civil Appeal No.57 of 2006 in the court of District Judge, Dehradun. During the pendency of first appeal, sole plaintiff Sultan Singh died whereafter his legal heirs (appellants herein) were substituted in the appeal. Additional District Judge/FTC VI Dehradun, vide judgment/decree dated 22.01.2011, concurred with the findings recorded by the trial court and dismissed the first appeal. Hence, this second appeal. 7. This second appeal came to be admitted by the order dated 07.09.2017 on the following substantial question of law:- “Whether the plaintiffs/appellants have right to use the public road situated towards of their house, which was constructed by the colonizer for the purpose of Rajendra Nagar Colony and the courts below have committed illegality in dismissing the suit of the plaintiffs/appellants?” 8. Heard learned counsel for the parties and perused the entire record. 9. Learned counsel for the appellants/plaintiffs would submit that the Trial Court as well as the First Appellate Court has erred in not appreciating the evidence on record properly and dismissing the suit of the appellants/plaintiffs. He would further submit that the appellants/plaintiffs are the resident of Gandhinagar, where they settled in the year 1979; thereafter, the Rajendra Nagar Colony in the East of the Gandhi Nagar colony was carved out by the Colonizer; that, the house of the appellants/plaintiffs is at the boundary of the Gandhi Nagar from where the Rajendra Nagar colony starts; that, the Rajendra Nagar colony, being the mountainous area, is at a elevated level whereas the Gandhi Nagar Colony is 8 to 10 feet below the ground level of the Rajendra Nagar i.e. where the road in question is situated. 10. He would further submit that there is a road in the Rajendra Nagar Colony which ends at a point in the East side of the house of the appellants/plaintiffs; however, as there is a drop of 10 feet thereafter, that road ends there. He would further submit that this road was constructed by the private colonizers and thereafter it was maintained by the Nagarpalika (now the Nagar Nigam Dehradun). He would further submit that this road was constructed by the private colonizers and thereafter it was maintained by the Nagarpalika (now the Nagar Nigam Dehradun). He would further submit that after constructing the ground floor of his house the roof of his house is just opposite to the road of Rajendra Nagar colony in question, which ends at that point; therefore, the appellants/plaintiffs have a right to way for this road as this is a public road. 11. Per contra, learned Senior Counsel appearing for the respondents/defendants would support the judgments of the courts below and would submit that there is concurrent finding of facts recorded by the Trial Court and the First Appellate Court which should not be interfered with by this Court in the Second Appeal. 12. In order to decide the substantial question of law framed by this Court, findings recorded by the trial court on issue nos.3 and 6 would have to be looked into. These issues have been decided against the plaintiff and while doing so the Trial Court has recorded the finding that the plaintiff has not adduced any evidence so as to show that he is using the disputed road. On the basis of evidence, the Trial Court held that the plaintiff has a way from Gandhi Nagar for which he has also fixed his gate in the western side of his property. In this regard, the Trial Court also relied upon the report and statement of Advocate Commissioner PW3 Jaspal Singh Rana which indicates that there is a Pusta between the property of plaintiff and defendants and that the plaintiff has a way from Gandhinagar road and he has also fixed a gate thereupon. It was also observed by the Trial Court that burden was upon the plaintiff to prove issue nos.3 and 6, however, neither he has filed any objection to the report of Advocate Commissioner nor has filed any evidence so as to prove that there exists a road in the east of the suit property and that he has a right to use it. Thus, both the issue nos.3 and 6 have been decided against the plaintiff/ appellant. 13. Thus, both the issue nos.3 and 6 have been decided against the plaintiff/ appellant. 13. The Trial Court recorded the findings thereby dismissing the suit of the appellants/plaintiffs holding that the appellants/plaintiffs does not have any right to way as the road was constructed by a colonizer and ends in the East side of the appellants/plaintiffs’ house. Besides, as per the statement of the appellants/plaintiffs themselves, they have got gate of their house on the West side and not in the East side and that would be extremely ridiculous that a person uses the right to way to the road not from the main gate, but from the roof of his house as the level of the road which ends to his house is at the level of his roof. 14. The First Appellate Court in the same manner dismissed the appeal and upheld the decision of the trial court dated 24-05-2006. While upholding the decision of the Trial Court, the First Appellate Court recorded its independent findings on each and every issue framed by the Trial Court. On issue nos.3 and 6, which are subject matter in this second appeal, the First Appellate Court has recorded a finding that the appellants/plaintiff has himself admitted in his statement that the main gate of his house is at the western side and that it is not plausible that just because the house of the plaintiff/ appellant is below 10 ft in depth, a road accessible from its terrace should be used by plaintiff/appellant. It was further observed that it is also not geographically possible to park any car or scooter etc on the terrace of the house of appellant/plaintiff. 15. It was further observed that it is also not geographically possible to park any car or scooter etc on the terrace of the house of appellant/plaintiff. 15. On perusal of record, this Court finds that both the courts below have considered the evidence on record extensively and have recorded categorical findings to the effect that the suit property is situated at 74, Gandhinagar, Ballupur; that, the plaintiff and his family members are using the common road which is in the west side of the suit property; that, they have built a gate in the west side; that, as per own admission of the original plaintiff, there is a difference in height of about 8 feet in the houses of the plaintiff and defendants; that, after the suit property in the east side there is a ‘pusta’ and thereafter there is a road left by colonizer which is not a common road; that, there is no evidence on record to show that the appellant/plaintiff or his family members use the disputed road. 16. The upshot of the discussion made above is that the substantial question of law is answered in negative against the appellant/plaintiff. The Trial Court and the First Appellate Court have passed the judgment/orders after proper appreciation of evidence and the same do not require any interference by this Court. Present second appeal is bereft of merits and the same is hereby dismissed. 17. No order as to costs.