Dayaram, S/o. Gopalji Patidar, Since Deceased Thr. Sarika, D/o. Dayaram Patidar v. State Of Madhya Pradesh, Through The Collector, Dhar (Madhya Pradesh)
2024-01-09
HIRDESH
body2024
DigiLaw.ai
ORDER : This second appeal under Section 100 of CPC is filed against the judgment and decree dated 09.05.2022 passed by Second District Judge, Manawar, District-Dhar in RCA No.1/2019 arising out of the judgment dated 10.12.2018 passed by Civil Judge, Class-II, Manawar, District-Dhar in Civil Suit No.46-A/2017. 2. Brief facts of the case are that appellants are the joint owners of House No.78, Laxmibai Marg, Indore Road, Manawar located on survey No.248/1 and 250/1/kha of Manawar, Tahsil and District-Manawar. It is averred that there is 18-20 feet road situated towards the southern portion of the aforesaid house, which was being used by the appellants for reaching their house since last more than 40 years. It is also averred that with a view to harass the appellants, respondents parked a seized vehicle on the aforesaid passage and obstructed the right of way available to the appellants for reaching their house. On the aforesaid averments, appellants filed a suit for declaration of their easmentary right and for mandatory injunction for removal of the obstruction as well as for permanent injunction. The suit was contested by the respondents/defendants by filing their written statement wherein the plaint averments were denied. 3. On the basis of the aforesaid pleadings, issues were framed by the trial court and thereafter, evidence of the parties was recorded by the trial court and thereafter, trial court passed the judgment and decree dated 10.12.2018 whereby suit filed by the appellants/plaintiffs was dismissed. 4. The appellants preferred an appeal under Section 96 CPC before first appellate court which was registered as RCA No.1/2019. The appeal preferred by the appellants has been dismissed by the first appellate court by the impugned judgment and decree dated 09.05.2022. 5. Being aggrieved thereby present appeal has been filed by the appellants/plaintiff before this Court on the ground that trial court as well as first appellate court have committed a grave error of law in dismissing the suit filed by the appellants despite the proof of the easementary right claimed by the appellants for more than 20 years. It has been stated that courts below have failed to consider the settled law that an owner of a land has a right to access to his land from each corner and that respondents have illegally curtailed and infringed the aforesaid right by placing a truck and by obstructing the right of access, air and sunlight.
It has been stated that courts below have failed to consider the settled law that an owner of a land has a right to access to his land from each corner and that respondents have illegally curtailed and infringed the aforesaid right by placing a truck and by obstructing the right of access, air and sunlight. It has been further stated that first appellate court has committed a grave illegality in deciding the appeal without affording proper opportunity of hearing to the appellants. 6. It has been also stated that first appellate court has committed grave error of law and jurisdiction in not deciding the applications filed by the appellants under Order 41 Rule 27; Order 6 Rule 17 CPC and Order 1 Rule 10 CPC which were filed on 25.07.2019 and failed to consider that the grant of prayer made in the aforesaid applications was necessary for just and proper decision of the controversy between the parties. It has been further stated that courts below have misinterpreted the provisions of Section 15 of the Indian Easement Act, 1882 and have committed a grave illegality and perversity in dismissing the suit filed by the appellants on the baseless ground of failure to plead the date of commencement of the easementary right. Therefore, in light of the aforesaid discussion, learned counsel for the appellants submits that present appeal deserves to be admitted on the substantial questions of law proposed by the appellants. 7. Heard the learned counsel for the parties and perused the record of the case. 8. The trial court as well as first appellate court have considered the oral and documentary evidence produced by the plaintiffs. The trial court has not found proved that appellants have easementary right as well as first appellate court has also found that plaintiffs have no easementary right on the disputed land so after perusal of the evidence, trial court has dismissed the suit and the same was affirmed by the appellate court. The appellants have submitted that first appellate court has committed grave error of law and jurisdiction in not deciding the applications filed by the appellants under Order 41 Rule 27; Order 6 Rule 17 CPC and Order 1 Rule 10 CPC which were filed on 25.07.2019. Learned counsel for the appellants placed reliance upon the judgment delivered by the Apex Court in the case of Balbir Singh & anr. Vs.
Learned counsel for the appellants placed reliance upon the judgment delivered by the Apex Court in the case of Balbir Singh & anr. Vs. Jatinder Singh & anr., AIR 2009 SC 354 . The Apex Court in para 4 of the aforesaid judgment has held as under:- “4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.” 9. Learned counsel further submits that in the case of Malyalam Plantations Ltd. Vs. State of Kerala, AIR 2011 SC 559 , the Apex Court has held that it is the duty of the appellate court to decide the application filed by the appellant under Order 41 Rule 27 of CPC. 10. It is true that first appellate court omitted to decide the application under Order 41 Rule 27; Order 6 Rule 17 CPC and Order 1 Rule 10 CPC which were filed on 25.07.2019 by the appellants before first appellate court on 25.07.2019. Considering these documents, it is found that if the appellate court has accepted these applications filed by the appellants before him, no relief can be granted on the basis of the these documents. Therefore, in the considered opinion of this Court, even if first appellate court has not decided these applications filed in the appeal, no prejudice has been caused to the appellants. 11. Learned counsel for the appellants submit that under Section 15 of The Indian Easement Act, 1882, appellants have accrued their easementary right.
Therefore, in the considered opinion of this Court, even if first appellate court has not decided these applications filed in the appeal, no prejudice has been caused to the appellants. 11. Learned counsel for the appellants submit that under Section 15 of The Indian Easement Act, 1882, appellants have accrued their easementary right. But, it is true that disputed land was government land and if the land belongs to government then it should be for 60 years for accruing the easementary right so considering these provisions and pleadings of the appellants, no easementary right has been accrued in favour of appellants in disputed property. 12. I have given thoughtful consideration to the contention of the learned counsel for the appellants and do not find any merit in the same. It is well settled that plaintiffs have to prove their own case and should have stood on their own leg. 13. In the case of Vishwanath Vs. Sau SarlaVishwanath Agrawal, reported in 2012 (4) MPLJ (SC) 265, the Apex Court relying on the judgment in the case of Vidhyadhar Vs. Manikrao and another wherein it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board & Ors. 14. In view of the aforesaid, no fault can be found with the judgment and decree passed by both the Courts below in dismissing the suit and appeal filed by the appellants. The concurrent findings recorded by the Courts below are based on proper appreciation and assessment of the oral and documents on record and do not suffer from any perversity or material irregularities warranting interference by this Court. 15. In such circumstances, no substantial question of law arises for consideration in this present appeal. The appeal being devoid of any merit is accordingly dismissed. No order as to costs.