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Suwalal Vs. Meghraj and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 231 of 1970
Judge
Reported in1980WLN(UC)256
AppellantSuwalal
RespondentMeghraj and ors.
DispositionAppeal allowed
Excerpt:
.....that the defendants purchased their house from thakur nimbaj, namely ummed singh and there was no gate and balcony over it in the backside well of the house of the defendants towards the chabutari of the plaintiffs till november, 30 1965 on which, date, the defendants opened a new gate and constructed a new balcony on the back side wall of their house by demolishing the chabutra of the plaintiffs and constructing a new chabutra of their own on its place without any authority in spite of the fact that their application for permission to open the gate and to construct a balcony over it was rejected by the gram panchayat, nimbaj on may 31, 1961. 3. the plaintiffs further stated in their plaint that the defendants, by demolishing the chabutari of the plaintiffs and constructing a chabutari..........that the defendants purchased their house from thakur nimbaj, namely ummed singh and there was no gate and balcony over it in the backside well of the house of the defendants towards the chabutari of the plaintiffs till november, 30 1965 on which, date, the defendants opened a new gate and constructed a new balcony on the back side wall of their house by demolishing the chabutra of the plaintiffs and constructing a new chabutra of their own on its place without any authority in spite of the fact that their application for permission to open the gate and to construct a balcony over it was rejected by the gram panchayat, nimbaj on may 31, 1961.3. the plaintiffs further stated in their plaint that the defendants, by demolishing the chabutari of the plaintiffs and constructing a chabutari.....
Judgment:

K.D. Sharma, J.

1. This is a second appeal filed by Suwalal, against the decree and judgment of the learned Civil Judge, Sojat dated March 30, 1970 by which the judgment and the decree of the Munsif Jetaran dated November 8, 1968 were modified to the extent that the order for closure of the door and the perpetual injunction granted in favour of the plaintiff with regard to it were set aside.

2. The relevant facts giving rise to this appeal may be briefly stated as follows Suwa Lal and Prithvi Raj, plaintiffs instituted a suit against Megh Raj, Inderchand and Prem Raj defendants for grant of mandatory and prohibitory injunction in the court of learned Munsif, Jetaran on March 9, 1966. The averment in the plaint were that the plaintiffs and their brothers own and possess three houses in a narrow lane situated in the Mohalla of Sharabji's at Village Nimbaj. In between the two houses of the plaintiffs there is the backside wall of the house of the defendants, which is shown in green colour in the site plan. In the front of the house of the plaintiffs, there existed a `Packa Chabutra' shown in dots in the site plan for the last hundred years. The Chabutra was used by the plaintiffs for their sittings on the occasion of marriages and deaths in their family and the plaintiffs had acquired proprictory rights in the land on which the 'Chabutra' existed. In the alternative, it was pleaded in the plaint that the plaintiffs have a customary right of way over the Chabutara and the open land lying in front of their houses. It was further alleged in the plaint that the defendants purchased their house from Thakur Nimbaj, namely Ummed Singh and there was no gate and balcony over it in the backside well of the house of the defendants towards the Chabutari of the plaintiffs till November, 30 1965 on which, date, the defendants opened a new gate and constructed a new balcony on the back side wall of their house by demolishing the Chabutra of the plaintiffs and constructing a new Chabutra of their own on its place without any authority in spite of the fact that their application for permission to open the gate and to construct a balcony over it was rejected by the Gram Panchayat, Nimbaj on May 31, 1961.

3. The plaintiffs further stated in their plaint that the defendants, by demolishing the Chabutari of the plaintiffs and constructing a Chabutari of their own in this place, and by opening a new gate in the backside wall of their house and constructing a balcony over the gate in the wall; have deprived the plaintiffs of their proprietary rights in the land or in the alternative have obstructed their customary right of way on the land on which their old 'Chabutari' existed. Hence, the plaintiff' prayed for grant of a mandatory injunction for closure of the gate and the balcony over it and for demolition of the new Chabutari constructed by the defendants In place of the plaintiffs' old 'Chabutari. It was further pressed by the plaintiffs that a prohibitory injunction may also be issued restraining the defendants in future from opening a gate in their backside wall and constructing a balcony over it and from obstructing the plaintiff's customary fight of way over the land in question by constructing a new Chabutari of their own.

4. The defendants resisted the suit of the plaintiffs on various grounds which were enumerated in their written statement. Their plea was that no Chabutari of the plaintiffs ever existed on the land in dispute and that no new gate was opened by the defendants In the backside wall of their house, and no new balcony was constructed by them over the gate. According to the defendants, the gate and the' balcony in their backside wall were old ones and therefore, the plaintiffs were not entitled to grant of mandatory or perpetual injunction for closure of the door and removal of the balcony. Likewise, the defendants further pleaded that they did not demolish any Chabutari of the plaintiff and did not obstruct any customary right of way of the plaintiffs. It was further pleaded by the defendants that the land in question did not belong to the plaintiffs, nor at any time they had any customary right of user on way over it. Upon pleadings of the parties the (sic)searned Munsif framed as many as seven issues in the suit which read as follows:

1vk;k eqnbZ;ku is'k fd;s gq, uD'ks es ihys jax ls crk;s gq, edku ds chp eqnk;kykghu dk gjs jax dk edku vk;k gqvk gS A

2vk;k eqnbZ;ku ds nksuks edkuks ds lkeus MhV fPkUV ls fn[kkbZ xbZ prwrfj;s vkbZ gqbZ gS tks eqnsbZ;ku ds ,d ekuk dCts es gsS vkSj eqnsbZ;ku mudk mi;skx djrs gS A

3vk;k eqnsbZ;ku dks mijksDr pcwrfj;ka dh tehu es gdd ekydkuk izkIr gS o xqtj ds vf/kdkj izkIr gsSA

4vk;k eqnk;yk us rkjh[k 30&11&65 ds ikl il vius edku ds i{kksr es tks uD'ks es jax fn[kk;k x;k gS u;k njoktk fudky fn;k o u;k Ntk pk fn;k o eqnbZ;ku dh pcwrfj;ka dsk rksM+dj dCtk djds ubZ pcwrjh cukdj dCtk dj fy;k tks yky jax ls fn[kk;k x;k gS A----------

5 vk;k eqnbZ;ku nkok Mandatory and prohibltory injuction ikus ds vf/kdkj gS A

6 vk;k uD'ks es crk;s gq, ihys jax ds edkuks es eqLeh;ku eqyrkueuy] pEikyky o /kujktth dh cgw o eqnk;ykfge t:jh Qkjhd eqdnek gS A mudks Qjhd eqdneks cuk;s fcuk nkok dkfcy cuus ds ugh gsSA-----

7 izfrdkj

5. After framing the aforesaid issues the learned Munsif recorded the evidence of the parties and came to the conclusion upon evidence on the record that the plaintiffs could not prove that their old Chabutari existed on the land marked by date in the site plan and that it was demolished later on by the defendants. The learned Munsif further held that the plaintiffs could n prove that the land In question belong to their ownership, hut he came to finding that the plaintiffs have a customary right of user and way over the land and the defendants were not authorized to obstruct their right of user and way by opening a new gate In the backside wall of their house and by constructing a Chabutari of their own on the land. In view of these findings the learned Munsif granted a mandatory Injunction in favour of the plaintiffs for closure of the gate and removal of the Chabutari and further restrained the defendants by prohibitory injunction from opening the gate in she backside wall of their house and from causing any encroachment on the land over which the plaintiffs have a right of way.

6 Aggrieved by the decree and the judgment of the learned Munsif the defendants preferred an appeal in the court of Civil Judge, Sojat, who after hearing the parties and going through the record partly accepted the appeal and set aside the decree and judgment of the learned Munsif so far as it related to the closure of the gate and the grant of perpetual injunction with regard thereto The rest of the decree and the judgment of the learned Munsif was confirmed and the parties were left to bear their own costs throughcut. As against this judgment and decree of the learned Civil Judge Sojat the plaintiffs have come up in second appeal to this court. The defendants also filed a cross objection fn the appeal.

7. As the appeal and the cross objection arise out of one and the same decree and Judgment of the learned Civil Jude, Sojat and as common questions of law and fact arise in both of them they arc disposed of together by my one judgment.

8. I have, carefully perused the record and heared Mr. N.M. Lodha, learned Counsel for the appellant and Mr. S.C. Bhandari, learned Counsel for the respondents Firstly, it has been contended on behalf of the appellants that both the courts below have committed an error in holding that the plaintiffs failed to prove that their was any old. Chabutri in front of their house at the place shown to dots in the site plan and the land under the chabutari was owned and possessed by them and so the findings arrived at on issues Nos. 2 and 3 are liable to be set aside. The above contention has no force. The learned Munsif considered the evidence on issues Nos. 2 and 3 and rightly come to a conclusion that the plaintiffs could not succeed in proving that there existed an old chabutari on the land shown by dots in the site plan which belonged to the plaintiffs' ownership and possession and which was later on demolished by the defendants. The lower appellate court also concurred with the findings of the learned Munsif and rightly held that no chabutari of the plaintiff,' ever existed on the land marked in dotted lines In the map Ex.P 3 and that this piece of lard did not belong to the ownership of the plaintiffs The reasons gives by the learned Munsif and the lower appellate court in arriving at the above mentioned findings are good and sound and are based on correct appreciation of legal evidence. This court, in second appeal, cannot interfere with the findings of fact arrived at by the courts below unless they have committed an error of law or a substantial error of procedure. Findings offset, based on legal evidence, cannot be interfered with in second appeal, even though this court is inclined to take a different view. There is no such error or defect in the aforesaid findings arrived at by the courts below as may call for interference by this Court on the questions of fact in this second appeal. Consequently, I have no hesitation in holding that the plaintiffs have miserably failed to prove that there was an old chabutari belonging to their ownership on the land marked in dotted lines In the site plan Ex.P 3 and that the chabutari was later on demolished by the defendants. It appears from the record that the land shown in dotted lines in the site plan is a Government lard and does not belonging to either party to the suit.

9. The contention put forward by the learned Counsel for the appellants is that the defendants had no fight to open a new gate in the backside wall of their house and to construct a new balcony over it in the said wall. The above contention also has no force, because, the land in question which is shown in dotted lines in the map Ex. P 3, is not proved to be of the ownership an exclusive possession of the plaintiffs. It appears to be a Zazul land and so, the defendants committees no wrong in opening a gate in the backside wall of their wall over the gate. If the plaintiffs were owners of the land in question, they could have a grievance against the opening of the gate and the construction of a balcony by the defendants in their wall towards this land, but when the land in question did not belong to the ownership and exclusive possession of the plaintiffs, they cannot be heard to say that their any proprietary right in the land in dispute has been infringed or impaired by opening of the gate and construction of the balcony. Consquently, I am of the view that the plaintiffs were not entitled to a mandatory injunction for closure of the gate and the removal of the balcony. In this view of the matter, no question of granting a perpetual injunction restraining the defendants from opening the gate and constructing a balcony in their wall in future could possibly arise.

10. It is no doubt true that both the courts below arrived at a finding upon evidence led by the parties, that the plaintiffs have a right of way over the land in question shown in dotted line in the site plan Ex. P3. This finding of fact which cannot be questioned in second appeal, but form a bare look into the site plan Ex. P 3, it appears that no obstruction to the right of way of the plaintiffs is caused by construction of a chabutari by the defendants. The site-plan show that beside the piece of land covered by the chabutari towards the south, which can conveniently be used, and is in fact being used, as way by the plaintiffs for going from and coming to their houses. The chabutari constructed by the defendants is in line of the chabutari of the plaintiffs and, therefore, the plaintiffs cannot heard to say that their right of way has been infringed by the defendants and, that they are entitled to get the chabutari demolished especially when there is no reliable proof on the record from the side of the plaintiffs that the chabutari are situated side by side in the same line and because by the side of the land covered by the disputed chabutari there is left sufficient open land for the plaintiffs to exercise their right of way.

11. Hence, I am of the opinion that no useful purpose will be served if the chabutari constructed by the defendants in front of the gate which they have opened in the back-side wall of their house is ordered to be demolished.

12. The result of the above discussion is that the second appeal filed by Suwalal plaintiff appellant is allowed and the judgment and the decrees of both the courts below, so far as they relate to the demolition of chabutari of the defendants are set aside. In the circumstances of the case, the parties are left to bear their own costs through out.


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