Allahabad High Court
Radhey Shyam Died And 4 Ors. vs Chhoti Bitiya And Another on 29 January, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 27.11.2019 Delivered on 29.01.2020 Court No. - 53 Case :- SECOND APPEAL No. - 1039 of 2019 Appellant :- Radhey Shyam Died And 4 Ors. Respondent :- Chhoti Bitiya And Another Counsel for Appellant :- Ramendra Asthana Counsel for Respondent :- Bhanu Bhushan Jauhari Hon'ble Vivek Agarwal,J.
Heard Sri Ramendra Asthana, learned counsel for the appellants and Sri Mayank Singh, learned counsel for the respondents.
This appeal has been filed by the plaintiff's legal heirs being aggrieved by the judgment and decree dated 26.11.2015 passed by the learned Additional District Judge, Court No. 7, Shahjahanpur in Civil Appeal No. 9 of 2012 (Chhoti Bitiya and another vs. Radhey Shyam Sharma), whereby learned First Appellate Court has reveresed the judgment and decree dated 21.12.2011 passed by the Court of learned First Additional Civil Judge (Junior Division), Shahjahanpur in Original Suit No. 01 of 2008 (Radhey Shyam Sharma vs. Chhoti Bitiya and another).
Brief facts leading to the present appeal are that plaintiff- Radhey Shyam Sharma had filed a suit for permanent injunction against the defendants on the ground that land contained in survey no. 1578 measuring 0.57 acre was owned by Smt. Kaniz Fatma and Sri Aziz Ahmad Khan who were the owner of this piece of land in equal proportion. Smt. Kaniz Fatma had executed a sale deed of her portion of land on 06.10.1964 in favour of Sri Ram Dayal. According to the sale deed, boundaries of the property were mentioned as under: in east, land of Sri Guru Prakash, Advocate, in west and south, land of Smt. Kaniz Fatma and in north, land of Sri Lokpal Singh.
Sri Ram Dayal had appointed Sri Diwari Lal as his power of attorney for the purposes of the land in question on 08.05.1975 and the power of attorney holder had executed a sale deed of this land on 06.12.1977 in favour of Smt. Kailashi Devi Saxena. Kailashi Devi in turn, vide sale deed dated 08.03.1990 sold this land in favour of father of the plaintiff namely, Sri Tulsi Ram and according to the plaintiff, plaintiff is the only legal heir of Sri Tulsi Ram. It is the plaintiff's case that on 16.11.1968, he had purchased a piece of plot lying south to the plot purchased by his father from one Sri Tulsi Ram Saxena and constructed his house. In fact, Sri Tulsi Ram had purchased this plot in the year 1966 from Smt. Ramkali through a sale deed and Smt. Ramkali in turn had purchased such plot from Kaniz Fatma vide sale deed dated 12.02.1965. The plot which was purchased by Ramkali from Smt. Kaniz Fatma vide sale deed dated 12.02.1965 described its boundaries as under: in east, aam rasta and thereafter land of Sri Guru Prakash, Advocate, in west, house of Ram Chandra, in north, house of Ram Dayal and in south, "Kuncha".
According to the plaintiff, he had consolidated the plot purchased by him and his father and is now owner and possessor of the consolidated portion of land. There was a passage on east and south of the house of the plaintiff which was 13.6 mts. in length and 2.70 mts. in width on north-south and 2.35 mts. in width on south. Plaintiff discovered that said passage as above mentioned is part of survey no. 1578 and its owner is Aziz Ahmad Khan and therefore, vide sale deed dated 02.03.2000, plaintiff purchased that passage from Aziz Ahmad Khan and according to the plaintiff, he became owner of the said passage and took that passage in his possession. This passage has been shown in the suit map with alphabets क, ख, ग, घ. Its boundaries are as under: on east, naali thereafter, land of defendants, on west, house of the plaintiff, on north, house of the plaintiff and on south, Khadanja Government. According to the plaintiff, he was using this passage marked with alphabets क, ख, ग, घ.
It is the case of the plaintiff that defendants whose plot is on the east of the disputed passage after a naali were trying to block that passage by erecting a door for which they were not authorised to do so.
On the contrary, defendants who were appellants before the learned First Appellate Court filed a written statement to the effect that the said passage marked with alphabets क, ख, ग, घ is not the property of ownership of the plaintiff, but is a part of the easementary rights of the defendant. This passage has been used by the plaintiff and the defendant for time immemorial and defendant had purchased his plot in the year 1997 from Guru Prakash Saxena and this passage is existing prior to that and is in existence even on the day of evidence. It was submitted that from the naali, there is exit of domestic rain water and defendant has a right to fix a door and ventilator towards that passage in his wall and plaintiff has no business to stop them from doing so. It is further mentioned that plaintiff in his sale deed dated 16.11.1968 has admitted presence of common passage on the east. Similarly, in the sale deed which was executed on 20.06.1966 by Ramkali in favour of Tulsi Ram Saxena, this passage is mentioned and even it is mentioned when Smt. Kailash Saxena had sold the house in favour of Tulsi Ram Saxena on 08.03.1990, therefore, plaintiff is estopped from pleading anything contrary to what is available on record.
On the basis of aforesaid rival submissions, learned First Appellate Court found that Commission Report document no. 30-C which was filed on 18.03.2008 has been proved in evidence. Though, learned Trial Court has passed a decree of permanent injunction in favour of the plaintiff, but learned Trial Court has not taken into consideration a fact that Aziz Ahmad has no right to sell the disputed passage in favour of the plaintiff inasmuch as Kaniz Fatma had perfected her title on the eastern part of survey no. 1578, a fact which is mentioned in the sale deed dated 11.08.1964. First sale deed was executed in favour of Guru Prakash. Copy of said sale deed is available in record as document no. 26-C. In this sale deed, Kaniz Fatma had made a mention of complete details of her share of property. Gata no. 1578 was the agricultural property and when it was sold in the form of residential plots, it was an admitted position that Kaniz Fatma and Aziz Ahmad was having 50-50 share in plot no. 1578 and after death of Kaniz Fatma, Aziz Ahmad became owner of the land contained in survey no. 1578. Once it has come on record that plaintiff had purchased his plot vide sale deed dated 16.11.1968 from Tulsi Ram Saxena and when said plot was for the first time sold by Kaniz Fatma in favour of Ramkali, wife of Kallu vide sale deed dated 12.02.1965, then in that sale deed of the predecessor of the plaintiff, it is clearly mentioned that in the east of the plot exist ''aam rasta' after which plot of Guru Prakash. When Tulsi Ram from whom plaintiff purchased the plot from Ramkali, wife of Kallu, then also in the boundaries, it is mentioned that in the east, there is a common passage and after which plot of Guru Prakash. Therefore, on 16.11.1968 itself, there is a mention of common passage on the east of the plot of the plaintiff. This fact has been admitted by both the parties that in the sale deeds starting from 1964 to 1968, disputed portion has been shown as common passage. Therefore, there is no manner of doubt that it being a common passage, in terms of the provisions contained in Section 18 of the Easement Act, every person is entitled to fix a door or window in his wall towards the common passage, therefore, plaintiff was not entitled to a decree of permanent injunction. This finding when read in conjunction with other issues framed by the learned Trial Court and discussed by the learned Appellate Court, it is apparent that a passage could not have been purchased by the plaintiff vide sale deed dated 02.03.2000 because it has come on record that it was being used from 1964 as a common passage i.e., for a period of about 36 years and therefore, such rights could not have been curtailed. Further, learned 1st Appellate Court has noted that plotting took place on agriculture land. Common passages left in course of plotting because common property could not be alienated by Aziz Ahmad Khan treating himself to be the owner of such vacant plot/land.
In view of such facts, once it has come on record that the passage which has been used as a common passage since 1964 could not have been purchased by the plaintiff and this aspect has not been considered by the learned Trial Court and therefore, the learned First Appellate Court has rightly reversed the findings recorded by the learned Trial Court and they do not call for any interference being based on the cogent appreciation of the evidence both documentary and oral which has come on record. It has also come on record that the learned Trial Court despite observing that channel gate of the defendant was already installed on the disputed passage and there was no prayer for amendment in the plaint seeking removal of such gate and also there being no evidence to show that said public passage was a private property of the plaintiff, in the opinion of this Court, learned First Appellate Court has rightly passed the impugned judgment and decree which does not give rise to any substantial question of law lest the one which are mentioned in the memo of appeal. In fact, Section 13 of the Easements Act which deals with easements of necessity and quasi-easements could not have been applied as suggested by learned counsel for the appellants when the burden was on the plaintiff to prove that a property which is subject matter of dispute is when depicted as public way (aam rasta) in the sale deed executed in his favour in the year 1968 and prior to that in the sale deeds executed by the predecessor of his vendor, then how the burden of proof could have been shifted on the defendant who was relying on documents which were more than 30 years old and therefore, in terms of the provisions contained in Section 90 of the Indian Evidence Act were admissible in evidence, especially when these sale deeds have not been questioned by the plaintiff. Thus, there is no error in the impugned judgment and decree calling for any interference and it does not give rise to any substantial question of law and therefore, appeal fails and is accordingly dismissed.
Order Date :- 29.01.2020 Vikram/-