Madhya Pradesh High Court
Kishorilal vs Pancham Lal on 6 August, 2013
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
Second Appeal No.471/1998
Kishori Lal s/o. Param Lal Shivhare
Vs.
Pancham Lal s/o. Achhelal Yadav.
Counsel for the appellant : Mr. Abhishek Singh, Advocate.
Counsel for the respondent : None.
Present : Hon'ble Mr. Justice Alok Aradhe
J U D G M E N T
(06.08.2013) This appeal is by the plaintiff, which was admitted on the following substantial question of law :-
" Whether the finding recorded by the Courts below that there is no Kuliya in between the house of the plaintiff and defendant is perverse and has been arrived at on improper consideration of Ex.P-2 and the evidence of D.W.1 ?"
2. Facts giving rise to filing of the appeal briefly stated are that the plaintiff filed a suit inter-alia on the ground that the plaintiff and defendant are neighbours and the plaintiff had purchased the house vide registered sale- deed dated 27.6.1978 Ex.D/11 from Pratap Singh and by 2 S . A . No . 4 7 1 / 1 9 9 8 rectification deed 6.1.1990 the map annexed to the sale- deed was rectified. It was further pleaded that the defendant purchased his house vide registered sale-deed dated 14.2.1977 from one Feran. Thereafter, the aforesaid Feran executed another conveyance-deed Ex.D/2 dated 20.4.1988 in favour of the defendant. A passage is situate between the houses of the plaintiff and the defendant. The defendant started collecting building material with a view to raise construction on the passage. Thereupon, the plaintiff filed a suit seeking relief of declaration, restraining the defendant from raising construction on the passage and from making any encroachment on the passage in dispute.
3. The defendant filed the written statement inter- alia alleged that no passage is in existence between the houses of the plaintiff and the defendant.
4. The trial Court vide judgment and decree dated 26.10.1994 inter-alia held that no passage is in existence between the houses of the plaintiff and the defendant and the plaintiff has neither pleaded nor perfected his title over the passage in existence. It was further held that the rectification deed dated 6.1.1990 shall not be a foundation for existence of the passage. The aforesaid decree was affirmed in appeal.3
S . A . No . 4 7 1 / 1 9 9 8
5. Learned counsel for the appellant has submitted that the finding recorded by the Courts below that there is no passage in existence between the houses of the plaintiff and the defendant is perverse in view of Ex.P/2 and the statement of the defendant, who was examined as DW-1.
6. I have considered the submissions made by learned counsel for the appellant and have perused the record. High Court in second appeal can interfere with findings of fact provided that findings are perverse. Re- appreciation of evidence is permissible in exceptional cases. Krishna Mohan Kul alias Nani Charan Kul and another Vs. Pratima Maity and others, (2004) 9 SCC
468. Deva (Dead) through LRs. Vs. Sajjan Kumar (Dead) by LRs. (2003) 7 SCC 481, Manjunath Anandappa Vs. Tammanasa and others, (2003) 10 SCC 390, Yadarao Dajiba Shrawane (Dead) by LRs. Vs. Nanilal Harakchand Shah (Dead) and others, (2002) 6 SCC 440, M.S.V. Raja and another Vs. Seeni Thevar and others, (2001) 6 SCC 652, Saraswathi and another Vs. S. Ganapathy and another, (2001) 5 SCC 705, Manikkoth Narayani Amma and others Vs. P.C. Kalliani Amma and Others, (2003) 9 SCC 245, Hafazat Hussain Vs. Abdul Majeed and others, (2001) 7 SCC 189, D.R. Rathna Murthy Vs. Ramappa (2011) 1 SCC 4 S . A . No . 4 7 1 / 1 9 9 8 158 and Union of India Vs. Ibrahim Uddin and another (2012) 8 SCC 148.
7. The defendant had moved an application dated 5.3.1982 Ex.P/1 to the Nazul Officer for issuance of No Objection Certificate to raise construction. Along with the said application, a map Ex.P/2 was also filed before the Nazul Officer, in which the passage which was 5 feet in width was shown between the houses of the plaintiff and the defendant. The defendant was examined as DW/1. In paragraph-15 of his evidence, he has stated that width of the passage between the houses of the plaintiff and the defendant is one feet. Thus, in view of admission of defendant, which was neither explained nor withdrawn, leads to irresistible conclusion that the passage in question is in existence between the houses of the plaintiff and the defendant. However, the aforesaid material evidence available on record has not been considered by the trial Court while recording the finding that the passage between the houses of the plaintiff and the defendant is not in existence. For the aforementioned reasons, the finding recorded by the Courts below with regard to existence of the passage has to be termed as perverse. In the result, the substantial question of law framed by this Court is answered in affirmative. The judgment and decree of the 5 S . A . No . 4 7 1 / 1 9 9 8 trial Court as well as the lower appellate Court are hereby set aside. The claim of the plaintiff is decreed with costs.
8. In the result, the appeal is allowed.
(Alok Aradhe) Judge RC