Madhya Pradesh High Court
The State Of M.P,And Anr. vs Gyan Chanda And Ors. on 6 May, 2015
1 SA 1507/05
State of M.P. & another Vs. Gyan Chandra & others
6/5/15
Shri Mukund Bhardwaj, Govt. Advocate for the appellants/
State.
None for respondents No. 1 and 2.
Shri Kunal Suryavanshi, Advocate for respondents No. 3 and 4.
Heard on the question of admission.
Present second appeal has been preferred by the appellants/State under Section 100 of the Code of Civil Procedure against the judgment and decree dated 30th September, 2005 passed by the Fourth Additional District Judge, (Fast Track), Shivpuri whereby the appeal preferred by the plaintiffs/respondents No. 1 and 2, herein was allowed and the judgment and decree dated 27/6/2005 passed by the trial court was set aside with direction to the Collector, Shivpuri to re-open the closure public path for utilization of the public within a month and the cost for depriving of the rights of public may be recovered from the authority of the school.
In short as per the plaint averments, the suit was filed by the plaintiffs/respondents No. 1 and 2, namely, Gyanchand and Girish Gupta against the appellants with assertions that in between the house of the plaintiffs and the school building there was a public way having width of 12 ft. for use of the public from Tekri Road to Oswal Jain Temple. It was pleaded that the defendants/respondents No. 3 and 4 without having any legal right and required permission, raised a wall from both the sides 2 SA 1507/05 State of M.P. & another Vs. Gyan Chandra & others and closed the entry of the public and thereby created nuisance. Hence by filing the suit, appropriate relief was prayed for by granting permanent injunction against the defendants/appellants.
The claim of the plaintiffs has been denied inter alia by filing written statement by the respondents No. 1 and 2/Municipal Council, Shivpuri. It was pleaded by the defendants that for reaching the temple there was another way and the disputed passage was only the way which opened towards the main gate of the school. Therefore, from the point of security of the girls studying in the school and to stop the antisocial activities with further keeping in view the convenience of the public at large, the wall was erected by the Principal of the Institution. Therefore it is prayed that the suit may be dismissed.
After recording the evidence of both the parties, the trial court dismissed the suit of the plaintiffs. Being aggrieved by the dismissal of the suit, the plaintiffs came up in appeal before the first appellate court. The first appellate court after re-considering the evidence reversed the judgment and decree of the trial court and allowed the appeal. Hence, the present appeal has been preferred by the defendants/appellants.
Learned counsel for the appellants contended that the impugned findings under the judgment suffer from perversity and non-application of mind and therefore they are liable to be set aside. It is submitted that from the documents available on record, it is established facts that no easementary right accrued to the plaintiffs and after considering the entire evidence, the 3 SA 1507/05 State of M.P. & another Vs. Gyan Chandra & others learned trial court dismissed the suit but the learned first appellate court has committed error in appreciating the evidence and recording findings, which are not permissible in law. It is therefore, prayed that the appeal may be allowed and the judgment and decree passed by the first appellate court may be set aside.
Learned counsel for the respondents, on the other hand, supported the impugned judgment and findings and prayed that the appeal may be dismissed being devoid of merits.
Having regard to the arguments advanced by the counsel for the parties the entire evidence on record has been perused.
On going through the impugned findings recorded by the first appellate court, it is clear that the approach made by the first appellate court is wholly justified. From the documents placed on record, it is clear that the passage was closed on the oral instructions of the Collector from the fund of the school administration. No permission was sought under section 179 of the Municipalities Act. The said fact was proved by the evidence of DW-1 S.P. Shrivastava who himself admitted that no such permission was obtained from the Govt. and only on the oral instructions of the Collector the passage was closed. The appellate court has considered and appreciated the entire evidence and thereafter came to the conclusions which are not found to be illegal. The findings are based on proper appreciation of the evidence on record. This court therefore does not find any involvement of substantial of question of law in this appeal. The 4 SA 1507/05 State of M.P. & another Vs. Gyan Chandra & others appeal is therefore dismissed in limine.
The decree be drawn up accordingly.
Record of the case be sent back to the courts-below with a copy of this order.
(B.D. Rathi) Judge (Bu)