Jharkhand High Court
Lalit Kharakia vs Smt. Raj Kumari on 14 October, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.162 of 2020
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(Against the judgment dated 11.06.2020 passed by learned District Judge-I, Dhanbad in Civil Appeal No.155 of 2018)
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1. Lalit Kharakia, aged about 28 years.
2. Birju Kharakia, aged about 32 years.
Both Sons of late Kashi Nath Agarwal, Both residents of Just opposite side to Maithan Ceramias Weigh Bridge at Village Merha, P.O.- Maithan, P.S.- Maithan (Chirkunda), District- Dhanbad.
.... .... .... Defendants/ Respondents/Appellants.
Versus Smt. Raj Kumari, Wife of Gopal Prasad Kushwaha, Resident of Valley Refractories Weigh Bridge at Village Merha, P.O.- Maithan, P.S.- Maithan (Chirkunda), District- Dhanbad.
.... .... .... Plaintiff/Appellant/Respondent
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For the Appellants : Mr. Ashok Kr. Yadav, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the learned counsel for the appellants.
2. This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment and decree dated 11.06.2020 passed by learned District Judge-I, Dhanbad in Civil Appeal No.155 of 2018 by which, by the judgment of reversal, the learned first appellate court decreed the suit of the plaintiff filed with the prayer for permanent injunction, restraining the defendant, their men, agents etc. from interfering with the plaintiff's free and peaceful use of the Schedule B land of the plaint and also restraining them from making any construction, erection and any obstruction as well as a decree directing the defendants to demolish the wall and iron gate 1 S.A. No.162 of 2020 erected by the defendants on the Schedule B land of the plaint. The Schedule B land has been described as a land of 15 ft. wide and 50 ft. length as a passage situated to the extreme northern side of the Schedule A land over which the plaintiff's house is situated connecting to the main Maithan Road.
3. The brief fact of the case is that the plaintiff filed Title Suit No.121 of 2014 in the court of Civil Judge, (Junior Division)-X, Dhanbad with the aforesaid prayers.
4. The case of the plaintiff in brief is that the suit land originally belonged to the father of the defendant namely Kashi Nath Agarwal. During his lifetime, Kashi Nath Agarwal sold the Schedule A land of the plaint to the plaintiff. In the map, it has been described that there is a 15 ft. wide passage in the northern side of the property. It is the case of the plaintiff that the said passage situated to the northern side of Schedule A land is connecting to the main Maithan Road which was used by the plaintiff for ingress and egress to the Schedule A property. Schedule B property is for the link road but the defendant in the month of July, 2014 constructed a wall and fixed an iron gate touching the house of the plaintiff towards south north side and blocked Schedule B property. Hence, being aggrieved, the plaintiff filed the suit.
5. The defendants in their written-statement challenged the maintainability of the suit on various technical grounds and admitted that their father sold the Schedule A land to the plaintiff but denied that the plaintiff was using the Schedule B land for ingress and egress.
6. On the basis of the rival pleadings of the parties, the learned trial court settled the following eleven issues:-
(i) Is the plaintiff owner of the suit property and can the defendant be 2 S.A. No.162 of 2020 directed to remove the construction from the suit property?
(ii) Whether permanent injunction can be ordered against the defendant, their men, agent from disturbing the peaceful possession of the plaintiff of the suit land?
(iii) Is the suit maintainable? (iv) Has the plaintiff any cause of action? (v) Is the suit barred by provision of waiver, acquiescence and estoppel? (vi) Whether the suit is barred by Specific Relief Act? (vii) Is the suit barred by C.N.T. Act? (vii) Is the suit barred by provision of Limitations? (ix) Is the suit barred by mis-joinder and non-joinder of necessary party? (x) Is the suit under valued? (xi) Whether the plaintiff is entitled for any other relief or reliefs?
7. In support of his case, the plaintiff altogether examined three witnesses and proved the documents which have been marked as Ext. 1 and Ext. 2. From the side of the defendants, no witness was produced either oral or documentary.
8. The learned trial court first took up issue No.(i) and came to the conclusion that the plaintiffs could not produce any substantial evidence regarding the title and possession over the Schedule B land and decided the issue No.(i) against the plaintiff and in favour of the defendants.
9. The learned trial court next took up the issue No.(ii) and held that the plaintiff has no cause of action.
10. The learned trial court next took up the issue Nos.(v) to (x) together and disposed of the same as not pressed.
11. Lastly, the learned trial court took up the issue Nos.(iii), (iv) and (xi) together and on the basis of its finding in respect of the issue No.(i) decided the issues against the plaintiff and in favour of the defendants and dismissed the suit.
12. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff filed Civil Appeal No.155 of 2018 in the court of Principal 3 S.A. No.162 of 2020 District Judge, Dhanbad which was ultimately heard and disposed of by the learned first appellate court being the District Judge-I, Dhanbad by the impugned judgment as already indicated above.
13. The learned first appellate on the basis of the materials available in the record and the submissions made before it, formulated the following sole point for determination:-
"Point no. I:- Is the plaintiff/appellant entitled for grant of permanent injunction against the defendant/respondent, their men and agent from interfering in the peaceful possession of the plaintiff of Schedule A & B land?
14. The learned first appellate court considered that in the map attached with the sale-deed, it has categorically been mentioned that there is 15 ft. wide passage shown in the map in the northern side of the property and it has been mentioned in the sale-deed which has been marked Ext. 1 that there is land of vendors. The learned first appellate court considered that Schedule B is situated towards the northern side of Schedule A property and there is a 15 ft. wide passage. The defendant has not contradicted the Ext. 1 which is the sale- deed executed by their father, so, the plaintiff has right of ingress and egress through the Schedule B property situated to the northern side of the purchased land of the plaintiff described in Schedule A of the plaint and went on to hold that the plaintiff shall suffer irreparable loss if the order of permanent injunction shall not be passed in their favour and decided the point for determination No.1 in favour of the plaintiff and decreed the suit of the plaintiff by holding that the plaintiff is entitled for a decree for permanent injunction restraining the defendants from objecting the plaintiff to use the Schedule B passage and ordered the defendants to remove the boundary and 4 S.A. No.162 of 2020 the gate from northern side of the suit property within three months from the date of passing of the judgment by the learned first appellate court.
15. Learned counsel for the appellants submits that the defendant who is the appellant of this Second Appeal is aggrieved by not using the words 'Schedule B' specifically in the impugned judgment and apprehends that taking advantage of the same, the plaintiff is bent upon exercising her right to ingress and egress over and above the land described in Schedule B of the plaint. It is next submitted by the learned counsel for the appellants that the learned first appellate court has erred in returning a finding regarding easementary right without any pleading and evidence, hence, it is submitted that the judgment and decree passed by the learned first appellate court be set aside after formulating appropriate substantial question of law.
16. Having heard the submissions of the learned counsel for the appellants and after going through the materials available in the record, it is pertinent to mention here that though it has not been mentioned in the impugned judgment that the relief of permanent injunction and for removal of boundary wall and gate from the northern side of the suit property is in respect of Schedule B land of the plaint but it is crystal clear from bare perusal of paragraph-7 as well as Schedule B of the plaint that the suit has been decreed by the learned first appellate court in respect of Schedule B land only and the description of the same is categorical. It is a passage of 15 ft. width and the length of 50 ft. starting from the West of Maithon Main Road so, this Court do not find any ambiguity in the impugned judgment and decree passed by the learned first appellate court and there is no perversity in the finding of fact arrived at by the learned fist appellate court.
5 S.A. No.162 of 2020
17. Under such circumstances, this Court is of the considered view that there is absolutely no substantial question of law involved in this Second Appeal.
18. Accordingly, this appeal, being without any merit, is dismissed but under the circumstances without any costs.
19. Let a copy of this judgment be sent to the courts concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 14th of October, 2024 AFR/ Animesh 6 S.A. No.162 of 2020