Madhya Pradesh High Court
Devendra Kumar Jain vs Smt. Aradhana Soni Judgement Given By: ... on 3 January, 2014
1
S.A.No.22/2013
Second Appeal No.22/2013
03.01.2014
Shri Shimla Jain, learned counsel for appellant. Heard on admission.
The parties are referred to as they stood before the trial Court.
This is defendant's second appeal against the judgment and decree dated 03.10.2012 passed by fourth Additional District Judge, Jabalpur in Civil Appeal No. 12-A/2012 dismissing the appeal arising out of judgment and decree dated 01.10.2007 passed by the Civil Judge Class-I, Jabalpur in civil suit No.7-A/2000.
Suit by the plaintiffs, owner of house No.138-139 situated over block No.48, plot No.46 at Darhai, Jabalpur was filed for a declaration that the defendant be prohibited from raising a wall over common passage of 4'x6" x 8'x7"
which lay from east to west of the plaintiff's house and south of defendant's holding and for permanent injunction on the ground that the common passage was never purchased by the defendant and that the same is being used by the inhabitants in the vicinity. Defendant denied plaint allegation and categorically stated that no construction is being raised over the suit property i.e. common passage.2
S.A.No.22/2013
Trial Court framed four issues, viz, (i) (a) whether the suit property is a common passage? (b) whether the defendant has raised an unauthorized construction over the suit property? (ii) whether plaintiff is entitled for a declaration and mandatory injunction ? (iii) whether with the construction raised, free movement of the plaintiff has been obstructed ? and (iv) relief and costs ?
That on the basis of material evidence on record the trial Court answered all the issues in affirmative and directed the defendant to demolish the wall constructed over common passage and refrained him from raising any construction or creating any hindrance over the common passage in future. Aggrieved, defendant preferred an appeal but has been unsuccessful therein, as the Appellate Court vide its judgment and decree dated 03.10.2012 affirmed the judgment and decree by the trial Court.
Considered the submissions put forth on behalf of appellant/defendant. Perused the record.
It is observed from the record that the trial Court to arrive at a finding that the defendant is not the owner of the suit property i.e. common passage and that without any permission or authority has raised a wall resulting in obstruction not only of the plaintiffs but others who use the passage, has relied on the material evidence on record. The 3 S.A.No.22/2013 trial Court also returned finding that the defendant failed to prove from the exhibited sale deed (Exhibit-D/1) that the common passage is 30 feet and not 5' x 87'. This fact was established by one of the signatory of the sale deed Ex.D/1, Syyed Shabbir Ali, examined as plaintiff witness No.3. The Appellate Court also affirmed these findings vide impugned judgment.
Appellant/defendant having failed to establish any perversity in findings arrived at by both the Courts below, no substantial question of law arises.
Consequently, the appeal is dismissed at admission stage. No costs.
(SANJAY YADAV) JUDGE anand