Madhya Pradesh High Court
Ramesh Chandra vs Tejmal on 19 September, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
1
S.A. No. 212/2001
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
S.A. No.212 of 2001
Rameshchandra & others. ...Appellants.
Vs.
Tejmal Jain & another. ...Respondents
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Shri H.Y. Mehta, Advocate for appellants.
Shri S.S. Garg, Advocate for respondents.
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JUDGMENT
(Delivered on 19th September, 2019) The appellants/defendants have filed the present second appeal being aggrieved by judgment and decree dated 23.3.2001 passed by 2nd Additional District Judge, Neemuch in Civil Regular Appeal No.27-A/1994, whereby the judgment and decree dated 7.7.1994 passed by Civil Judge, Class-II, Neemuch dismissing the suit has been set aside and the suit has been decreed in favour of the respondents/plaintiffs.
2. Facts of the case, in short, are as under:
(i) The respondents (hereinafter referred to as "the plaintiffs") filed the suit for permanent injunction against the present appellants (hereinafter referred to as "the defendants").
According to the plaintiffs, they purchased House No.7 (new No.16/1 and 16/2), Station Road Baghana, District Neemuch vide registered sale-deed dated 30.10.1987 from erstwhile owner
- Manmal and took the possession. Before the above they were already in possession in some portion of the house since last 20 years. On the South side of the house of the plaintiffs, there is a 2 S.A. No. 212/2001 'Pakka' platform and for disposal of rainy water, there is drainage since last 35 years. In the South side of the house, there is a slope over the rooms from which the rainy water flows to the drainage system through platform. On 12.4.1989, the defendants have started construction of a wall over the drainage which resulted into infringement of easementary rights of air, water and passage of the plaintiffs . The plaintiffs objected to it, but the defendants did not stop the construct of wall and completed the same on 13.4.1989 which gave cause of action to plaintiffs for filing the suit for permanent injunction. By way of amendment, the plaintiffs also sought the relief of removal of the wall by way of directory injunction. The measurement of the wall is 27 ft. in length, 7 ft. in height and 18 Inches in breadth.
(ii) After notice, defendants filed the written statement refuting the averments made in the plaint and prayed for dismissal of the suit.
(iii) On the basis of pleadings made in the plaint and the written statement, learned trial Court framed four issues for adjudication, which are reproduced below :
"1- D;k oknhx.k ds edku ds nf{k.k fn'kk esa fLFkr pcwrjs ds ckgj cuh ukyh tks ifjf'k"V ^^[k^^ ^^x^^ ^^u^^ esa fn[kkbZ nsrh gS oknhx.k ds LokfeRo dh gS \ 2- D;k mDr fookfnr ukyh ds nf{k.k esa utqy dh ljdkjh tehu gS \ 3- D;k oknh ds pcwrjs ls yxh Hkwfe izfroknh x.k ds LokfeRo ,oa vkf/kiR; dh gS\ 4- lgk;rk ,oa O;;A"
(iv) The trial Court appointed the Commissioner who submitted the report on 17.4.1989. As per the said report, the defendants have constructed a Wall on the South side of the house of the plaintiffs. The construction appears to be a new 3 S.A. No. 212/2001 construction and as per opinion of the Commissioner, at present, there is no evidence of drainage on the spot, but no findings can be given that before construction of the wall, any drainage was there.
(v) In support of the plaint, the plaintiffs examined plaintiff No.1 - Tejmal Jain and got exhibited 29 documents as Ex. D/1 to D/29. The defendants examined defendant No.1 - Rameshchandra and got exhibited 3 documents as Ex. D/1 to D/3.
(vi) After appreciating the evidence came on record, learned trial Court vide judgment dated 7.7.1994 has recorded the finding that the defendants have failed to prove their ownership of the land over which the wall has been constructed. The plaintiffs have also failed to prove their ownership of the land over which drainage was there. It has also been held that the land on which the wall has been constructed neither belongs to the defendants nor to the plaintiffs, but the same is a Government land. The plaintiffs have failed to prove their enjoyment of easementary right for 30 years, therefore, dismissed the suit.
(vii) Being aggrieved by the aforesaid dismissal of the suit, the plaintiffs preferred Civil Regular Appeal No.27A/1994. Vide judgment dated 30.11.1998, learned first appellate Court has allowed the appeal and decreed the suit in favour of the plaintiffs.
(viii) Being aggrieved by the aforesaid judgment dated 30.11.1998, the defendants preferred S.A. No.558/1998 before this Court. Vide order dated 15.1.1999, this Court admitted the appeal on the following substantial question of law :
4 S.A. No. 212/2001"Whether the appellate Court below erred in law in not allowing the appellants to assail adverse findings on certain issues against them on the ground that the appellants have not preferred any appeal or cross-objection against those findings?"
This Court answered the aforesaid question of law in favour of the defendants that they were entitled to challenge the adverse findings without preferring any appeal or cross-objection and accordingly set aside the judgment dated 30.11.1998 and remanded the case to the lower appellate Court.
(ix) After the remand, learned first appellate Court again vide judgment dated 23.3.2001 has set aside the judgment and decree dated 23.3.2001 and decreed the suit in favour of the plaintiffs by directing the defendants to remove the wall in disputed as mentioned in green colour in Ex. P/11. They have also been restrained from raising any of the construction after demolition of the wall.
3. Being aggrieved by the aforesaid judgment and decree, the defendants have preferred the present second appeal before this Court. By order dated 28.3.2002, this Court has admitted the appeal on the following substantial questions of law:
"1) Whether learned 1st appellate court erred in law in applying S. 13 of the Easement Act to the instant case?
2) Whether the decree of the 1st Appellate Court is sustainable without impleading the government as party?"
4. I have heard Shri H.Y. Mehta, learned counsel appearing for the defendants and Shri S.S. Garg, learned counsel 5 S.A. No. 212/2001 appearing for the plaintiffs at length and perused the record.
Finding on Substantial Qustion of Law No.2 -
5. According to the defendants, the wall in question has been constructed over the Government land, therefore, the Government was a necessary party in the civil suit. In the written statement, no such objection was raised by the defendants that the suit suffers from non-joinder of necessary party and the State Government is a necessary party. They came up with a specific plea that they have constructed the wall over their own land as they are in possession of the same. There is no Government land. Since the defendants have failed to prove their ownership over the land in question so also the plaintiffs have also failed to prove their ownership over the land, therefore, the trial Court has held that it is a Government land. Against the aforesaid findings recorded in judgment and decree dated 7.7.1994, only the plaintiffs preferred the first appeal. Learned first appellate Court vide judgment and decree dated 30.11.1998 has affirmed the findings that the land is situated on the South side of the plaintiffs' house is the Nazul land, decreed the suit and directed the defendants to remove the wall. The defendants got the judgment and decree dated 30.11.1998 set aside in S.A. No.558/1998 and got the matter remanded back in order to assail the findings recorded against them by the learned civil judge . After the remand, the burden was on the defendants to establish that they are owner of the land in question. Since, they did not lead any evidence to establish their title, therefore, learned first appellate Court vide judgment and decree dated 23.3.2001 has rightly affirmed the said findings and held that it is a 6 S.A. No. 212/2001 Government land, in which, the defendants have constructed the wall. Now, the defendants came up with the plea in this appeal that it is a Government land and without impleading the Government, the decree cannot be passed in favour of the plaintiffs. Since this issue had never been raised by the defendants before the trial Court as well as before the first appellate Court therefore they are estopped from raising this plea before this Court . They specifically contested the suit as well as appeal on the ground that they are owners of the land. Even otherwise, the plaintiffs filed the suit for permanent injunction against the defendants as they have constructed the wall over the land infringing their right get to air, disposal of rainy water, drainage, etc. No relief has been claim against the State Government. The plaintiffs are dominus litis, in their case and they only challenged the illegal action of the defendants, therefore, the State Government is not a necessary party. Thus, the Substantial Question of law No.2 is answered against the defendants.
Findings on Substantial Question of Law No.1 -
6. Learned trial Court dismissed the suit of the plaintiffs only on the ground that they have failed to prove their ownership the land in question on which the wall has been constructed, therefore, by the aforesaid construction; their easementary rights are not going to be infringed. The plaintiffs have also failed to prove that they are in possession since last 30 years and enjoying the easementary right. The plaintiffs filed the suit for permanent injunction that the defendants be restrained from raising the wall which is causing obstruction on drainage of rainy water and the right of air to them which they were enjoying by way of 7 S.A. No. 212/2001 easementary right. Learned trial Court has recorded the findings that the defendants have failed to prove their ownership over the land and they have no right to construct the wall over the Government land. Even if the provision of Easement Act are not applicable to the present case, but the principle of easement can be applied in a suit for permanent injunction if the plaintiffs are denied use of his property and the neighbour or any other person can be restrained by the Court who is causing such obstruction. Between the house of the plaintiffs and defendants, there is a land admeasuring 30 x 60 ft. and it has been established that the defendants have constructed a wall over the Government land which is adjacent to the platform and toilet of the plaintiffs' house situated in the South side and before construction of the wall, there was a drainage in which rainy water was used to be flown. The defendants had no right to construct the wall over the drainage and cause nuisance and they have no right to obstruct the easementary right of the plaintiffs. The issue is whether the learned trial Court has rightly applied the provisions of Section 13 of the Easement Act? In Para 42 of the judgment, learned first appellate Court has mentioned that the grandfather of the defendants sold the house to Mangilal who sold the same to Manmal and who in turn sold the same to the plaintiffs. Therefore, easementary rights attached to the said house were also transferred to the plaintiffs. Provisions of Section 13 apply where one person transfers or bequeaths immovable property to another and sub-section (a) provides that if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee shall be entitled to such easement. Therefore, learned first 8 S.A. No. 212/2001 appellate Court has not committed any error in granting the decree in favour of the plaintiffs by applying the provisions of Section 13 of the Easement Act.
7. The learned trial Court has dismissed the suit by recording the findings that the plaintiffs have failed to prove that their easementary right are being violated by the defendants. But, the learned first appellate Court has recorded the finding that the conduct of the defendants is violating the easementary right of the plaintiffs. Thus, Substantial Question of law No.1 is also answered against the defendants.
8. In view of the foregoing discussion, in the opinion of this Court, no question of law much less substantial question of law is involved in this appeal. The appeal fails and is hereby dismissed. The judgment and decree passed by the learned first appellate Court stands affirmed.
No order as to costs.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2019.09.21 16:03:34 +05'30'