Gujarat High Court
Maniben vs Manjulaben on 24 November, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SA/121/1993 15/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 121 of 1993
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MANIBEN
WD/O.CHHOTUBHAI SHANKERBHAI PATEL - Appellant(s)
Versus
MANJULABEN
WD/O VITHALBHAI V. & 8 - Defendant(s)
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Appearance
:
MR
GIRISH D BHATT for
Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5
MR AJ PATEL
for Defendant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 - 6.
- for
Defendant(s) : 7 - 8, 8.2.1, 8.2.2,8.2.3 - 9,9.2.1
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 24/11/2010
ORAL
ORDER
Heard learned advocate Mr. GD Bhatt on behalf of appellant, learned advocate Mr. AJ Patel appearing for respondent.
The Patel Chhotubhai Shankerbhai appellant original defendant no. 1 died on 5/1/1994 during pendency of Second Appeal. Thereafter, legal heirs and representative of appellant are brought on record while filing civil application no. 7530/1997 which has been granted by this Court on 25/2/1999. In this appeal, appellant has challenged judgment and decree passed by Civil Judge (JD), Umreth in Regular Civil Suit no. 39/1976 which suit was filed on 7/2/1976 and decided on 15/10/1985 in favour of plaintiff with a direction to present appellant while allowing suit which has been declared that premises belonging to plaintiffs on western side wall from north to east and west 4ft and on southern side 2ft 3inch wada/nala belonging to plaintiff which was kept open for repairing wall on western side. In said nala defendant present appellant is not having any ownership or occupation right and therefore, it was ordered to defendant present appellant that aforesaid nala is to be kept open and during rainy season for discharging of rainy water is to be fallen from Navela to this nala must have to be allowed to pass and on western side of suit premises whatever slab and pillar has been put up by defendant present appellant is required to be taken away and in future also no such construction is to be permitted to be carried out to defendant present appellant and not to restrain right of plaintiff to use aforesaid nala/wada as per exh 64 map, defendant present appellant is not entitled to carry out any construction in nala and whatever construction has been carried out to is to be removed and not to restrain plaintiff for using aforesaid nala in future. In aforesaid terms suit has been allowed and decree has been drawn in favour of plaintiff.
Against which, regular civil appeal has been preferred by present appellant original defendant no. 1 being register no. 194/85 which was registered on 1/11/1985 and decided on 7/3/1991 where appeal preferred by present appellant has been dismissed. Thereafter, present second appeal has been preferred by appellant original defendant no. 1. This Court has considered section 100 subsection (1)(4) of Civil Procedure Code 1960. This Court has admitted second appeal on 18/8/1993 that in present second appeal substantial question of law are involved as under: (a) Has the lower Court misconstrued documents of title? (b) what is effect of misconstruction of documents of title on the findings recorded and conclusion reached by Lower Appellate Court?
I have heard learned advocate Mr. GD Bhatt appearing for appellant as well as learned advocate Mr. AJ Patel appearing for respondent original plaintiff. The section 100 of Civil Procedure Code is quoted as under:
"Section 100: Second Appeal:- 1. Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3)In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4)Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question.
Provided that nothing in this sub section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
In this case, suit has been filed by plaintiffs in respect to suit property situated in village Thamana at Kumbharvada which belongs to plaintiffs. The old number of suit premises given from Grampanchayat is 850, 851, 852 and 853. The defendant has purchased property from one Ambalal Hiralal which property of defendant has been situated on western side of plaintiff premises leaving Navela or nala. This right of occupy nala which found to be vacant has been utilized by plaintiffs since number of years. The grand father and father of plaintiff had filed civil suit in the year 1936 being civil suit no. 271/36 where one map dated 9/12/1936, was produced before Court and in that map Navela has been shown as belonging to plaintiff. The plaintiff no. 7 has purchased property on 17/10/1974 even in that documents open Navela has been mentioned belong to plaintiff. The construction work which has been carried out in Navela by defendant has been objected by plaintiff on the ground that Nala is not belongs to defendant but it belongs to plaintiff which has been very adjoining at western side of suit premises. The defendant has filed written statement vide exh 26 denying averment made by plaintiff in plaint.
Thereafter, issues have been framed by Trial Court vide exh 31. Before that defendant no. 2 has filed written statement against suit exh 84. The issues have been framed by Trial Court whether plaintiff has proved facts as averment made in para 3 of plaint where on western side of suit premises open nala is available or not?. The answer is given by Trial Court is in affirmative. The plaintiff has also proved that support which has been given to premises of plaintiffs on western side, that support has been covered under Nala and similarly rainy water is also passes through as per para 3 of plaint from nala. The aforesaid nala is not belonging to plaintiff no. 7 and plaintiff has not extinguish right of using of nala and this nala/vada is situated in Grampanchayat bearing no. 850 and 854 on southern side which belonging to grand father and father of plaintiff no. 7 and 8 and it is also belonging to plaintiff no. 1 to
6. These are finding of facts considered by Trial Court Umreth after considering exh 64 map as well as evidence of Chhotabhai defendant exh 124. The sale deed in respect to property of defendant has been produced on record exh 48 where measurement is not properly recorded. Even in sale deed in respect to property of defendant there was not mentioned about nala. The plaintiff has examined exh 35 and according to his evidence, since more than 50 years, this nala has been used for passing through rainy water and in support of that one Commissioner Auchhavlal Gordhandas, vide exh 63 was examined and map was produced vide exh 64 along with that note and panchnama also produced vide exh 65. One Commissioner Vaghjibhai Maganbhai Desai was examined vide exh 70 who has proved map exh 71 which was prepared by him. Therefore, Trial Court has appreciated both documents exh 48 where measurement in respect to property of defendant has been given but considering map which was prepared by Commissioner exh 71, measurement which recorded in exh 48 is found to be incorrect. Thereafter, Trial Court has examined factual aspect after considering exh 64 map and come to conclusion that measurement which has been recorded in sale deed exh 48 is found to be incorrect. The Trial Court has also considered that boundary area which has been pointed by defendant is not to be accepted because in each case such boundary can not be considered to be correct. The defendant has not examined earlier erstwhile owner of property and no documents has been produced by defendant for proving facts that whatever measurement has been given in document exh 48 is found to be correct. The defendant has purchased property in the year 1973 from legal heirs of Ambalal Kavi and as per exh 48 document pertaining to year of 1973. The boundary of defendant premises is limited upto Kumbharwada where nala was not covered or even nala has not been mentioned in exh 48. In case if defendant is having any ownership upon nala it must have to be disclosed in exh 48 sale deed of 1973. Therefore, Trial Court has considered that each detail has been given in sale deed exh 48, i.e. one room, Parsal, Chawk, Khadki and open land. The specific description has been given in exh 48 but there was no mentioned about ownership of nala in favour of defendant. Exh 71 map has been proved by plaintiffs while examining Commissioner before Trial Court, who has admitted situation of Navela and land which has been used by plaintiffs since more than 50 years. No doubt, in exh 71 map it is not mentioned about nala but when measurement itself is found to be incorrect in exh 48 sale deed, Trial Court has appreciated both documents properly and rightly and merely Ambalal Kavi was using this nala for keeping horse in nala that has not been given any right to defendant because of adverse possession and section 110 of the Evidence Act is not applicable in view of decision of this Court reported in 6 GLR 529.
The Trial Court has also rightly examined exh 48, exh 71 and exh 64. The Trial Court has also held that decision given by Rajasthan High Court reported in AIR 1976 Raj 162, is not helpful to defendant even considering that easement right of plaintiff has been abolished but after considering aforesaid decision it has been helpful to plaintiff. However, that decision is not applicable to facts of present case. Considering exh 71 map, property belonging to plaintiff and defendant are not at par but that properties are situated in different condition meaning thereby that properties are situated as some portions are going ahead and some are going back means not paralleled. Therefore, situation of nala is some place has became small and other place it has became bigger. Therefore, considering physical situation of nala, it suggests that this nala is not belonging to defendant. This nala was used by plaintiff since more than 50 years from his grand father and father and it has been utilized to pass rainy water as well as to repair western side of wall of suit premises of plaintiff. Therefore, defendant has failed to prove his defence before Trial Court. The Trial Court has also rightly construed exh 48 where premises belonging to defendant is having open land 32ft and 23ft and defendant no. 1 is having southern side and southern side 92ft and eastern and western side 23ft land has been purchased by him, but it is clear finding of fact recorded by Trial Court that this measurement is found to be incorrect on the basis of exh 64 and 71 and also map dated 9/12/1936 produced before Civil Court in Civil case no. 271/36. At the time, when plaintiff has purchased property dated 17/10/1974 at that occasion, on western side open nala was mentioned and after completing nala portion, premises of defendant has been situated. Therefore, Trial Court has properly examined documents for determining question of facts whether nala is belonging to defendant or not? And whether nala which situated on western side of suit premises of plaintiff has been utilized since more than 50 years as per map exh 64 and 71 read with exh 48. These all three documents have been rightly construed by Trial Court in respect to title of defendant exh 48 and Trial Court has not misconstrued document of title of both plaintiff and defendant. After considering aforesaid document as referred above, finding which has been recorded by Trial Court can not consider to be perverse finding or contrary to record.
The Appellate Court has considered this aspect of documents exh 71 map exh 64 and exh 48 and in support of that detailed reasoning has been given and come to conclusion that Trial Court has not committed any error while deciding suit in favour of plaintiff for easmentary right to discharge rainy water through Navela land. The Navela land/vada land is situated towards southern side from plaintiff house. This vada land comes in parallel line of plaintiff and it did not come within parallel line of defendant. The measurement of defendant's house is 20ft to 10ft in width so from this house, disputed vada land did not come towards southern side. The disputed vada land is situated towards eastern side from house of defendant. Therefore, situation also suggested that defendants are not owner of disputed vada land. The documentary evidence as referred above has been rightly construed considering existing position of nala, which has been properly understood by below courts and entire Civil suit has been decided by Trial Court based on facts while considering relevant documents which has been properly construed on the basis of existing condition of disputed land of Navela. Therefore, substantial question of law which has been framed by this Court at the time of admitting present second appeal has been answered by this Court while considering reasoning given by Appellate Court in para 6 to 8, which are quoted as under:
"(6) According to the arguments of L. A. Mr. Dave there is no case of the plaintiffs respondent for easement. Plaintiffs are not claiming the Navela lands as ownership. Mr. Dave, L. A. also argued that it is material to note that there is no doors or windows in the back wall of the houses of plaintiffs. So presumption can arise that the plaintiffs were not using this Navela land. L. A. Mr. N. B. Dave also argued that in the back wall of the plaintiffs there was also at some place mark showing of the roof of defendants which was in existence, therefore, it suggests that the defendants were the owner and occupant and enjoying the Navela land. That is the argument of L. A. Mr. Dave and he also argued that if any rights of the plaintiff for easmontary right while chanding the construction or renovation then any rights of easement extinguish L. A. Mr. Dave also relied on the deposition of Vithalbhai Vallavbhai, P. W. He stated that suit Navela not belongs to anybody. Further, Mr. Dave also argued that in para 9 the witness admits that there is no any window or door in the back wall of plaintiff's wall. The plaintiff's witness Somabhai Lauabhai exh 72. he admits that the Navela land belongs to defendant. L.A. Mr. Dave argued that exh 71 map which was prepared in Civil Suit no. 271/36 (map of old suit) where in the appellants were not party, therefore, documents map exh 71 is not binding to the appellants. L. A. Mr. Dave also argued that the plaintiffs have not mentioned the total area of Navela land. The plaintiffs are not owner of the Navela land, no door, window or any partition behind the back wall of the houses of plaintiffs. The defendant's roof was in Navela land, the roof mark is shown in the wall of plaintiffs. The case of the plaintiffs is that the Navela land is not belong to any parties, therefore, he requested me to allow the appeal and set aside the decree passed in Regular Civil Suit no. 39/76.
(7) L. A. Mr. M-C. Shah argued that the Navela land was being kept for the repairing of the back wall of parties. He heavily relied on the map exh 64. He argued that as per the document of the defendants, the measurement does not tally and Navela land did not cover in the measurement of the registered sale deed of the defendants. Therefore also he submits that the defendants are not owners and possession of the disputed Navela land. Defendants have not produced the old registered sale deed or document. So adverse inference be drawn against them that is the argument of L. A. Mr. M. C. Shah.
(8) I have fully heard both the parties. It has come in the record that one predecessor in title of the defendant Ambabhai Kavi was tethering his horse and there was also roof over the navela land but by using this Navela land for tethering horse. It is material to note that in the registered sale deed of the defendant exh 48 it is not mentioned that the Navela land belongs to the seller of the property of exh 48. the description shown in exh 48 also shows roof, parshal, raveth open place and the entrance and another open place but there is no words written for the Navela land, therefore, it can be said that the Navela land does not belong to defendant or they are not owners of the disputed Navela lands. The measurement shown towards the east and west of the defendant's house does not tally with the registered document exh 48, therefore, also the case of the defendants that they are owners of the Navela land fails and by using the Navela land for tethering horse never gives the title or ownership for the disputed land. It is not disputed that rainy water passes towards from north to south in Navela. So by situation of Navela itself shows that it was being kept for the easementary right of any parties. Then also the plaintiff's suit for easementary right, discharge of rainy water is probable, true and believable under these circumstances. I do not think that the lower Judge has committed any error to decide this suit in favour of plaintiffs for easementary rights to discharge the rainy water through Navela land.
Same way vadaland which is disputed is situated towards the southern side from the plaintiff's house. This vada land comes in the parallel line of the plaintiffs and it did not come within the parellel line of the defendants. The defendants measurement of the house is 20'x10' in width. So from this house this disputed vada land did not come towards the southern side. This disputed vada land is situated towards the eastern side from the house of defendant. So this situation also suggests that the defendants are not owners of the disputed vada land. The oral evidence which is led by the parties is not very material in this case as there is a documentary evidence and facts of the case and looking to the existing position of the Navela. Under these circumstance the present appeal of the appellant fails. I decide point No. 1 in the Negative and point no. 2 as per final order."
In view of aforesaid reasoning given by Appellate Court and substantial question of law framed by this Court while admitting second appeal, according to my opinion, Trial Court has not misconstrued documents of title even Appellate Court has also not misconstrued documents of title and finding which has been recorded and conclusion which has been reached by Appellate Court can not consider to be baseless and perverse.
The inference or appreciation of facts from recitals or contents of a document are question of fact as decided by Apex Court in case of Hero Vinoth (minor) v. Seshammal, (2006) 5 SCC 545.
It is settled law laid down by Apex Court that second appeal finding of fact even if erroneous while generally not to be disturbed unless it is found that finding stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved.
Considering reasoning given by Appellate Court as well as reasoning given by Trial Court while considering recital or contents of a documents and map which are produced by respective parties which based on facts as well as existing condition/situation of properties of both parties as well as disputed nala and measurement recorded in exh 48 in respect to premises of defendant. The both below Courts have only appreciated aforesaid documents exh 64, 71 and 48 on the basis of existing situation of nala. Therefore, both below court has decided question of facts in inference or appreciation of facts from recitals or contents of a document. The finding recorded can not consider to be vitiated on wrong test or on the basis of assumption and conjectures which resultantly comes to perversity.
Therefore, according to my opinion, finding recorded by both below court and reasoning given by both court, there is no perversity in approach of lower court. This Court can not undertake task of re-appreciation of evidence and record findings different then those recorded by the Appellate Court merely because another view is a possible view.
In this second appeal, concurrent finding of facts recorded by both below court, therefore this Court is having very limited jurisdiction to interfere with such finding of fact recorded by below Court. Therefore, contention which has been raised by learned advocate Mr. Bhatt can not be accepted. According to my opinion, both below courts including appellant Court has not misconstrued any of documents as referred above exh 48, 64 and 71 after considering exact condition of nala and also premises of plaintiff and defendant. The finding recorded by courts below is based on documents and it is not contrary to record and it can not consider to be baseless and perverse. Therefore, no error is committed in law by courts below while allowing suits of plaintiff and while dismissing appeal of defendant.
Hence, there is no substance in present appeal. Accordingly, present appeal is dismissed. Interim relief if any stand vacated. No order as to cost.
(H.K.RATHOD, J) asma Top