Madhya Pradesh High Court
Abdul Sattar vs Laxman Pd. & Ors on 9 July, 2012
Equivalent citations: AIR 2012 MADHYA PRADESH 168
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Second Appeal No.610/1995
Abdul Sattar................................................ Appellant
Versus
Laxman Prasad and others.......................... Respondents
For the appellant : Shri R.K.Thakur, Advocate
For the respondents: Shri Ajay Raizada, Advocate
No.1 & 2
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Present: Hon'ble Mr.Justice Alok Aradhe
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JUDGMENT
(09.07.2012) This appeal has been preferred by the defendant who has lost in both the courts. This Court vide order dated 02.11.1995 while admitting the appeal had formulated following substantial questions of law:-
"1. Whether in the facts and circumstances of the case the courts below were justified in granting decree in favour of the plaintiffs on the strength of the easementary right when the proper pleadings regarding easement and user were not there?
2. Whether in the facts and circumstances of the case first appellate Court was justified in dismissing the appeal of the defendant, without considering the pleadings and the total evidence of the parties, merely on the strength of map?"
2. Facts giving rise to filing of the appeal briefly stated are that the plaintiffs filed the suit seeking relief of declaration, 2 permanent injunction as well as mandatory injunction. The claim in the suit is based on the ground that the plaintiffs and defendants are neighbours. On the northern side of the plaintiffs' house a passage which is 5 feet in width is situate. The aforesaid passage is being used by the plaintiffs as well as by the residents of the locality for past several years. However, the defendant No.1 caused obstruction in the plaintiffs' right of way over the passage in question in respect of an area show in yellow and pink colour in the plaint map. It is further pleaded that defendant has encroached an area admeasuring 1 feet X 19 feet Accordingly, the suit seeking relief of declaration that plaintiffs have acquired easementary right to use the passage in question was filed. The plaintiffs also sought the decree for mandatory injunction for removal of encroachment as well as permanent injunction restraining the defendants from causing obstruction over the right of the plaintiffs to use the passage.
3. The defendant No.1 filed the written statement in which the plaint map was denied. It was further pleaded that the passage in question, in fact, is not in existence. It was also pleaded that the area marked with red colour was kept open for the purpose of 'Nistar' of plaintiffs and defendant No.1. The defendant No.1 also denied that he has made any encroachment on the passage in question. The defendant No.2 in her written statement denied the averments made in the plaint and stated that she has not made any encroachment on the passage in question.
4. The trial Court vide judgment and decree dated 24.8.1994 by taking into account the statement of plaintiff who was examined as PW.1, Shivnarayan (PW.2), Ashok Kumar (PW.3) and Sharif Shah (PW.4), held that the passage in question is in existence between the houses of the plaintiffs and the defendants which is 5 feet in width. The trial Court further held 3 that the defendant No.1 in his statement has admitted that the passage of 5 feet in width is in existence. It was further admitted by defendant No.1 that in another civil suit a map (Exhibit-D-2) was filed which shows that passage of 5 feet in width is in existence between the houses of the plaintiffs and defendants. The trial Court on meticulous appreciation of evidence, recorded a finding that defendants are causing obstruction in the right of the plaintiffs to use the passage in question. The trial Court granted decree for declaration that plaintiffs have the right to use the passage of 5 feet in width. However, instead of granting decree of mandatory injunction the trial Court held that the aforesaid passage shall be available for ingress and egress adjacent to the courtyard of the defendant No.1. In appeal, the decree passed by the trial Court was affirmed.
5. Learned counsel for the appellant submitted that there is not specific pleading with regard to right of easement and, therefore, the courts below have committed an error of law in decreeing the suit filed by the plaintiffs. On the other hand, learned counsel for the respondents submitted that the matter stands concluded against the appellant by concurrent findings of fact which do not call for any interference of this Court in exercise of powers under Section 100 of the Code of Civil Procedure.
6. The jurisdiction of this Court to interfere with the findings of fact under Section 100 of CPC is limited to the case where the finding is either perverse or based on no evidence. This Court cannot interfere with the concurrent finding of fact until or unless the same is perverse or contrary to material on record. [See: Sugani (mst.) v. Rameshwar Das and another, (2006) 11 SCC 587, Gurdev Kaur v. Kaki, (2007) 1 SCC 546, Praksah Kumar 4 V.State of Gujrat, (2004) 5 SCC 140, Thiagarajan and Others v. Sri Venugopalaswamy B. Koil and Others, (2004) 5 SCC 762 and Narayanan Rajendran and another v. Lekshmy Sarojini and Others, (2009) 5 SCC 264] It is equally well settled in law that this Court in exercise of power under Section 100 of the Code of Civil Procedure cannot re-appreciate evidence. [See:Thimmaiah and Others v. Ningamma and Another, (2000) 7 SCC 409] and where on appreciation of evidence, even if two view are possible, this Court in exercise of powers under Section 100 of the Code of Civil Procedure would not interfere. [See: Kondiba Dagadu Kadam v. Savitribai Sopan Guzar and others, (1999) 3 SCC 722 and Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134]. It has further been held by the Supreme Court that interference with a finding of fact is not permissible. [See: Basayya I. Mathad v. Rudrayya S. Mathad and Others, (2008) 3 SCC 120] In S.Appadurai Nadar & another v. A. Chokalinga Nadar and Another, (2007) 12 SCC 774 it has been held by the Supreme Court that in exercise of power under Section 100 the Courts should be slow in reversing the finding of fact. The finding of fact even if erroneous would not be disturbed in second appeal unless the finding is shown to be perverse and based on surmises and conjectures. [See: Kulwant Kaur and others v. Gurdial Singh Mann and others, (2001) 4 SCC 262, Hafazat Hussain v. Abdul Majeed and others, (2001) 7 SCC 189 and Bharath Matha v. R. Vijay Rengandathan, (2010) 11 SCC 483].
7. The trial Court on the basis of witnesses of the plaintiffs have recorded a finding that passage of 5 feet in width is in existence between the houses of the plaintiffs and defendants. The trial Court while recording the 5 aforesaid finding has also taken into account the admission made by the defendant No.1 that passage of 5 feet in width is in existence between his house and the houses of the plaintiffs. The trial Court has relied on the map (Exhibit-D-2) which was admittedly filed by defendant No.1 in another suit which shows that the passage in question is in existence. The plaintiffs have made averments with regard to acquisition of easementary right in paragaraphs 2 & 5 of the plaint. The lower appellate Court in paragraphs 5 & 6, has referred to statements of witnesses as well as report submitted by the Commission while affirming the findings recorded by the trial Court. From perusal of paragraphs 2 & 5 it is apparent that plaintiffs have made averments with regard to acquisition of easementary right. Therefore, the courts below have not committed any error in granting decree in favour of the plaintiffs. Accordingly, the first substantial question of law is answered.
8. From paragraphs 5 and 6 of the judgment of lower appellate Court it is apparent that the lower appellate Court has referred to statements of witnesses as well as Commissioner's report. The findings recorded by the lower appellate Court are not merely based on the map. Accordingly, the second substantial question of law in answered.
9. In the result, the appeal fails and is hereby dismissed with costs.
(Alok Aradhe) Judge RM