Madhya Pradesh High Court
Imtiyaz Beg vs A. Hamid Khan on 4 September, 2017
1
S.A. No.373/2016
04.09.2017
Shri Jyoti Swaroop Dave, learned counsel for the
appellant.
Heard on the question of admission.
Appellant/defendant has filed the present appeal
being aggrieved by the judgment and decree dated
31.10.2014 by which the Civil Suit filed by
respondent/plaintiff has been decreed and judgment dated
13th April, 2016 by which the First Appeal filed by him has been dismissed.
2. Facts of the case are as under for disposal of this appeal :-
(A) Respondent here-in-after referred as "plaintiff" has filed a suit for permanent injunction against the defendant that he be directed not to create obstruction to the plaintiff to use the common lane behind their houses and he further directed to keep the channel gate open. As per pleading in the plaint that one Harishankar Pathak was the owner of the house, who sold the same to Joravar in the year 1976.2
Thereafter Joravar has sold the said house to the plaintiff by registered sale deed dated 08.09.1998. Behind the said house there is a common lane measuring 70 ft. x 5 ft.. The length of the lane is 72 ft. from east to west and width of the lane is 5 ft. from north to south. On east end of the lane the house of the plaintiff is situated on north side and house of the defendant is situated on south side. It is further pleaded in the plaint that the plaintiff from the period of his predecessor is using the said lane for the purpose of cleaning and whitewashing of the house. In the year 2011 the defendant tried to obstruct him to use the said lane. The dispute was resolved by way of intervention from the local resident. The defendant has executed a consent letter on a stamp paper. On 04.08.2011, the defendant has again started construction on the east side of the said lane. The plaintiff made a complaint to the Municipal Corporation, Shujalpur and issued a notice to the defendant also. Thereafter the defendant has threatened him that he will make a pakka construction over the said lane then it has become 3 necessary for the plaintiff to file the civil suit. (B) After notice the defendant filed a written statement denying the averment made in the plaint. He has raised a plea that in absence of claim of relief of declaration of easementry right the present suit is not maintainable. He has stated that he purchased the said house from Hemraj vide registered sale deed dated 15.12.2000. The plaintiff has never used the said lane. For the purpose of security he has put the channel gate with the consent of plaintiff as both are close relatives.
(C) On the basis of pleading the trial court has framed two issues for adjudication.
(D) In support of the plaint, the plaintiff examined Hamid as PW-1, Jumma Shah as PW-2 and Munshi Khan as PW-3. In support of the written statement the defendant examined himself as DW-1, Bashir Beg as DW-2 and Ratan Singh as DW-3. The plaintiff has got exhibited photographs of lane as Ex.P/1 and Ex.P/2, sale deed between Harishankar and Joravar as Ex.P/3, sale deed 4 between Joravar and plaintiff as Ex.P/4, complaint to S.D.O., Municipal Corporation as Ex.P/5 and Ex.P/6, map of the spot as Ex.P/7, sale deed between Hemraj and defendant Ex.P/8, affidavit of Hemraj as Ex.P/9. (E) The learned Civil Judge vide judgment and decree dated 31.10.2014, decreed the suit in favour of the plaintiff by directing defendant to keep the lock of channel gate be opened and not to restrain plaintiff to use the said lane by way of any construction. The learned trial court has recorded the finding that the defendant has failed to prove that the lane belongs to him because there is no mention about the said lane in Ex.P/8. (F) Being aggrieved by the judgment and decree dated 31.10.2014 the defendant preferred a First Appeal before the District Judge. Vide judgment dated 13.04.16 the First Appeal has been dismissed and the judgment and decree of trial court has been affirmed.
(G) Being aggrieved by the dismissal of the First Appeal the appellant/defendant has preferred this Second Appeal. 5
3. I have heard Shri Jyoti Swaroop Dave, learned Counsel for the appellant. Shri Dave submits that the learned Civil Court as well as Appellate Court has committed error of law as well as of fact by decreeing the suit of the plaintiff. The plaintiff has claimed the relief of permanent injunction without claiming the relief of declaration of easementry right. The learned trial court has wrongly shifted the burden on the defendant to prove that the lane belongs to him. Being a plaintiff, he was required to prove his case. The burden has wrongly been shifted to the defendant. Hence, the present appeal is liable to be admitted on the following substantial questions of law :-
¼v½ D;k izdj.k ds rF;ksa ,oa ifjfLFkfr;ksa esa fcuk LoRo ?kks"k.kk rFkk lq[kkf/kdkj dh ?kks"k.kk dh lgk;rk ds fcuk oknh dk okn izpyu ;ksX; ekuus esa fo}ku vf/kuLFk U;k;ky;ksa us dkuwuh =qfV dh gS \ ¼c½ D;k izdj.k ds rF;ksa ,oa ifjfLFkfr;ksa esa fcuk dCts dh lgk;rk ds oknh dk okn dsoy LFkk;h fu"ks/kkKk dk izpyu ;ksX; ekuus esa fo}ku vf/kuLFk U;k;ky;ksa us dkuwuh =qfV dh gS \ ¼l½ D;k oknh dks viuk okn Lo;a ds cycwrksa ij fl) djuk Fkk bl ij fopkj uk djus esa fo}ku vf/kuLFk U;k;ky;ksa us dkuwuh =qfV dh gS \ ¼n½ D;k oknh us viuh IyhfMax dks izqo ugha djrs gq, Hkh fo}ku vf/kuLFk U;k;ky;ksa us okn fMdzh djus esa dkuwuh =qfV dh gS \ ¼b½ D;k /kkjk 102 lk{; vf/kfu;e dh O;k[;k 6 dj xyr fu"d"kZ nsus esa fo}ku vf/kuLFk U;k;ky;ksa us dkuwuh =qfV dh gS \ ¼Q½ D;k izdj.k esa izLrqr ekSf[kd ,oa nLrkosth lk{; ds foijhr fu"d"kZ nsus esa fo}ku vf/kuLFk U;k;ky;ksa us dkuwuh =qfV dh gS \ ¼x½ D;k fo}ku vf/kuLFk U;k;ky;ksa }kjk ikfjr fu.kZ; ,oa fMdzh fof/k&fo/kku ds foijhr gS \
4. Neither plaintiff nor defendant both have claimed that they are owner of the lane. In the sale deed executed between Harishankar Pathak to Joravar and Joravar to the plaintiff, there is a mention of open lane (Ex.P/3 and Ex.P/4). The plaintiff has got exhibited the sale deed executed between Hemraj and the defendant by which the defendant has purchased the house constructed over 768 sq.ft.
5. The defendant No.1 in his evidence has held that when he purchased the house the said lane was already available and the said lane was being used by Hemraj also. He has paid the sale consideration to Hemraj for house and lane both but in the sale deed (Ex.P/8) there is no mention of sale of lane. In Para 10 of cross- examination he has also admitted that behind the house of plaintiff and the defendant there is a lane of 5 ft. x 50 ft. 7 and which is the same lane on which he has put the channel gate. The learned Trial Court has rightly came to the conclusion that defendant has failed to prove that he purchased the lane by registered sale deed (Ex.P/8). He has not examined Hemraj, who is still alive. The First Appellate Court has also held that the plaintiff has failed to prove from his evidence that the lane which the plaintiff and defendant were using has been closed by the defendant by way of channel gate.
6. Para 18 and 19 of judgment of Appellate Court are reproduced below :-
18- oknh us tks lk{; izLrqr fd;k gS] mlls ;g izekf.kr gksrk gS fd fookfnr LFkku ij xyh gS] ftldk mi;ksXk oknh vkSj izfroknh nksuksa gh djrs Fks] ysfdu izfroknh us mls psuy xsV yxkdj can dj fn;k gS vkSj vc oknh ds ikl viuh nhoky dh ejEer ds fy, ;k ihNs dh rjQ tkus ds fy;s jkLrk ugha gS] tcfd izfroknh ;g izekf.kr ugha dj ik;k gS fd xyh mlds LoRo dh gS A ;g Hkh mYys[kuh; gS fd lsyMhM esa izfroknh us crkSj lk{kh gLrk{kj Hkh fd, gSa rc Hkh mls ;g Kku ugha Fkk fd xyh dk mi;ksx nksuks i{k djrs gSa A izfroknh us ;g Lohdkj fd;k gS fd mlus xyh dks psuy xsV ls can dj fn;k gS A ;fn ;g rdZ ds fy;s eku Hkh fy;k tkos fd nksuksa dh lgefr ls psuy xsV yxk] rc Hkh izfroknh oknh dks mDr xyh esa vkus&tkus ls ugha jksd ldrk A ;fn 20&22 lky igys psuy xsV yxk gksrk] rc mldk mYys[k mlds ckn dh jftLVªh esa gksrk A fopkj.k U;k;ky; esa /kkjk 102 lk{; vf/kfu;e dh mfpr O;k[;k dh gS A ;fn izfroknh ;g dgrk gS fd oknxzLr xyh mldh gS vkSj 8 ml ij oknh ds vkus&tkus dk dksbZ gd ugha gS rks bls izekf.kr djus dk Hkkj izfroknh ij gS A 19- gsejkt dk dFku izdj.k esa izfroknh us ugha djk;k gS] tcfd izfroknh ds edku dk fodzsrk gsejkt gS A ;fn mlus izih-9 dk 'kiFk i= fn;k rks mlds rF;ksa dk mYys[k lsy MhM esa D;ksa ugha fd;k A tgka dksbZ fyf[kr nLrkost gksrk gS] ogka mldh varjoLrq ds lR; gksus dh mi/kkj.kk dh tkrh gS vkSj mldh ekSf[kd lk{; vioftZr gksrk gS A bl laca/k esa fopkj.k U;k;ky; us fof/k vkSj rF;ksa dh mfpr O;k[;k dh gS A xyh esa ;fn yacs le; ls vkuk&tkuk dj jgk gS vkSj ;fn xyh ij fdlh Hkh nLrkost ;k lk{; ls izfroknh ds LoRo dk irk ugha pyrk gS A ,slh fLFkfr esa Hkh xyh ds mi;ksx dk vf/kdkj oknh dks izkIr gS vkSj blds fy;s i`Fkd ls xyh ds LoRo dh ?kks"k.kk dk vuqrks"k oknh ds }kjk ekaxs tkus dh vko';drk ugha gS A The plaintiff was not required to claim the relief of declaration of easementry right because the lane does not belongs to the defendant. The case of the plaintiff is that the said lane is a common lane which the plaintiff and defendant were using. The defendant has failed to prove his ownership over the lane, therefore, the plaintiff was not required to claim the declaration of easementry right.
In view of the law laid down by the Apex Court in the case of Anathula Sudhakar V/s. P. Buchi Reddy (dead) by Lrs & ors. reported in (2008) 4 SCC 594 the suit simplicitor seeking injunction is maintainable. The plaintiff was not required to seek declaration of 9 easementry right, the houses of others are also situated along with houses of plaintiff and defendant.
7. I do not find any substantial question of law involved in this appeal, hence, the appeal is dismissed.
C.c. as per rules.
(Vivek Rusia) Judge ns