Patna High Court
Smt. Maan Kaur And Ors. And Anisur Rahman ... vs Rizwanur Rahman And Ors. on 24 May, 1996
Equivalent citations: 1996(2)BLJR1519
Author: Prasun Kumar Deb
Bench: Prasun Kumar Deb
JUDGMENT Prasun Kumar Deb, J.
1. Both these appeals are taken up together for disposal as they arise out of the common judgment passed by the Additional Judicial Commissioner, Ranchi, in Title Appeal No. 106/1975 and Title Appeal No. 124 of 1975. The plaintiff-respondent No. 1 namely, Bilquin Jamai Begum filed Title Suit No,, 192/21 of 1972/75, before the Subordinate Judge, Ranchi, for a decree for demolition of the top projections over the windows of defendant No. 1's building on the first floor and for closure of all openings on the ground floor and first floor of the defendant No. 1's building on the northern wall and also prayer has been made for perpetual injunction against both the defendants restraining them from tress-passing upon the plaintiffs passage. The suit was contested by both the application who were defendant No. 1 and 2 in the ' original suit by filling separate written statements. Defendant No, 2 Sardar Darshan Singh is admittedly a tenant in a portion of the building belonging to defendant No. 1 while he is also a tenant in another building just opposite to gate of the plaintiff under the plaintiff.
2. Plaintiff's case is that the acquired two pucca buildings together with some Parti land measuring eighteen (18) Kathas and thirteen (13). Chhataka comprised within northern position of Municipal Survey Plot No 670 bearing Old Municipal holding No. 230 and 231 corresponding to new Municipal holding No. 347, 348 and 349 of Ward No. III of Ranchi Municipality by virtue of a registered deed of gift dated 2.6.49 executed in her favour by her father Seikh Abdul Gafur and came in possession thereof. One of the said buildings stands on the front portion of the land gifted facing the main road of Ranchi Town and the other building towards Hind portion of the land. Towards the southern side of the said building, there is seven and half feet (742 ft.) wide passage running from east on the main road to the Western extremity of the building on She hind portion in order to provide means of access thereto from the main road. That land also forms a part and parcel of the gifted land of the plaintiff and according to the plaintiff, since the date of gift she is in continuous possession thereof by herself and also through her tenant in the buildings, The suit land is a strip of land having a passage like road running north to south in between the said two building joining the south passage as mentioned above. This strip of land in between the two buildings ceased to exist as the plaintiff constructed structure thereon. The windows and doors of the plaintiffs buildings on the hind portion were opened towards the southern passage and on a subsequent date, the plaintiff constructed a building on the south of the said southern passage facing the main road and let out the same to a Tailoring shop. The remaining portion of the southern passage is still in the possession of the plaintiff through her tenants. It has further been contended by the plaintiff that the different No. 2 Sardar Darshan Singh is a tenant of the plaintiff occupying the building on the front side and also of the newly constructed godown which have been separately leased out to defendant No. 2 Defendant No. 1 Anisur Rahman has his building contiguous South of the disputed passage and the northern most wall of the said building stands on the southern side of the plaintiff's passage close to the boundary wall of the plaintiff. According to the plaintiff defendant No. 1 started constructing the first floor of his said building on the old foundation and in course of construction thereof has made eleven openings in the shape of windows on the northern wall of the first floor of the building and has further made top projections (Chhajja) over the said windows to the extent of about two feet of the eight windows over the passage in question. It has further been contended that the defendant No. 1 Rahman has made fresh opening by constructing a door and two windows on the northern most wall of his building in the ground floor towards the plaintiff's passage. According to, the plaintiff, those opening made by the defendant No. 1 Anisur and defendant No. 2 caused nuisance and discomfort to the plaintiff and during the rainy reason, water from the top projection of the windows generally falls upon the passage causing the same muddy and filthy. Plaintiff raised objection towards such construction, but neither the defendant No. 1 nor the defendant No. 2 who is a tenant in the building of the defendant No. 1 paid any heed to the objection raised by the plaintiff and hence the suit with the reliefs as mentioned above was filed.
In the written statement separately filed by the defendants, it was pleased that the said passage was never in exclusive possession of the plaintiff. The predecessor of the plaintiff had given permission by agreement to the defendant No. 1 predecessor to possess the same passage alongwith others and for last 40 years since the days of predecessor of defendant No. 1 the said passage is being possessed not only by the defendant No. 1 but also by others. Defendant No. 2 also pleaded the same being the tenant of defendant No. 1 and the same plea taken by the defendant No. 1 was available to the defendant No. 2 having the tenant of defendant No. 1 by stepping into the shoes of his landlord. There is also alternate contention of the defendants that by constant user they have acquired easement right over the passage. An attempt has been in the written statement towards confusing the identify of the passage with another passage which was shown in the plan while getting sanction from the Municipal Board for construction of the building and the construction of the building of the predecessor of the plaintiff was sanctioned when it was agreed upon by the plaintiff's predecessor giving access to the other persons of the locality to take water form a well within that passage.
4. In the suit, a Pleader commissioner was appointed and his report was also accepted and the evidence of the Pleader Commissioner was also taken. It could be found by both the Courts that confusion tried to be created by the defendants with another passage having well have no connection with the suit passage.
5. Both the parties adduced evidence before the original court and several issues were framed in the suit. The main contention of the defendants was of his permissive right on the basis of the agreement arrived at long before between the processor of the plaintiff and that of the defendant No. 1 Although said agreement was averred in the written statement but no specific statement was made about existence's of a written agreement between the two predecessors. During the course of trial, n written paper was produced from the side of the defendants which was marked as Exhibit-F in the case alleged to be signed by Abdul Gafur, the predecessor-in-interest of the plaintiff. The original court rejected that document finding it not to be a genius one and the suit was decreed against the defendants No. 1 and 2. On appeal being preferred as mentioned above, the first Appellate Court also maintained the same finding as arrived at by the original court on independent scrutiny of the evidence and document on record.
6. In the Second Appeal at the time of admission, by order dated 28.11.80 following substantial question of law was formulated:
Whether a right of easement can be created only by a registered document?
Such question of law was formulated by the Additional Registrar, as per Patna High Court Rules prevailed at that time. But unfortunately, on going through the materials on record, I fail to find any nexus such substantial question of law being framed in the facts and circumstances of the case.
7. Both the courts have held that document (Exhibit-F) is not a genuine one and has been manufactured for the purpose of creating a right in favour of the defendants. Besides that Exhibit-F, the independent evidence laid showing the continuance uninterrupted enjoyment and right of ingress and agrees over the passage by the defendants or their predecessor could not be proved by any cogent or reliable evidence.
8. Mr. P.C. Roy appearing for and on behalf of the appellants tried to impress upon that court by making the submission on Exhibit-F itself. The legality of Exhibit-F has also been questioned besides its genuinity by Mr. N.K. Prasad appearing for and on behalf of the respondents. Exhibit-F is not a document creating any right. At best, it may be considered as giving some liberty to some persons regarding access to the passage. There is no parting of the right and title over the passage by the creator of that document even if the same being considered as a genuine one. In considering the genuinely of the document, when both the courts have concurrently found the same to be an ungenuine one and manufacturing for the purpose of the suit, there is little scope of this Court sitting in the Second Appeal to re-appraise the evidence on record when it could not be shown that there is any non-reading or mis-reading of the evidence on record by the courts below. But there are also inconsistent pleas by the defendant in the suit when on one hand, they took the plea of permissive possession, on the other hand they have taken the plea of right of easement. Easement Act is not applicable in the State of Bihar, but its principle are taken on senses for the purpose of giving relief equitably if the right of passage are being obstructed. In this case, nowhere it has been shown by the defendants that they had no access to the main road except this passage. Moreover, they had not prayed much about the ingress and agree through that passage. In that way, the defendant can not have right to create any obstruction over the suit passage where the plaintiff has got the exclusive right.
9. In view of the above position, I do not find any force in these Second Appeals.
10. In Second Appeal No. 85/79 (R), a petition has been filed by the appellant under Order XXII, Rule 10 of the C.P.C. for impleading of purchasers of different No. 1 Anisur Rahman, as it has been stated that during the pendency of the appeal, defendant No. 1 Anisur Rahman has sold away all his properties to the persons whose names were intended to be substituted in the appeal. Such sort of purchase is hit by Lis pendense. If such purchasers have purchased the buildings of defendant No. 1 with the knowledge of this suit, they are bound by the decision arrived at in the suit. I do notified any ground to get the purchasers impleaded in this Second Appeal.
11. It may be mentioned that the original plaintiff Bilquis Jamal Begum died during the pendency of the Second Appeal and her heirs have been substituted and memo of appeals have been corrected accordingly.
12. I do not find any force in these Second Appeals and hence both the appeals are rejected.
13. No order as to costs.