2009(2) ALL MR 594
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
B.P. DHARMADHIKARI, J.
Vishwanath Welchand Saraf (Since Deceased Through Lrs.)Vs.Smt. Dwarkabai Sadashiv Pawar (Since Deceased Through Lrs.)
Second Appeal No.67 of 1994
28th January, 2009
Petitioner Counsel: Shri. S. G. JOSHI
Respondent Counsel: Shri. B. N. MOHTA
Civil P.C. (1908), S.100 and O.41, R.23 - Second appeal - Remand of the matter - Court has to be loath to remand the matter to the lower Court. (Para 10)
JUDGMENT :- The original - defendant in Regular Civil Suit No.365 of 1985 is challenging the judgment of reversal delivered by the lower appellate Court. The respondents before this Court are the heirs of original plaintiff and appellants are the heirs of original defendants. The suit filed by Smt. Dwarkabai was for permanent and mandatory injunctions. She claimed that she purchased a plot vide sale deed dated 15.3.1979 and the said plot was on its South having lane of 5 feet so as to enable her to approach common service lane situated on the back side of her plot/house. The plot/house of defendant was after that lane. She contended that defendant who claimed to have purchased that plot was duty bound to leave 5 feet portion open to sky for use as lane and by constructing a toilet on said part of land and by erecting a fencing, the defendants obstructed her way to the common service lane. She, therefore, sought injunction directing the defendants to remove said construction and to make available said 5 feet lane. The trial Court found that she could not prove that there was 5 feet lane on South side of her house, she could not prove the user of said lane without any interruptions since 1949 and she also could not prove that the construction of latrine made by him was is any way illegal. The plaintiff then filed Regular Civil Appeal No.151 of 1990 and the Additional District Judge, Akola, vide judgment and decree dated 18.12.1993 found that the lane was mentioned in two sale deeds through which vendor of plaintiff Shri. Jadhao derived title from the original owner Shri. Potdukhe. It appreciated the oral evidence and found that the area of plot was not inclusive of the lane and ultimately it reversed the judgment and decree of trial Court and decreed the suit. This Court has admitted Second Appeal on 21.2.1994 by formulating a substantial question of law which reads : "Whether the first Appellate Court's decision is vitiated on account of non-consideration of oral evidence on record ?"
3. Shri. Joshi, learned counsel has after narrating the facts invited attention to both the judgments to point out that in sale deed of plaintiff executed by Shri. Jadhao, no such lane has been mentioned. He further states that the evidence which has come on record clearly shows that there is no material to show existence of any such lane or its use by the plaintiff. He has read out the relevant portion of the evidence in support of his contentions and he attempts to point out that appreciation of this evidence by the trial Court is proper and that by lower appellate Court is perverse. According to him, when it is an admitted position that plot purchased by the defendants begins immediately after Southern boundary of plaintiff's plot, there is no question of any lane between two plots or then in the land of defendants plot. He has also invited attention to relevant sale deeds i.e. Exhs.84, 85, 95 and 83 in this connection. He points out that suit has been filed on 15.6.1985 and there are no pleadings to establish any right to such lane in it. He, therefore, contends that in view of question of law formulated at the time of admission, the appeal needs to be allowed and the reversing judgment of lower appellate Court needs to be quashed and set aside and that of trial Court needs to be restored.
4. Shri. Mohta, learned counsel for the respondent, on the other hand, states that the evidence on record has been correctly appreciated and the findings reached by lower appellate Court cannot be labelled as erroneous or perverse. He points out that in sale deeds Exhs.84 and 85 executed by original owner Potdukhe in favour of Jadhao (also known as Deshmukh), the said lane on Southern side is also clearly mentioned. He further states that existence of lane on Southern side is also appearing in sale deed dated 15.3.1979 obtained by the plaintiff from Jadhao. He argues that sale deed Exh.95 obtained by defendant on 9.2.1953 from Potdukhe is subsequent in point of time and hence is subject to stipulations in Exhs.84 and 85. According to him, the situation has been rightly evaluated by the lower appellate Court. He points out that there is no way for the plaintiff to reach the common service lane which runs behind her plot as also plot of present appellant.
5. The first sale deed Exh.84 is dated 8.6.1949 and by it Potdukhe sold a plot admeasuring 35' x 40' to Jadhao. While describing the boundaries, it has been mentioned that on Southern side of said plot, there is 5' lane. In second sale deed Exh.85, which is dated 24.1.1951 between same parties, plot sold is 65' x 35' and a lane of 5' is mentioned on its Southern side. There is some dispute between the parties about the words which occur after mention of this Southern boundary. Those words are "as owner for generations you can enjoy the property". According to Shri. Mohta, learned counsel, these words qualify lane on Southern side while according to defendants, the words qualify "the plot sold" and not the lane. Looking to the nature of dispute, it is apparent that the plaintiff is not claiming any ownership on said lane of 5'. Therefore, there is no question of lane being transferred to him as owner for generations. The words, therefore, do not relate to 5' lane on Southern side.
6. The next document in chronology is Exh.95 i.e. sale deed dated 9.2.1953 by which Potdukhe has sold the plot to defendants. There is no dispute in relation to said sale deed. Plot sold is 70' x 50' and while describing its boundaries, it is mentioned that it has got government road on its East, open land and bunglow of a Nakheram on its West, one road on its South side and rooms of Deshmukh on its North side. It is to be noted that this Deshmukh is the predecessor in title of plaintiff. Thus, this sale deed does not show existence of any lane on Northern side and the plot purchased by the defendants stretches right up to the rooms of Deshmukh (also known as Jadhao). It is not in dispute that rooms constructed by Deshmukh/Jadhao are on extreme Southern boundary of the plot purchased. Thus, according to the plaintiff after those rooms, there is a lane of 5' while Exh.95 mentions that plot purchased by defendants stretches up to those rooms. The sale deed in favour of plaintiff is at Exh.83 and it is executed by Jadhao in her favour on 15.3.1979. It is the last document in chronology. In this sale deed, the Southern boundary has been described as 5' lane and thereafter house of defendant. It is, therefore, clear that as per this sale deed in favour of plaintiff, after the rooms constructed at the edge of Southern boundary, there is lane of 5' width and thereafter plot of defendants.
7. When the evidence on record is viewed in this background, the perusal of plaint shows that the prayer was to restrain the defendants permanently from making any construction in 5' lane situated on Southern side of plaintiff's plot. This prayer was later on amended and an injunction for demolition of the construction effected was sought. The cause of action for filing of suit was mentioned as arising on 18.6.1985 and thereafter on 17.12.1985 on 31.12.1985. In para 3B, which is amended subsequently, it is stated that during the pendency of suit, the defendant has constructed a latrine on 5' lane and lane was necessary as it was plaintiff's approach road to service lane and therefore, it was for common use. The opening part of the plaint shows that the plaintiff contended that she always used said lane after the property was purchased by her and there was no other way except 5' lane which was left open on the Southern side of her house. All these allegations are denied by the present appellants by filing their written statement. If the stipulation in sale deed at Exh.83 in favour of plaintiff is presumed to be true, it follows that the lane did not belong to defendants and therefore the defendants could not have constructed anything in that lane as their plot itself began after the said lane. The plaint does not disclose any such case and it does not even mention that defendants have constructed on part of land not belonging to them or not forming their plot.
8. During arguments, the respondent has urged that the respondent is not claiming any title over said 5' portion and respondent cannot challenge the act of its transfer by Potdukhe to defendants. It is contended that though the defendants have purchased it, defendants have to keep it open. Such a right on the property of Potdukhe or then on property of present appellants can be claimed by plaintiff only after raising necessary pleas either of grant or of easement in the plaint. There are absolutely no pleadings on these lines in the entire plaint. The contention that the defendants, therefore, are duty bound to keep said portion of his plot open, cannot be accepted. Even perusal of sale deed at Exh.84 reveals that what is mentioned as Southern boundary is 5' lane. It is obvious that on Southern side, there was no lane but it was the property or plot belonging to Potdukhe only. Same also holds good in relation to sale deed at Exh.95. The mention of lane of 5' on Southern side of plaintiff's plot in both these sale deeds is, therefore, factually incorrect. The sale deeds nowhere show that the vendor Potdukhe has stated that he would provide 5' lane on Southern side. It has not been brought on record by the plaintiff that her plots were in any sanctioned lay out and there was a public lane of 5' width on Southern side. It was the case of the appellants/defendants that they were constructing toilet as per sanctioned plan on their own plot. It, therefore, appears that the defendants had a sanctioned plan in their favour. In view of this position, the finding of trial Court that there existed no lane on Southern side, appears to be just and proper. It is to be noted that it was open to Potdukhe to encumber his plot by providing a lane of 5' width open in favour of plaintiff for going to common service lane. No sale deed stipulates accordingly and there is no pleadings on these lines by the plaintiff. The plaint is solely based upon the case that in sale deed on Southern side, the lane has been mentioned. As already held above, Southern lane stipulated in the sale deed is incorrect. It is also to be noticed that the plaintiff has purchased the property on 15.3.1979 while sale deed in favour of defendants is dated 9.2.1953. In this sale deed, plot of defendants is mentioned right up to Southern boundary of plot of plaintiff. In other words, it does not mention any 5' lane between two plots. It is, therefore, obvious that mention in Exh.83 on Southern side, there is a lane of 5' width and then plot of defendants, is again incorrect. In any case, if there was any promise by Potdukhe to provide 5' lane to defendants on Southern side, no such promise has been pleaded and if any action was possible for violation of such presumed promise, Potdukhe has not been joined as party defendant. It is, therefore, apparent that the trial Court has correctly appreciated the controversy and has found that there was no lane of 5' width on Southern side. The issues answered by the trial Court, therefore, show proper appreciation of material on record.
9. The lower appellate Court has not considered either the pleadings or the effect of documents before it in correct perspective. The material on record clearly demonstrated that the plot of plaintiff was on its Southern edge and this admission is given in para 11 by husband of plaintiff. The plaintiff Dwarkabai has not entered the witness box and she has examined her husband as witness. Though, it has been repeated that there is no approach way for going to the service lane, it has also been admitted that on West side of plot of plaintiff, by creating a door, the service lane could have been approached. The husband has admitted in cross examination that service lane was about 300' in length and it could have been approached by public road on Northern and Southern side. He admitted in cross-examination that Exh.83 did not mention that the plaintiff was permitted to use Southern lane and there was no document with plaintiff to show that she was given any right over Southern lane. He also accepted that said 5' lane portion was not purchased by the plaintiff and in government records, there is no mention about alleged Southern side 5' lane. He also accepted that in Exh.95 there was recital that on Northern side of defendants plot, there was property of plaintiff's then held by Shri. Deshmukh. The plaintiff examined her vendor Rajabhau Deshmukh @ Jadhao and he only pointed out the mention of lane of 5' width in Exhs.83, 84 & 85. He has stated that on rare occasions he used this 5' lane but on most of the occasions, he used to approach service lane from his plot. He further stated that there was no approach to service lane except 5' lane. He further accepted that there was no mention in sale deed of giving any right to use lane of 5'. He accepted that in sale deed of executed by him in favour of the plaintiff, there is no mention that said lane can be used in ownership rights. In English translation of deposition as recorded, the words "is not mentioned" appeared to be missing but in Marathi those words are specifically written and from next answer given by this witness that he could not assign any reason for said omission, the error in recording of evidence in English is apparent. He has further admitted that said recital was omitted as no right to use lane was given to him by his vendor. He has further stated that he was residing there for 30 years and he was approaching western service lane from his house and there was no occasion for him to use Southern lane. He used to drive the cattle if he found them in Southern lane. He also admitted that after his plot, there was no lane on Southern side. This entire evidence is lost sight of by the lower appellate Court and the lower appellate Court has been swayed away by the mention of 5' lane in sale deeds at Exhs.83, 84 and 85. Its finding that area in possession of defendant is 3550 sq. feet instead of 3500 sq. feet and hence defendant has taken lane inside his plot overlooking the fact that area of lane has to be minimum 500 sq. feet. What is the significance of that stipulation in sale deeds, whether such stipulation had the effect of creating a 5' lane which never existed and whether a suit of such nature could have been filed on the basis of such stipulations are the questions which are not addressed to by the lower appellate Court. These questions arise from pleadings of parties and also from the evidence which has come on record.
10. Shri. Mohta, learned counsel has argued that if this Court finds that some evidence relevant to the controversy has not been considered, the matter should be made over to lower appellate Court again so that the plaintiff - respondent does not lose the right of appeal under Section 100 of Civil Procedure Code. The arguments were opposed by Shri. Joshi, learned counsel for the appellants. It is settled law that the Court has to be loath to remand the matter. In present circumstances, I find that there is no scope for remand because suit as filed is itself misconceived.
11. In view of these findings, I find that substantial question of law as formulated needs to be answered in favour of present appellant. Second Appeal, therefore, needs to be allowed. Accordingly, judgment and decree dated 18.12.1993 delivered in Regular Civil Appeal No.151 of 1990 is quashed and set aside. The judgment and decree dated 26.3.1990 delivered by the 6th Joint Civil Judge, Junior Division, Akola, in Regular Civil Suit No.365 of 1985 is hereby restored. However, in the circumstances of the case, there shall be no order as to costs.