Dismissed

Bhagwati Prasad Maheshwari (Since Deceased) and 6 Others v. Anita Gupta and Another

Allahabad HC10 Jan 2020SAPL/21/2020

Case brief

AI extract

What is this about?

Second Appeal dismissed. Bench held defendant failed to discharge burden of proving that disputed door belonged to his property, especially after lower court witness admitted window existed prior to sale. Trial court decree affirmed.

What did the court decide?

Second appeal dismissed; judgments of courts below remain in favour of respondent.

Bhagwati Prasad Maheshwari (Since Deceased) and 6 Others Vs… — Partition | Allahabad HC (2020)

¶1

Court No. - 53

¶2

Case :- SECOND APPEAL No. - 21 of 2020

¶3

Appellant :- Bhagwati Prasad Maheshwari (Since Deceased) And 6 Others Respondent :- Anita Gupta And Another Counsel for Appellant :- Archit Mehrotra,Sushil Kumar Mehrotra

¶4

Hon'ble Vivek Agarwal,J.

¶5

Heard Sri Sushil Kumar Mehrotra, learned counsel for the appellants.

¶6

This Second Appeal has been filed by the defendant being aggrieved by the judgment and decree dated 04.10.2019 passed by 9th Additional District Judge, Budaun in Civil Appeal No.09 of 2012 (Bhagwati Prasad Maheshwari (since deceased) and others Vs. Smt. Anita Gupta and another. The first Appellate Court has dismissed the appeal as was filed by the defendantappellant affirming the judgment and decree dated 23.11.2011 passed by Civil Judge (Junior Division), Budaun in original Suit No.32 of 2010.

¶7

Brief facts leading to the present appeal are that the plaintiff had filed a suit for permanent injunction claiming that she has a door on southern wall of her house, which has been shown as 'D' in the plaint map and the defendant is trying to interfere in the peaceful usage of said door by the plaintiff.

¶8

Defendant's case is that the property which was purchased by the plaintiff from one Rajendra Singh and another was in fact sold by one Shanti Swaroop and Vishan Swaroop to Rajendra Singh on 28.02.1992. In that sale deed, there is no mention of any door or window on the southern wall of the property which was sold by said Shanti Swaroop Mathur in favour of Rajendra Singh, therefore mention of existence of a door and window on

¶9

the southern wall of the property which was transmitted by Rajendra Singh and Arjun Kumar in favour of the plaintiff is in fact an exaggeration and does not give correct description of the property. It is also submitted that there was no occasion for the vendor who had sold property in favour of the vendee i.e. the plaintiff to make a mention of a door and window on the southern wall inasmuch as the details of the adjacent property on all the four directions are given and not that of the doors and windows opening inside and outside the property so sold are purchased. It is also submitted that in fact the door which has been constructed by the plaintiff is an afterthought and in fact defendant-Bhagwati Prasad was not keeping good health and was required to travel frequently for his treatment during which period that door was opened by the plaintiff.

¶10

It is the contention of the appellant that such door has been opened in the property belonging to the defendant and since, plaintiff has no right to encroach upon the property of the defendant, therefore, the plaintiff's suit should have been dismissed.

¶11

It has come on record that a counter claim was also filed by the defendant-appellant which too has been rejected by the Trial Court and has been affirmed by the first Appellate Court.

¶12

Learned counsel for the appellants submits that the Trial Court erred in misreading the evidence of one of the defendant's witnesses D.W.-2, who has admitted that there was a window on the southern wall of the property which was purchased by the plaintiff. It is submitted that misreading such evidence of D.W.-2, the Trial Court has erred in decreeing the suit for permanent injunction.

¶13

After hearing learned counsel for the appellants and going

¶14

through the record it is apparent that Trial Court had framed as many as seven issues, out of which, issue no.1 was whether the door which has been shown in the wall of the plaintiff's house is the property of the plaintiff and whether she is the owner and possessor of the said door. Issue no.2 was framed, as to whether, plaintiff is entitled to open such door which has been marked as 'Ga' and further whether she has right to use the stairs for her movement through said door marked as 'Ga'. Issue no.3 was framed that whether as per the written statement filed by the defendant-plaintiff has right to open the disputed door which has been shown in the map attached with the written statement as 'D'.

¶15

It is an admitted fact that in the registered sale deed through which plaintiff had purchased the said property in question, there is a mention of a door and a window on the southern wall of the property so purchased by the plaintiff.

¶16

It is the case of the defendant appellant that in the sale deed which was executed by Shanti Swaroop Mathur in favour of Rajendra Singh and Arjun Kumar, there is no mention of a door/window and, therefore, there could not have been any mention of such door or window in the sale deed executed by Rajendra Singh and another in favour of the plaintiff. However, it has come on record and has been appreciated by the first Appellate Court that the appellant defendant had not taken pains to either produce a certified copy of the sale deed which was executed by Shanti Swaroop Mathur and another in favour of Rajendra Singh and another and only a photo copy was produced and in regard to that photo copy also, no steps were taken by the defendant to prove them by invoking the provisions of the Evidence Act to prove a document in secondary evidence.

¶17

Similarly, it has also come on record that as far as boundries and dimensions of the property of the plaintiff are concerned, they are undisputed and remain unchanged. It has also come on record that the door which has been opened by the plaintiff on the southern wall in fact opens on a public road ( Kharanja ) and not in the private property of the defendant as has been alleged by the defendant.

¶18

At this stage, learned counsel for the appellants submits that however even if it is admitted that the door of the plaintiff opens on a public road and not in the property of the defendant but it is to be seen that the door is opening on the 'Nali' which belongs to the defendant-appellant. However, no such issue was framed by the Trial Court and there was no application for amendment of issues that the door in dispute which has been marked as 'Ga' in the 'Nazri Naksha' enclosed along with the plaint and as 'D' in the Nazri Naksha enclosed along with the written statement/counter claim filed by the defendant opens on the 'Nali' or obstructs the 'Nali' belonging to the defendant. However, it has also come on record that defendant has not produced a certified copy of his sale deed to prove the dimensions of his property to show that in fact the door marked as 'Ga'/'D' opens on his property rather than on a 'Kharanja'.

¶19

In fact, it has been discussed and it has come on record that the steal door in the property of the defendant-appellant is a, way before the stairs and the door of the plaintiff.

¶20

In view of such facts that plaintiff could prove existence of a door/window from the times prior to purchase of her property and defendant could not prove that such door/window was not existing and on the contrary witness of the defendant i.e. D.W.2, Natthu Lal, admitted that such window was existing from prior times when the property was purchased by the plaintiff is

¶21

sufficient evidence to belie the statement of the defendant that there was no door/window on the southern wall of the property as was purchased by the plaintiff and plaintiff taking advantage of the illness of the defendants opened such doors unscrupulously.

¶22

Therefore, it is evident that plaintiff could prove existence of the door from the time of the predecessor of the sale deed executed in favour of her whereas defendant could not prove that such door is being opened in the property belonging to the defendant.

¶23

In view of such facts, when the defendant could not prove his counter claim and plaintiff could establish existence of her door from the time of her predecessors, who were owning such property, the Trial Court did not erred in decreeing the suit for permanent injunction in favour of the plaintiff restraining the defendants from causing any obstruction in the use of such door, which has been marked as 'GA'/'D' in the suit map enclosed with the counter claim. The first Appellate Court too has rightly dismissed the appeal filed by the defendant as defendant has failed to discharge his burden to prove any of the pleading put forth by him.

¶24

In view of such facts, the judgments passed by the Courts below does not call for any interference and also does not give rise to any substantial question of law lest which are mentioned in the memo of appeal, therefore, the Second appeal fails and is dismissed.

¶25

Order Date :- 10.1.2020

¶26

Ashutosh

Bhagwati Prasad Maheshwari (Since Deceased) and 6 Others v. Anita Gupta and Another

Case brief

What is this about?

What did the court decide?

Bhagwati Prasad Maheshwari (Since Deceased) and 6 Others v. Anita Gupta and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Vajiran and Another Vs Kamrunisha and 3 Others

Gur Bux Lal Vs Ajhar Mal and Others

Shri Ram Lila Gaushala Committee and Another Vs Jawahar Lal Halwai and Others

Rai Saheb and 8 Others Vs Bhagwan Singh and 2 Others

Gajanand and Others Vs Siya Ram Singh

Kalpana Tiwari Vs Ram Saran and Another