The Court dismissed the second appeal entertained under Section 100 CPC. Upholding concurrent findings of fact by lower courts that the disputed land was a public passage, the judgment held no interference was warranted as no substantial question of law arose.
Second Appeal dismissed; Lower Court decree upheld.
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Court No. - 53
Case :- SECOND APPEAL No. - 35 of 2020
Appellant :- Gopal Saini And 9 Others Respondent :- Basanta (Dead) And 5 Others Counsel for Appellant :- Ashish Kumar Singh Counsel for Respondent :- Rahul Kumar Tyagi
Hon'ble Vivek Agarwal,J.
Heard Sri Ashish Kumar Singh, learned counsel for the appellants and Sri Rahul Kumar Tyagi, learned counsel for the respondents.
This Second Appeal under Section 100 of Code of Civil Procedure filed by the defenants-appellants being aggrieved by concurrent findings of fact recorded by the courts below i.e. by the court of Civil Judge (Jr. Division), Hapur in original Suit No.143 of 1999 vide judgment dated 21.12.2013 that the piece of land in dispute, which was subject matter of the suit was a common passage ( rasta ) being used by the villagers and such finding has been affirmed by the court of 2nd Addl. District Judge/Special Judge, (SC/ST, Prevention of Attrocities Act), Hapur in Civil Appeal No.20 of 2014 by judgment dated 01.102.019.
Learned counsel for the appellants submits that plaintiffs claimed that 18 fit wide road going upto 'Shiv Mandir' on West and which meets the main road on East is a public road and is being used by the plaintiff and the villagers for several years is being sought to be closed by the defendants and if such road is blocked by the defendants then their right to passage through that road will be blocked and, therefore, filed a suit claiming permanent injunction so to restrain the defendants from closing that passage as was marked in the suit map with yellow colour.
Learned counsel for the appellants submits that as per the Amin Commisioner Report, the width of the passage was found to be 13 fit whereas in the plaint averments width has been shown to be 18 fit. There is ambiguity in the Amin Commissioner Report and the plaint map, yet Trial Court has decreed the suit and has mentioned that the disputed passage, which has been marked in yellow colour in the suit map shall not be obstructed by the defendants.
When, learned counsel for the appellants is requested to show the boundaries of the property which was purchased by him and which is admittedly in close proximity to the said passage marked with the yellow colour in the suit map, he submits that no boundaries have been mentioned in the suit map but when it is pointed that on internal page-2 of the sale deed, boundaries have been mentioned, then on reading of such boundaries, it appears that on the East of the property, which was purchased by the defendant, it is mentioned that exists a house of Vijay Pal son of Chidda Singh along with land of Jai Kumar and in some part, a passage has been shown. Once, it is mentioned in the sale deed itself showing the boundaries of the property which was purchased by the defendants that a public passage exists, no dispute could have been raised thereafter.
In view of such facts, concurrent findings of fact recorded by the courts below does not call for any interference and, therefore, the second appeal fails and is dismissed as it does not give rise to any substantial questions of law as are mentioned in the memo of appeal.
Order Date :- 14.1.2020 Ashutosh
2 issues framed by the court
Whether concurrent findings of fact regarding the disputed land being a public passage require interference in the second appeal under Section 100 CPC.
Whether specific questions of law are available to the appellants to challenge the decree affirming the public nature of the passage.
Gopal Saini And 9 Others
Basanta (Dead) And 5 Others
Vivek Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
