Dismissed

Kalpana Tiwari v. Ram Saran and Another

Allahabad HC10 Jan 2020SAPL/480/2018

Case brief

AI extract

What is this about?

This second appeal challenged the dismissal of a suit for permanent injunction. The court upheld the lower courts' finding that the appellant failed to prove her title to the property or the existence of the disputed passages. With alternative routes available and no substantial question of law arising, the appeal was dismissed.

What did the court decide?

Appeal dismissed; no permanent injunction granted.

Kalpana Tiwari Vs Ram Saran and Another — Specific Performance | Allahabad HC (2020)

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Court No. - 53

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Case :- SECOND APPEAL No. - 480 of 2018

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Appellant :- Kalpana Tiwari Respondent :- Ram Saran And Another Counsel for Appellant :- Suresh Chandra Varma,Satendra Kumar Singh Counsel for Respondent :- Krishna Kant Shukla

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Hon'ble Vivek Agarwal,J.

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Heard Sri S.C. Verma, learned counsel for the appellant and Sri Krishna Kant Shukla, learned counsel for the respondents.

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This appeal is filed under Section 100 of Code of Civil Procedure by the plaintiff being aggrieved of the judgment and decree dated 22.02.2018 passed by the learned District Judge, Jalaun at Orai dismissing the Civil Appeal No.62 of 2017 filed by the plaintiff-appellant and affirming the judgment and decree dated 07.11.2017 passed by Civil Judge (Junior Division), Jalaun at Orai, dismissing Original Suit No.22 of 2010 along with counter claim filed by the defendant-Ram Saran thus, rejecting the prayer of the plaintiff for permanent injunction so also rejecting the claim of the defendant that they are the owners of alleged passage.

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Brief facts leading to the present appeal are that plaintiff Smt. Kalpana Tiwari had filed a suit for permanent injunction against the defendants claiming that defendants to be restrained from closing the passage W1 and W2 and the injuncted from causing obstruction in the movement of the plaintiff to her private property. It was alleged that plaintiff has a house and Chabutra situated at Mohalla Patel Nagar, Orai, which was shown in the Nazri Map enclosed with the plaint as A.B.C.D. and plaintiff is the owner and possessor of such house. She has a door on the Chabutra and she has filed only one passage on the North of her house which meets on the East with the R.C.C. road. Similarly,

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passage from the West moves towards the North and merges with the R.C.C road. It was alleged that defendant was trying to close such passage and if defendants succeeds in closing such passage then movement of the plaintiff from her house shall be obstructed. Defendant-Ram Saran had filed a counter claim denying the contentions of the plaintiff and disputed that plaintiff is not the owner and possessor of the property in dispute because she obtained a registered sale deed from Prayag Narain Saini in a cunning and deceitful manner by giving incorrect address.

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This suit was earlier decided by the trial court but the Civil Appeal No.84 of 2013 was filed by the plaintiff before the learned Court of A.D.J. which remanded the matter to the Trial Court vide order dated 30.08.2014 setting aside the judgment and decree dated 09.10.2013 and directing the trial court to extend one opportunity to the plaintiff to lead evidence subject to payment of cost and decide the suit. Accordingly, suit has been decided on 07.11.2017 after receiving it on remand.

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Learned Trial Court framed as many as five issues and, out of which, issue nos.1 and 5 directly touches the issue raised in the plaint and the counter claim and held that plaintiff did not produce either the original copy of the sale deed or the certified copy of the sale deed nor produced any secondary evidence to prove such sale deed so to demonstrate that plaintiff has perfected any rights in relation to the passage W1 and W2. Similarly, while deciding the issue no.5 it found that defendant's submission that plaintiff had breached the wall of the defendant situated on North of her house (boundary-wall) could not be established. No police case was registered. It also recorded a finding that to claim a mandatory injunction defendant is required to prove that he is the sole owner of the disputed wall. But defendant had failed to prove such fact from the evidence

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which has come on record and, therefore, dismissed the counter claim as well.

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It is submitted that learned first Appellate Court too erred in not appreciating the correct evidence on record that if vendor from whom the plaintiff had purchased the property had no title on the date of execution of sale deed, vendees title and possession is valid against the entire world except rightful owner. Once, it has been established that defendant is not owner of the property, then there was no justification in dismissing the suit and the first appeal. It is also submitted that the courts below have failed to take into consideration the Commissioner's Report and, therefore, there was no justification in dismissing the suit.

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Learned first Appellate Court has taken into consideration another fact which has come on record that plaintiff has an alternative passage to approach her property. It has come on record that in front of the house of the plaintiff, a passage from East to West joining the road on the West of the property line in North of the plaintiff is already available and this road also connects towards to the R.C.C. road on the East of the property. It joins into a ' Kacchi Gali ' on the North i.e. a ' Gali' is available between house of Dr. Dev Nath and Nathu Ram Nigam on the one hand and Gopal Pura house on the other hands which was being used by the father of the vendor of the plaintiff namely Daya Ram and others and is being still used and besides it, in the East of the ' Chabutra' of the plaintiff, there is another passage going towards South meeting the R.C.C. roads. Therefore two passages are available to the plaintiff. It has also appreciated the fact that plaintiff had filed copy of the original sale deed at the appellate stage and, therefore, has taken into consideration the recitals of the sale deed so also the sum totality of the fact situation into consideration and has found that neither the permission from the Competent Authority has

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been filed nor from any other Government Department to substantiate her claims and, therefore, having failed to prove her case through cogent evidence, she is not entitled to any relief. Even the Commissioner Report dated 08.03.2011 reveals that the passage which has been depicted as W1 and W2 by the plaintiff along with her map is not available on the site. This Report has not been put to challenge by the plaintiff.

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Concurrent findings of fact recorded by the courts below that plaintiff has failed to prove her case while leading any cogent evidence that there is any dispute as to the passage and obstruction to the right of movement for the plaintiff, courts below have not committed any error in dismissing the suit and the first appeal inasmuch as it was for the plaintiff to have proved her case which she has failed to prove. In absence of there being any cogent evidence either documentary or oral to support the case of the plaintiff and there being a finding that plaintiff has an alternate passage on the North of her property, no case for permanent injunction could be established by the plaintiff and therefore this appeal does not give rise to any substantial question of law as has been proposed by the appellant, therefore, appeal fails and is dismissed.

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Order Date :- 10.1.2020 Ashutosh

Kalpana Tiwari v. Ram Saran and Another

Case brief

What is this about?

What did the court decide?

Kalpana Tiwari v. Ram Saran and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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