Disposed

Ram Shankar v. Gokul (Deceased) Thru. Shiv Pratap and Others

Allahabad HC22 May 2024/100/2024

Case brief

AI extract

What is this about?

Second Appeal dismissed as no substantial question of law arises. Suit was not maintainable for removing encroachment from a public road without impleading the State.

What did the court decide?

The Second Appeal was dismissed.

What the court decided

Ram Shankar Vs Gokul (Deceased) Thru. Shiv Pratap and… — Property and Title | Allahabad HC (2024)

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Court No. - 5

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Case :- SECOND APPEAL No. - 100 of 2024

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Appellant :- Ram Shankar Respondent :- Gokul (Deceased) Thru. Shiv Pratap And Others Counsel for Appellant :- Rishi Kumar Tripathi,Prabhat Kumar,Utkarsh Singh

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Hon'ble Rajnish Kumar,J.

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Heard Shri Prabhat Kumar, learned counsel for the appellant.

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This second appeal has been filed by the plaintiff-appellant for setting aside the judgment and decree dated 08.02.2024 passed by the Additional District and Sessions Judge/ FTC, Unnao in Civil Appeal No.16 of 2018 (Ram Shankar Vs. Gokul and Others) and judgment and decree dated 28.05.20211 passed by the Additional Civil Judge (J.D.) Court No.1, Unnao in Regular Suit No.135 of 1998 (Ram Shankar Vs. Gokul and Others).

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Learned counsel for the appellant submits that the defendant-respondents have made encroachment on the public road, which is going from north to south in front of houses of both the parties because of which, the appellant is facing difficulties in his way as there is no other way for him, therefore the suit for injunction for removal of encroachment was filed by the appellant. Four issues were framed. While deciding the issue no.1, the trial court found that the appellant had no other way to go from his house but while deciding the issue no.2, though the respondent had admitted in his evidence that the road is 6-7 fit wide whereas it is 3-4 fit wide in front of house of the respondents, but dismissed the suit on the ground that the appellant has failed to prove that there is encroachment by the defendant-respondents, whereas in view of admission of defendant-respondents it was proved that the defendantrespondents have made encroachment on the public road. The appellate court has also dismissed the suit without considering the aforesaid, therefore the judgment and decree passed by the court's below are not tenable in the eyes of law.

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I have considered the submissions of learned counsel for the appellant and gone through the documents placed on record of this appeal.

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The appellant had filed a suit for injunction and for a

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direction to the defendant-respondents to remove the encroachment from the public road. The defendant-respondents have denied the claim of the appellant by filing the written statement. After filing of the written statement, four issues were framed. The issue no.1, as to whether the appellant go from the road in dispute as per the map given in the plaint, has been decided in favour of the appellant. However while considering the issue no.2, as to whether the defendant-respondents have made constructions on the road in dispute and the appellant is entitled to get the same removed, the trial court found that though the road is 7-8 fit wide, whereas it is 3-4 fit wide in front of the house of the defendant-respondents, however the appellant has failed to prove that there is any encroachment by the defendant-respondents.

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Being aggrieved by the judgment and decree passed by the trial court, the appellant filed civil appeal, which has been dismissed. While dismissing the appeal, the appellate court has recorded categorical finding that the witness DW-1 has denied that the width of the road has decreed on account of the extension of his passage and there is any obstruction in passage of bullock cart and tractor. The similar evidence has been given by the DW-2. It has also been recorded that the appellant has admitted that he has not filed any map of the road to show that the same was wider than the road it is existing in front of the house of the respondents. Before this Court also learned counsel for the appellant has failed to show that the road was wider than it is existing in front of the house of the defendant-respondents as per Government records.

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In view of above, this Court is of the view that the learned court's below have passed the judgment and decree in accordance with law after considering the pleadings, evidence and material on record, which does not suffers from any illegality or error and no substantial question of law arises in this appeal. Even otherwise the appellant had filed the suit for removal of encroachment from the public road without impleading the State, therefore the suit itself was not maintainable.

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8. The appeal is dismissed .

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...................................................................(Rajnish Kumar, J.)

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Order Date :- 22.5.2024 Haseen U.

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Digitally signed by :- HASEENUDDIN High Court of Judicature at Allahabad, Lucknow Bench

Ram Shankar v. Gokul (Deceased) Thru. Shiv Pratap and Others

Case brief

What is this about?

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What the court decided

Ram Shankar v. Gokul (Deceased) Thru. Shiv Pratap and Others

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What the court decided

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