ASHRAFKHAN AZADKHAN PATHAN Vs. MARIAMBIBI KADRI

JUDGEMENT

(1.) 1. to 7. xxx xxx xxx.

(2.) The submission urged at Bar on behalf of the petitioner cannot be accepted for more than one reason. It is pertinent to note that the property claimed by the original plaintiff consists of different parts of City Survey numbers which are transferred by different sale -deeds and except the sale -deed produced vide Exh. 57/1 in all other sale -deeds, there is a mention of passage on the southern side of the property admeasuring 4" 9" in width. Not only that but document executed by predecessor -in -title of the vender to the document produced at Exh. 57/1 also contains a mention about the existence of such passage and thereby it cannot be said that the Trial Court as well as lower Appellate Court have committed an error of fact while giving such findings. It is pertinent to note that right to passage as claimed by the plaintiff has to be ascertained by construing the documentary evidence as a whole and not by perusing the same in piecemeal. Under the circumstances, as there is a concurrent findings of the Trial Court as well as lower Appellate Court, this Court while exercising the revisional power would be reluctant to interfere by considering the said findings as perverse.

(3.) It is also pertinent to note that the order of status quo granted initially below Exh. 5 by the Trial Court remained in force and it was not vacated by hearing the parties and technically the extension 6f the said order could not be made. Under such circumstances, the petitioner/ defendant who was aware of such order should not have taken disadvantage of the same to raise the construction which would defeat the right of the plaintiff and make the litigation infructuous. The conduct of petitioner/defendant could not be approved because the petitioner/defendant has made the Commissioner to postpone the inspection. Furthermore, the conduct of defendant is also blameworthily. Not only for using subterfuge but also for flouting the order of the Court as it appears from the judgment of lower Appellate Court that the petitioner/defendant continued the construction in the disputed premises despite the order of status quo. Thus, the conduct of petitioner/defendant disentitled him to claim any equitable consideration in his favour and as a result, no interference of revisional Court is warranted in either of the revisional proceedings when no jurisdictional error or illegal exercise of jurisdiction could be pointed out.