RAJ RANI Vs. BIPAT LAL

JUDGEMENT

(1.) R. N. Ray, J. This appeal is being preferred against the judgment and decree passed in Civil Appeal No. 273 of 1 974 by Sri L. N. Rai learned II Additional District and Sessions Judge, Jhansi. In that appeal the learned appellate court dismissed the ap peal and affirmed the judgment and decree dated 18-8-74 passed by Sri Ram Kumar Prajapati in suit No. 836/70.

(2.) THE respondent-plaintiff filed the above suit No. 836/70 against the defendant-appellant for possession of the disputed land shown by letters ALFE and ADGHJ in the site plan attached to the plaint, that site plan was made according to proper sketch map and there was no objection in the pleadings regarding the identity of the dis puted land. THE respondent-plaintiff prayed for the possession of the disputed land after demolition of the construction raised there on by the defendant- appellant and for per manent injunction restraining the defen dant-appellant from making any further construction over in two pieces of land shown in the site plan, in future. It is not disputed that the respondent is not the owner of the house No. 39 Abbott Ganj situate in Sipri Bazar. Jhansi and the defen dant appellant is the owner of house Nos. 41 and 42 of Abbott Ganj, Sipri Bazar, Jhansi corresponding to municipal Nos. 749 and 750 respectively. To the west of the house of the defendant- appellant there is the house of the plaintiff-respondent that is house Nos. 39 and 38. Earlier all these houses belonged to one Captain Sri N. R. Abbott and the respondent's father Mithu pur chased house Nos. 37, 38 and 39 from the said Captain Sri N. R. Abbott by a registered sale-deed dated 12-4-1960. A map of the houses sold by the registered sale-deed with the boundaries thereof was annexed with the sale deed which is Ext.-l. To the south western side of all these houses, house No. 39 existed and the land is shown as a private lane of the vendor. By the registered sale deed dated 12-4-70 Captain N. R. Abbott the vendor of the plaintiffs father gave easementary rights over the disputed land which is palpable from Ext-1 itself. THE defendant-appellant purchased his house being Nos. 41 and 42 from the said N. R. Abbott on 8-9-61. 3, THE learned trial court by virtue of Ext-1 held that the plaintiff-respondent ac quired easementary rights as claimed over the disputed land and there is necessity regarding grant of easement in other dis puted land which are used as pathway near the lane for the inmates of the house of plaintiff- respondent and since the vendor of the defendant-appellant had no right over the disputed land relating to easement at the time of sale-deed in favour of defendant, he could not pass any right or title in respect of the disputed land to the defendant-appel lant which was purchased on 8-9-61 i. e. so far a later date than the purchase date by the plaintiff-appellant's father. Acquisition of ownership by the plaintiff-respondent of the land covered by Ext-1 was not disputed. 4. THE learned trial court after con sidering the materials before him and on considering the evidences on record was pleased to decree the suit in terms of the prayer as made in the plaint and against that judgment and decree passed by the learned trial court, the defendant-appellant preferred an appeal which was also dis missed by the learned appellate court upon holding that the disputed land belonged to the plaintiff-respondent for use and occupa tion as pathway and both the trial court as well as the lower appellate court have held that the right of easement was acquired by the plaintiff-respondent much prior to ac quisition of any title by virtue of the pur chased deed relating to the sale- deed dated 8-9-61. Both the trial court as well as the lower appellate court gave their findings based on reasonings and there are concur rent findings of fact by which it was held that the plaintiff-respondent had the right of easement over the disputed land and there was illegal construction over the same by the defendant-appellant and there was an order for demolition of the same and there was an order of permanent injunction so that in future the defendant-appellant may be restrained from putting any obstruction upon the disputed land so that plaintiff-respondent may not feel any inconvenience for proper use and occupation relating to the easementary rights. 5. Learned Advocate for the defen dant-appellant submitted that the learned courts below were not correct in view to appreciate the materials on record as both the courts might to have held that those constructions were much prior to the pur chase of the plaintiff's father in respect of house Nos. 37,38 and 39 Abbott Ganj, Sipri Bazar, Jhansi, It has been submitted that Ext-1 was not proceed according to law and the learned courts below ought not to have put reliance on the same as such he has prayed that the appeal be allowed and the judgment and decree passed by both the courts below be set aside. 6. Learned counsel for the plaintiff-respondent supported the judgment and decree passed by the learned courts below more or less on the same reasonings as had been assigned by the courts blow. Since there is concurrent findings of fact based on reasons, it cannot be said that it is perverse finding and this Court should not disturb the finding of the learned courts below in a second appeal. 7. Duly considered the submissions of both sides and perused the records par ticularly the judgment and decree of the learned trial court and also the judgment and decree of lower appellate court and 1 find that there are concurrent findings of fact relating to the disputed land. THE illegal construction made by the defendant-appel lant after purchase of house Nos. 41 and 42 and it has been held that the plaintiff- respondent acquired valid easementary rights by virtue of purchase of Ext-1 which was much prior than the purchase deed of the defendant-appellant. THE findings of the learned courts below cannot be branded as perverse findings because those findings are based on reasons. 8. In the circumstances, the second ap peal fails and is dismissed. Be it noted that during the pendency of the second appeal the plaintiff-respondent executed the decree and got the demolition of the illegal construction. Hence the appeal is dismissed on contest without costs. 9. THE lower court's record be sent down to learned court below concerned im mediately. Appeal dismissed. .