MANDIR MURTI MARI MATA Vs. DEEPAK SHARMA

JUDGEMENT

(1.) THIS appeal by the plaintiff under section 100 CPC is directed against the concurring judgment and decree dated 30/01/2006 passed in civil appeal No.52A/2005 by Additional District Judge (N.D.P.S.Act), Gwalior District Gwalior affirming the judgment and decree dated 30/06/2005 passed in civil suit No.117A/2004 by VIII Civil Judge, ClassII, Gwalior, plaintiff's suit for closing the windows and removal of iron rods projected from the defendants' school has been dismissed.

(2.) PLAINTIFF , in the suit pleaded that on the eastern side of the house of the plaintiff, a school in the name of Rashmi Bal Vihar is being run by the defendants. Defendants have opened windows and intended to raise construction beyond the boundaries of the house/school contrary to the sanctioned map dated 07/04/1993 obtained from the Municipal Corporation, Gwalior and according to plaintiff, except in the northern side, the remaining sides, the defendants are not entitled for such construction and as such, plaintiff's easementry right is protected. Therefore, instant suit is filed for the aforesaid relief.

(3.) ON the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. It has been found that the property shown by the plaintiff is a trust property, however, there is no authorisation in favour of plaintiff authorising to file the instant suit and, therefore, the suit was found to be filed by an incompetent person. That apart, trial Court has found that no such house existing as claimed by the plaintiff. Accordingly dismissed the suit. On appeal, the first appellate Court has reappreciated the oral and documentary evidence on record. Before the first appellate Court,an application under Order XLI Rule 27 CPC was filed seeking to bring on record certain khasra entries for the year 200405. First appellate Court has found that there is no justifiable reason assigned for not filing the same before the trial Court and, therefore, no sufficient cause was found for having not filed said document before the trial Court. Besides, first appellate Court has also considered the document so produced and observed that averments made in the plaint are not bearing any relevancy of the aforesaid khasra entry as regards house of the plaintiff. Accordingly, rejected the application.