MATHURA BAIKHUMAN SINGH Vs. NARBADA PRASAD UMRAOLAL JAISWAL

JUDGEMENT

(1.) THIS appeal under section 100 of the Code of Civil Procedure has been filed by the defendant against the judgment and decree dated 23-11-1968 passed by the Additional District Judge, Damoh, in Civil Appeal No. 4-A of 1967.

(2.) BRIEF facts of the case are that the plaintiff, who died during the pendency of the present appeal and has been substituted by his legal representatives, had filed a suit against the defendant for issue of a permanent injunction restraining the defendant from using the passage shown in the map (Ex. P-2), to close the doors shown by letters of her house opening towards the passage, to remove the Chajja shown by letters of her house under construction and also to remove the bricks collected on the said passage. According to the plaintiff, Mst. Umabai was the owner of the plot bearing khasra No. 3598 situate in Civil Ward No. 1, Damoh town. She sold her land in parts to different persons including the plaintiff Shankar Sunar (now purchased by Babu Bhaiya Tandon), Pandurang Shinde (now purchased by babulal Jaiswal) and the defendant. The plaintiff also built a cinema house known as Jagdish Talkies on this plot as shown in the plaint map. The passage was included in his sale-deed by the vendor and as such he had become the owner of that including the open land purchased by him by a registered sale-deed dated 9-8-1944 (Ex. P-4) from Mst. Umabai. His allegation was that this passage was a private passage and the defendant had no right to use the same without his consent. Inspite of notice when the defendant did not abstain from acting in that manner and even started constructing a chajja which would interfere with the passage, he filed the present suit for the reliefs mentioned above.

(3.) THE defendant contested the suit and disputed the claim of the plaintiff. According to her, the passage was being used by all the plot holders of khasra No. 3598 and the same was never sold to the plaintiff. That being so, according to her, it was not his personal property. She further pleaded that the passage is a public road and is being used by every one and as such she even had a right to use the same. She also pleaded that she was one of the purchasers of a piece of land out of Khasra No. 3598 vide registered sale-deed dated 25-4-1938 from Mst. Umabai and has built a house thereon. She further pleaded that the suit passage was left free for use by all the plot holders. According to her, the two doors were opened at the time when the house was constructed even prior to the purchase of land by the plaintiff from mst. Umabai. She denied having constructed any chajja shown by letter as alleged by the plaintiff. No doubt she admitted that bricks were kept on the passage, but they were stolen and only some of them were left there. Those bricks were required for repair and alteration in the house. Thus, according to her, the plaintiff had no right to obstruct her use of the suit passage and prayed that the suit was liable to be dismissed.