SHOBHNA SARDESAI Vs. RADHEY SHYAM

JUDGEMENT

(1.) PETITIONER has filed this revision against the order, passed by Second Additional District Judge, Vidisha, whereby the appeal filed by the respondent/defendant under Order XLIII, Rule 1, Code of Civil Procedure, is allowed. The facts of the case are that the plaintiff has filed a suit in the trial Court alleging therein that the houses of plaintiff and defendant are adjacent to each other. There is a lane on the western side of the plaintiff's house and eastern side of the defendant's house, having a width of 4' x9". The lane is shown by words in the plaint map. This disputed lane is being used for common passage. The lane is used as public passage and defendant has no right, title and interest over this lane. She further submitted that the defendant has stopped this public lane by making construction over it. The plaintiff is unable to maintain the western side of wall of her house and she is deprived of light and air. The flow of water in the lane from her house also stopped and the water is entering her house. She prayed for removal of encroachment over the lane by filing a suit for perpetual injunction. An application under Order XXXIX Rr. 1 and 2, Code of Civil Procedure, was also filed and it was prayed that defendant is trying to sell the property declaring himself to be owner of the lane and prayed that the defendant be restrained from alienating the lane.

(2.) THE claim was denied and it was submitted that the sale -deed, by which plaintiff acquired the property, has not described any lane between the houses. The trial Court, after considering the facts and appointing Commissioner, found that there is a public lane, which has been closed and on the basis of Commissioner's report the trial Court granted injunction restraining the defendant from alienating the property. The order is reversed by the appellate Court. Counsel for the appellant submitted that once the lane is described as public lane, it cannot be alienated by the defendant. The appellate Court has misconstrued the document. The material document of the year 1959 has not been considered. The trial Court has passed the order after considering the original document of the year 1959 but the appellate Court has ignored the document dated 10.8.1959. Counsel for the respondent submitted that since the lane is not existing and it is in possession of the defendant, the appellate Court has rightly rejected the application for grant of temporary injunction and no interference is called for in the revision and the revision be dismissed. Counsel for the respondent submitted that even if the property is sold, that will be hit by doctrine of lis pendens.

(3.) CONSIDERING the facts and circumstances of the case, the dispute relates to a lane, which has been described as lane in earlier sale -deed. Though it is not described as lane in the plaintiff's sale -deed of the year 1987, yet there appears to be lane in the sale -deed dated 10.8.1959, but it is not clear that the lane is still existing. Since the title and rights over the lane are to be adjudicated by the trial Court, therefore, there is a serious question, which has to be tried by the trial Court. To avoid further litigation and future complication it will be proper that status quo in respect of lane be maintained and it shall not be alienated till the decision of the suit. The revision, therefore, succeeds in part and order of the appellate Court is modified to that extent. There shall be no orders as to costs.