MUMTAJ HUSSAIN Vs. NAGAR PALIKA

JUDGEMENT

(1.) Appellant-plaintiff has preferred this second appeal under Sec. 100 of Civil Procedure Code, assailing the judgment and decree dtd. 3/6/2017 passed by Additional Sessions Judge Kekri, District Ajmer in Civil Appeal No.03/2008, affirming the judgment and decree dtd. 28/2/2008 passed by Civil Judge (Junior Division) and Judicial Magistrate First Class, Kekri, District Ajmer in Civil Suit No.81/92 (133/88) whereby in simpliciter suit for permanent injunction filed by appellant-plaintiff, following decree has been passed:-

(2.) Heard counsel for appellant and perused the record.

(3.) Facts of case briefly stated are that appellant-plaintiff has instituted a civil suit for permanent injunction on 15/4/1988 claiming right of easement on the land opened towards southern side of his plot. Plaintiff came out with a case that his plot has an opening towards the eastern side and at the ground floor there is shop and at the first floor there is a residential room. Plaintiff has further averred that towards southern side, an open piece of land belonging to Nagar Palika, Kekri is situated where one channel gate of his shop is opening and one window of his residential house is opening. Plaintiff alleged that Nagar Palika is inclined to sell this open piece of land to private respondent defendant No.3 which is not permissible and easementary rights of plaintiff, having air, light and entrance through the channel gate and window from southern side would be adversely affected/ infringed. With such averments, plaintiff has prayed a decree for permanent injunction against the Nagar Palika, Kekri and private respondents defendants be restrained from selling out the open land or to close his channel gate and window having opening on the open piece of land. It is worthy to note here that plaintiff has not sought any relief of declaration to acquire easementary right either by way of necessity or by way of prescription on the open piece of land of Nagar Palika, Kekri. Both respondents defendants submitted their respective written statements and denied plaintiff's right of easement as well as claim for permanent injunction as prayed for. The trial Court settled issued as per rival pleadings and recorded evidence of both parties. The trial Court, vide judgment dtd. 28/2/2008 observed that factual position as depicted by plaintiff in his plaint stands corroborated by the report of Court Commissioner which is available on record. The trial Court observed that it is not in dispute that open piece of land belongs to Nagar Palika, Kekri and neither plaintiff nor private defendants have any ownership rights over the same. If Nagar Palika, Kekri chooses to sell open piece of land treating the same as strip of land to private respondents defendants, it has right according to permissible rules, hence, no orders on this issue are required to be passed by the Court. The trial Court declined to interfere in the regular affairs of Nagar Palika, Kekri in respect of its right and jurisdiction to sell out their piece of land. In relation to right of private defendants to raise construction over the open piece of land and thereby to close the gate and window of plaintiff is concerned, the trial Court has already passed a decree in prohibitory form against defendant No.3 vide its judgment dtd. 28/2/2008 as indicated above. So far claim of easementary right of plaintiff is concerned, the trial Court has observed that it is not in dispute that plaintiff has opening of his property towards the eastern side and he has right of access to his property from the main road from eastern side. It has been noticed that channel gate opened by plaintiff in his shop at ground floor towards southern side is an alternative gate. In such factual matrix the trial Court has observed that for the property of plaintiff, he has his right of access, easement or having a right of way, air and light from eastern side. As such, the claim of easement from southern side through the open piece of land of Nagar Palika, Kekri was declined. It may also be noticed that during course of present suit at one point of time, Nagar Palika, Kekri vide order dtd. 18/3/1989 sanctioned map of plaintiff's property and approved the existence of opening of channel gate and window towards southern side, however, in appeal, the Additional District Collector vide its judgment and order dtd. 27/7/1994 has quashed the permission. Thereafter, it has not come on record that any fresh permission approving opening of channel gate and window of plaintiff towards southern side was extended by Nagar Palika, Kekri. With aforesaid findings, the trial Court decided plaintiff's suit vide judgment dtd. 28/2/2008 passing decree for prohibitory injunction against private respondents defendants.