MISHRI Vs. KHATUN

JUDGEMENT

(1.) THE dispute involved in this second appeal under Section 100 of the Code of Civil Procedure relates to the land in dispute situated by the side of the houses of the parties. THE brief facts of the case are as under.

(2.) ON 18. 6. 1974, Makhanlal and his son Tara Chand (to be jointly referred as plaintiffs and severally as plaintiffs No. 1 and 2 respectively) had filed a suit against Chanda and his sons Babu and Maqbool (to be jointly referred as defendants and severally as defendants No. 1 to 3 respectively) with the allegations that they had purchased some land from its owner Chanda defendant No. 1 and Nanua for Rs. 300/- vide sale-deed (Ex. 1) dated 19-2-1930 and the patta in respect thereof was issued in his favour on 6- 6-1934 and that they constructed their house in a portion of the above-said land and the land in dispute was left open by them for personal use. They pleaded that they were the owners in possession of the land in dispute and had been using it since 1930 and since after the construction of the house the openings of his latrine and chhajja etc. besides two drainages were on the side of the land in dispute and that about two years prior to the institution of the suit, with the permission of the plaintiffs, the defendants had constructed a 'chhappar' in a portion of the land in dispute with the understanding that they would remove the same as and when the plaintiffs would ask them to do so. It was further pleaded that the defendants wanted to take possession of the remaining portion of the land in dispute also by making construction but they had no right to do so. It was also pleaded that if the court held that the land in dispute did not belong to the plaintiffs, the plaintiffs were entitled to restrain the defendants from making construction in the land in dispute as the plaintiffs had acquired easementary rights in respect thereof. The plaintiffs, therefore, prayed that the defendants be restrained by way of an injunction from taking possession of the land in dispute or from any way obstructing the plaintiffs from enjoying the easementary rights therein. The suit was contested by the defendants who denied that the plaintiffs were the owners in possession of the land in dispute or that they (the defendants) had constructed the 'chhappar' therein about two years prior to the institution of the suit with the permission of the plaintiffs but pleaded that the land in dispute originally belonged to defendant No. 1 and one Bholu in equal shares and Bholu had sold his half share in the land in dispute in favour of the defendant No. 1 for Rs. 3,000/-vide sale-deed dated 6-9-1968 (Ex. A-1) and since beginning the defendants had constructed the 'chhappar' thereon and had even let out to different tenants at different times. The defendants further pleaded that the plaintiffs had constructed a 'nohra' on the entire land purchased by them in the year 1930 and no portion of the land had been left open and that the land in dispute did not form part of the land purchased by them under the sale deed Ex. 1. After framing the necessary issues and recording the. evidence produced by the parties, the learned trial Court came to the conclusion that the land in dispute belonged to the plaintiffs and that the defendants had no right to be in possession thereof or to make any construction therein and as such the plaintiffs had no easementary rights therein. In view of the finding that the plaintiffs were the owners of the land in dispute the suit of the plaintiffs was decreed against the defendants. The defendants took up the matter by filing an appeal in the District Court and during the pendency of the appeal the plaintiff No. l and defendant No. l died and appellant No. l Smt. Mishri was substituted as the legal representative of the plaintiff No. 1 and respondents No. 1, 4 to 6 were substituted as the legal representative of the defendant No. l. After hearing the learned counsel for the parties, the learned Additional District Judge, No. l, Alwar came to the conclusion that the land in dispute did not belong to the plaintiffs and that the plaintiffs having claimed the ownership of the land in dispute could not claim any easementary rights therein. Accordingly, the appeal was accepted and the suit filed by the plaintiffs was dismissed. Feeling aggrieved, the appellants have approached this Court by filing this second appeal.

(3.) THE point raised was also under consideration before the Hon'ble Supreme Court in case Chapsibhai Dhanjibhai Dand vs. Purushottam (1) and in the said case it was held that when the right in the land is asserted on the basis of title and the plaintiff fails to prove the ownership, he cannot assert his easementary rights in the land in dispute. This argument has, therefore, to be rejected.