Court No. - 1 Case :- SECOND APPEAL No. - 107 of 2010 Petitioner :- Muni Naroin Rai Respondent :- Awadhesh Narain Rai & Others Petitioner Counsel :- K.K. Rai,Kalindra Kumar Rai Respondent Counsel :- V.D. Ojha,K.K. Rai Hon'ble Rakesh Sharma,J.
Heard learned counsel for the parties and perused the materials on record.
This is a defendant’s Second Appeal preferred against the Judgment and
orders dated 6.10.2009, rendered by the lower Appellate court and 20.2.199,
rendered by the Trial court.
It emerges from the record that in respect of a passage, which was in between
the two houses of the same Family (Khandan), a dispute was raised by filing a
Suit in the year 1990 alleging, interalia, that a 2-1/2 Ft. wide passage was
available on one side of the house. Provision of such passage are being made
in the villages for the purposes of repairs of outerside of the walls, egress and
ingress of the women of the family and since there were old tiles roof, the rain
water was used to drop in the passage and flow through it. It was alleged that
the Defendant, appellant herein, had encroached upon the passage and raised a
construction. A First Information Report has also been lodged and the
litigation started between the parties.
The Trial court has framed 15 issues covering the dispute, after writing a
detailed judgment running in more than ten pages. The Trial court has held
that the respondents had encroached upon the passage towards the house of
the plaintiff. The details of the wall and such unathorised construction has
been indicated in the judgment.
It is noteworthy that a counter claim was also raised by the Defendant before
the Trial court, which was also partly allowed by the Trial court.
The First Appellate court, on Appeal, affirmed the findings recorded and
approved the conclusions drawn by the Trial court. All the issues and the
materials, oral and documentary evidence were weighed and appreciated by
both the courts below properly while arriving at the conclusions. Both the
courts below have recorded concurrent findings of fact, while forming their
opinion. The judgment rendered by the Trial court on 10.2.1999 has, in fact,
balanced equities between the contesting parties, who were members of the
same family. Passage was provided to the plaintiff for egress and ingress and
carrying out repairs works on the outer walls of the house. This narrow
passage of 2-1/2 Ft. was also being used by the women of the family. The
court below had noted in the findings that an indoor passage was available for
the use of the women of the house. As far as Defendant’s counter claim is
concerned, some relief has also been allowed to the other side. Thus, by the
impugned judgments and orders, equities have been balanced and as such no
party should feel aggrieved. This Court has also tested this case in the light of
the decisions of the Hon’ble Apex Court reported in AIR 2008 SC 1749,
Kashmir Singh Vs Harnam Singh and another, AIR 1999 SC 2213, Kondiba
Dagadu Kadam Vs. Savitribai Sopan Gujar and others and (1995) 6 SCC 213,
Kashibai W/O Lachiram and another Vs. Parwatibai W/o Lachiram and others
and finds that no ingredients, as required under Section 100 of the Code of
Civil Procedure, are attracted in the present case.
In view of the above, no substantial question of law arises to be considered in
this Second Appeal. Accordingly, the Second Appeal, being without having
any substance, is dismissed.
Order Date :- 28.1.2010
bgs/