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BRIJ KISHOR & ANOTHER versus DEVI DAYAL

High Court of Judicature at Allahabad

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Brij Kishor & Another v. Devi Dayal - SECOND APPEAL No. 496 of 1996 [2006] RD-AH 1373 (19 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 23

Second Appeal No. 496 of 1996

Brij Kishor & others                                                              ...................Appellants

Vs.

Devi Dayal                                                                               .............Respondent

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the appellants.

This appeal has been preferred against the judgment of the lower appellate court dated 11.1.1996, whereby the plaintiff's suit for permanent injunction was decreed after allowing the appeal and setting aside the judgment of the trial court.

The plaintiff respondent filed a suit for permanent injunction to restrain the appellant-defendants from opening any door towards his 'sahan' land.  The plaintiff claimed the disputed land  to be his property and has also alleged that way back in the year 1950 the defendants' predecessor had opened his door towards the disputed land about which there was some complaint in the Nyay Panchayat, which had directed the defendants to close the door and not to interfere in the aforesaid land. Now, since the defendants had again expressed their desire and intention to open the door towards the land in question, the suit was filed.

The suit was contested by the appellants defendants stating that the land in question is not 'sahan' land of the plaintiff and on the contrary it is a public path way over which the right of the passage is also equally available to the defendants. The defendants also disputed the decision of the Nyay Panchayat given in the year 1950.

The trial court,  on the basis of the pleadings of the parties, framed as many as six issues and in the findings it was recorded that the land in question was not a property of 'sahan' land of the plaintiff but found it to be public 'rasta'. Accordingly, finding no merits in the suit of the plaintiff, it was dismissed against which the appeal was preferred before the lower appellate court, which on due discussion and the material available on record, found that the land in question was definitely a land of 'sahan' belonging to the plaintiff and that it was not a public path-way. The passage available to the defendants for egress and ingress to their house was in west and not in the south of their residential house. Accordingly, the lower appellate court held that the suit land was 'sahan' land of the plaintiff and the decree for permanent injunction was granted and the appeal was allowed.

Aggrieved with the aforesaid judgment of the lower appellate court this appeal has been preferred.

I have heard the learned counsel for the appellants on admission of this appeal.

A perusal of the ground of appeal shows that the following three substantial questions of law have been formulated in it:

(a) Whether the facts and circumstances of the case and award of panchayat will be binding without being a rule of the court?

(b) Whether in the fact and circumstance of the case the panchayat award without stamp can be considered as piece of evidence even if the parties are different in the present case?

(c) Whether in the facts and circumstances of the case the lower appellate court can grant relief more than prayed for without any additional circumstance?

As regards the first question, the lower appellate court while considering the merits of the case, has found that the decision given by the Nyay Panchayat in a dispute between the parties way back in the year 1950, may not be treated as a document binding but has been taken to be a peace of evidence  showing to the fact that such a dispute arose between the plaintiff and appellants' predecessor in the year 1950 also. Obviously, if there is document specially a decision of the Nyay Panchayat, it has its evidentiary value and if the lower appellate court has interpreted this document in that perspective, this will not give rise to a substantial question of law for decision in this second appeal.

As regards the second point, no such objection was taken by the appellants defendants before lower appellate court about admissibility of the evidence, which was in form of judgment of Nyay Panchayat given in a dispute between the parties by the Panchayat in the year 1950. Obviously, this question as formulated by the appellant will not be treated as a substantial question of law for the purposes of decision requiring admission of this second appeal.

As regards the third point, suffice it to mention that the lower appellate court, after having considered the entire evidence available before it and after due discussion of the same in the findings recorded, has reached the conclusion that an interference was necessarily required to be made in the judgment delivered by the trial court and rightly concluded that the suit of the plaintiff for permanent injunction deserved to be decreed.

In the aforesaid view of the matter the judgment of lower appellate court does not appear to be challangeable and no interference against the same in this second appeal is warranted.

Since no substantial question of law has arisen in this appeal, it cannot be admitted and is hereby dismissed at the admission stage.

19.01.2006

gp/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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