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Aditya Narain v. Smt. Kairry - SECOND APPEAL No. 1140 of 2006 [2007] RD-AH 1576 (1 February 2007)


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Court No. 24

Second Appeal No. 1140 of 2006

Aditya Narain......................................................................Appellant


Smt. Kairry.............................................................. ......Respondent                                                    


Hon'ble Umeshwar Pandey, J.

Heard the learned counsel for the appellant.

The plaintiff-appellant filed suit for permanent injunction against the defendant-respondent stating that in a portion of plaintiff's land Plot No. 1072, the defendant's ancestors were permitted by plaintiff's ancestors to construct a house and have their Sahan in the south. This house of defendant was constructed in accordance thereto long back, but later on the defendant tried to start raising some partition wall and put certain pegs in the open land and thereby she tried to encroach over plaintiff's property. The defendant contested the suit stating that the house and her Sahan is located in the land since the time of her ancestors. She has every right to use the Sahan land and as such she cannot be restrained by means of permanent injunction to be obtained by the plaintiff from the Court.

The courts below upon the pleadings and on the basis of the evidence adduced have recorded the finding that since admittedly the defendant has her house and the Sahan in the disputed property no sort of permanent injunction would be granted against her and the suit has, thus, been dismissed.

The learned counsel appearing for the appellant submitted that since the defendant is trying to obstruct in the possession of the plaintiff over the joint Sahan land of Plot No. 1072 of which she is not owner, the cause of action for plaintiff's entitlement to the relief has accrued in his favour. Thus, the counsel has tried to stress that the court should have looked into this aspect of the matter and restrained the defendant from obstructing in plaintiff's user of the Sahan land.

A perusal of the judgment of both the courts indicates to the fact that since there is admission on the part of the plaintiff in his plaint itself that the land of the residence and its Sahan was given by his ancestors to the defendant's ancestors long back, she had every right to have its user as such. No restrain in the same against her is possible through a decree of permanent injunction. The concurrent decisions of the courts below appear to be wholly justified in the face of the plaintiff's admission itself regarding the defendant's title over the user of land of Sahan which had been given to her ancestors by the plaintiff's ancestors long back. If the defendant is using this Sahan land as such, it also includes her right to use it for keeping cattle for which some pegs to tie those cattle can be put in the land. If she is trying to separate her Sahan land of common, user it is also permissible under law. There is absolutely no legal justification to restrain her from such user of that property. The decisions so recorded by the courts below,, in the aforesaid view of the matter, appear to be wholly correct and no interference in the second appeal is required.

This appeal is without substance and it fails and is hereby dismissed at the admission stage itself.




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