The judgment clarified the application of easementary rights in the context of joint ownership and the burden of proof on the plaintiff to establish his claims.

JUDGMENT :

Narendra Singh Dhaddha, J.

1. The instant civil second appeal has been filed by the appellant-plaintiff (for short ‘the plaintiff’) against the judgment and decree dated 23.03.1995 passed by the Additional District and Sessions Judge, Dholpur (for short ‘the appellate court’) titled as “Ram Gopal Vs. Bhagwan Lal & Ors.”, where by the appellate court has dismissed the appeal filed by the plaintiff and upheld the judgment and decree dated 13.08.1986 passed by Mansif and Judicial Magistrate, Bari (for short ‘the trial court’) in Civil Suit No.91/75, whereby the trial court partly decreed the plaintiff’s suit for permanent and mandatory injunction.

2. Brief facts of the case are that the plaintiff filed a suit for permanent and mandatory injunction against the defendants in which it was mentioned that plaintiff and defendant Nos.3 and 4 Nemichand and Jawala Prasad respectively were having joint ownership of a property comprising of a house, shop and chowk. They are in possession of these properties from the time of their ancestors. House of the defendant Nos.1, 2 and 5 was situated towards the southern side of the chowk. They broke open the wall and in May, 1973 got constructed a window-cum-door and on 25.08.1974, they constructed a complete door. They also threatened to close Parnalas belonging to the plaintiff situated in the shop which open towards the southern side. By way of suit, the plaintiff prayed to close the door (D-2) and to restrain the defendants from taking out the drain at place ‘Z’. During the pendency of the suit, defendants also constructed four ventilators and five drains which should be required to be closed.

3. The defendants filed the written statement before the trial court and denied the averments made in the suit and mentioned that the said chowk did not belong to the plaintiff. It is a public property. The disputed door is in existence since beginning and they were having a thorough passage from the said chowk. They also mentioned that two houses were interconnected. During the pendency of the suit, drains were not been taken out. They also mentioned that ventilators did not breach any privacy of the plaintiff.

4. The trial court on the basis of pleadings, framed the following issues:-

(1) Whether the disputed chowk is in the joint ownership of the plaintiff and proforma defendants?

(2). Whether plaintiff correctly mentioned the boundaries of the disputed property?

(3). Whether the defendant Nos. 1, 2 and 5 were having a right of easement for ingress and egress from the disputed chowk and to carry out drains?

(4). Whether the defendant Nos. 1, 2 and 5 had wrongly constructed a door D-2 in the purported chowk in May, 1973?

(5) Relief?

(6) Whether during the pendency of the suit, the defendants expanded the door D-2 by 4’ 6” X 5’ 6” height and put a chajja over it upto the size of 4’ 7” for which the plaintiff has right to close it?

5. The trial court vide judgment and decree dated 13.08.1986 partly decreed the suit to the effect that the defendants will not open a drain at place ‘z’ and also will close the incomplete drain and parnalas opened towards chowk. However, under Section 22 of the Indian Easement Act, it was directed that the plaintiff could get ventilators closed by constructing a wall. Aggrieved with the said judgment and decree dated 13.08.1986, the plaintiff preferred an appeal before the Appellate Court. The Appellate Court vide its judgment and decree dated 23.03.1995 dismissed the appeal filed by the plaintiff and upheld the judgment and decree dated 13.08.1986 passed by the trial court.

6. By way of this second appeal, the plaintiff has challenged the judgment and decree dated 13.08.1986 passed by the appellate court.

7. This court on 06.05.2014 has framed the following substantial question of law:-

“Whether the courts below committed an error of law in appreciating the evidence on record and in recording the perverse findings against the appellant plaintiff in respect of the easementary rig