1. The instant appeal is directed against the reversing judgment of the first appellate Court dated 8/5/2001passed by Additional District Judge, Gohad, District Bhind in Civil Appeal No. 14/2000 setting aside the judgment and decree dated 30/6/2000 passed by Civil Judge, Class-II, Gohad in Civil Suit No. 166-A/1998.

2. This Court vide order dated 26/04/2008 had admitted the appeal on the following substantial questions of law:-

“(1) Whether the land kept reserved for Sarvaganik Nistar or Charnoi Abadi land and whether this land can be converted for residential use ?

(2) Whether the first appellate Court has wrongly comes to the conclusion that the plaintiff has no any right upon the open land to enjoy it ?”

3. Necessary facts relevant for decision of this appeal as per plaint allegations are that a suit for declaration and permanent injunction was filed alleging that plaintiff has a residential house in village Khuman Ka Pura, Gurikha, Mazra, Tahsil Gohad, District Bhind. Entrance door of the house is on the western side and the adjoining area thereto was an open land which is a public land. A Hanuman temple is also situated in the vicinity of the area where people used to visit and worshiped. The open land was used as an access land. As per Khasra entries, open land of survey No. 2257 is a Charnoi land. Since the defendants have no right or title to the open land and were never in possession of the land, forcefully they intended to raise a construction thereon. On 19/6/1995, defendants threatened the plaintiff to close the door and that led the plaintiff to file of the civil suit for permanent injunction and to restrain the defendants not to interfere and obstruct the plaintiff’s easementary right to enjoy the open land where the entrance door opened. Defendants denied plaint allegations and averred that there was a boundary wall between the house of the plaintiff and the defendants premises. Defendants also disputed the fact that the open land is a public land. Instead, claimed it to be of their ownership. Thereafter, they questioned the right of the plaintiff to have access to open land for entrance in the house and suggested that the plaintiff can enter from the side lane opening in the southern side. The defendants further pleaded that they have converted the agricultural suit land into the Abadi land.

4. The trial Court framed as many as four issues as follow:-

okn iz’u fu”d”kZ

1& D;k okfn;k vius edku ds lkeus if’pe dh vksj fLFkr \ fl)

lkoZtfud Hkwfe dks miHkksx mi;ksx djus dh vf/kdkfj.kh gS\

2& D;k okfn;k dks vius edku ls fudyus dk lq[kkf/kdkj izkIr gS \ gk¡

3& D;k okfn;k }kjk mfpr U;k; ‘kqYd vnk fd;k gS \ fl) ugha

4& lgk;rk ,oa okn O;; \ pj.k 19

vuqlkj

5. The trial Court recorded the finding that the open land is a Government land. Suit was decreed with a direction that the defendant shall remove the boundary wall raised on the government land and shall not create any obstruction and hindrance on the plaintiff’s easementary right upon the open land.

6. Learned counsel for the appellant has pointed out that the first appellate Court has committed grave error of law and fact while reversing the judgment and decree of the trial Court. Learned counsel submitted that the first appellate Court has not at all considered the evidence led by the plaintiffs PW/1 to PW/3 in right perspective and reversed the findings of the trial Court. Learned counsel referred to paras 14 and 15 of the judgment of first appellate Court and submitted that first appellate Court ignored the findings recorded by the trial Court that the open land is a Government land and justified the construction of boundary walls raised by the defendants. It is further submitted that plaintiff’s easementary rights of way and light on the western side of this house was also negated by the first appellate Court on the ground that though the house was constructed in the year 1989 but the suit was filed in the year 1995, hence, no such right can be claim