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2019 Supreme(MP) 679
IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
G.S. AHLUWALIA, J.
Smt. Kanta Bai - Appellant
Versus
Umashankar and Others - Respondents
Second Appeal No. 173 of 2017
Decided On : 19-11-2019
Advocate Appeared:
For the Appellant :Shri N.K. Gupta, Senior Advocate with Shri R.S. Dhakar, Advocate.
The main legal point established in the judgment is that the High Court cannot interfere with the findings of fact recorded by the first appellate court, unless the same is found to be perverse.
Headnote:
Declaration and Permanent Injunction - Civil Procedure Code - Section 100 - [Declaration and Permanent Injunction] - [Section 100 CPC] - The court affirmed the judgment and decree passed by the lower courts, holding that the existence of a way (Gali) between the house of the defendant and the plot of the plaintiff is a pure question of fact and the courts below have given a concurrent finding of fact with regard to its existence. The court emphasized that while exercising the power under Section 100 of CPC, it cannot interfere with the concurrent findings of facts unless they are shown to be perverse. The court cited several precedents to support its decision, highlighting that the High Court cannot interfere with the findings of fact recorded by the first appellate court, unless the same is found to be perverse. The court concluded that the courts below did not commit any mistake by dismissing the suit and the appeal filed by the appellant.
Fact of the Case:
The plaintiff filed a suit for declaration and permanent injunction as well as for removal of illegal construction, alleging that the defendants had erected constructions that infringed on her privacy and property rights. The trial court dismissed the suit, and the appeal suffered dismissal as well.
Finding of the Court:
The court affirmed the judgments and decrees passed by the lower courts, emphasizing that the existence of a way (Gali) between the house of the defendant and the plot of the plaintiff is a pure question of fact and the courts below have given a concurrent finding of fact with regard to its existence. The court held that it cannot interfere with the concurrent findings of facts unless they are shown to be perverse.
Issues: The issues revolved around the existence of a way (Gali) between the house of the defendant and the plot of the plaintiff, the dismissal of the suit and the appeal, and the rejection of the application filed under Order XXVI Rule 9 of CPC.
Ratio Decidendi: The court emphasized that while exercising the power under Section 100 of CPC, it cannot interfere with the concurrent findings of facts unless they are shown to be perverse. The court cited several precedents to support its decision, highlighting that the High Court cannot interfere with the findings of fact recorded by the first appellate court, unless the same is found to be perverse.
Final Decision: The court affirmed the judgment and decree passed by the lower courts, dismissing the appeal filed by the appellant.
JUDGMENT :
1. This second appeal under Section 100 CPC has been filed against the judgment and decree dated 27/10/2016 passed by First Additional District Judge, Sironj, District Vidisha in Civil Appeal No. 1-A/2016, thereby affirming the judgment and decree dated 28/11/2015 passed by the Civil Judge, Class-I, Sironj, District Vidisha in Civil Suit No. 11-A/2015.
2. The necessary facts for disposal of the present appeal in short are that the plaintiff/appellant had filed a suit for declaration and permanent injunction as well as for removal of illegal construction. It is the case of the appellant that she had purchased two plots from Kallu Khan and Majeed Khan by registered sale deed dated 20/6/1996. The wall of the defendants was situated on the western side of one of her plot and after demolishing the said wall, the defendants have erected a window towards the plot of the plaintiff and when the son of the plaintiff objected to it, then the defendants assured that they would remove the same, however, the same was not done and accordingly, the son of the plaintiff served a notice on defendant no.1 on 23/1/2013. In spite of notice, the defendant continued with the construction and has again made a window, ventilator pipes are being used to discharge waste material on the plot of the plaintiff and the defendant has also constructed window and ventilator on the first and second floor facing towards the plot of the plaintiff.
3. Defendant filed written statement and denied the plaint averments. It is stated that there is a way (Gali) between the plots of the plaintiff and the house of the defendant, and the windows and ventilators as well as pipes are facing towards the said way (Gali).
4. The trial court after framing issues and recording the evidence, dismissed the suit by holding that the defendants no.2 and 3 have raised the construction after obtaining due building permission from the competent authority and the house of the defendant and the plot of the plaintiff are not immediately adjoining to each other and there is a way in between the same, as a result of which, it cannot be said that the privacy of the plaintiff is getting adversely affected.
5. The appellant, being aggrieved by the judgment and decree passed by the trial court, filed an appeal, which too suffered dismissal by judgment and decree dated 27/10/2016 passed by First Additional District Judge, Sironj, District Vidisha in Civil Appeal No.l-A/2016.
6. Challenging the judgments and decrees passed by the courts below, the appellant has filed the present appeal on the following proposed substantial questions of law:-
"a. Whether the Court Below erred in dismissing the suit and the appeal without inspecting the disputed property whereas the whole dispute is regarding existence of Gali, between the house of the defendant and plot of plaintiff.
b. Whether the learned Court Below erred in dismissing the suit on the ground that a gali is in existence between the plot of the plaintiff and defendant's house, but in the sale deed dated 21.07.2013 there is no such Gali was Shown.
c. Whether the Court Below erred in dismissing the suit even after the admission of the part of the defendants regarding existence of window on the southern side of the defendants house.
d. Whether the Appellate Court erred in dismissing the application filed by the appellant under Or. 26 Rule 9 just on the ground that the same was not filed before the learned trial court, whereas as per Order 26 Rule 9 the Trial Court itself has to call for such commission report looking to the issue involved in the present case. G. That, other grounds shall be urged at the time of final arguments."
7. It is submitted by the counsel for the appellant that the courts should have locally inspected the spot to verify with regard to the existence of Gali between the house of the defendant and the plot of the plaintiff and while giving a finding with regard to the existence of a Gali, the courts below have ignored the sale dee
