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A.K. Shrivastava, J.
Prembai (Smt.) and others v. Ghanshyam and others
Second Appeal No.524 of 2002 (Gwalior): against the judgment and decree passed by Third Additional District Judge, Vidisha in
Civil Appeal No.37-A of 2002; Decided on 7.5.2010.
(2) Civil P.c., 1908 -- O.26 R.9 -- suit for injunction -- open space between house and plot -- dispute as to encroachment -- spot inspection report should be called for by appointing Commissioner -- without such report suit cannot be decreed.
Since plaintiffs own case is that in between his plot and defendants house there is an open space. .
Held: Whether any cantilever is being projected on the plaintiffs plot or not, this was required to be ascertained by appointing a competent Commissioner by directing him to examine the spot and to give report as to whether any projection of cantilever covers any portion of the plaintiffs property or not and similarly whether the doors, windows and the drains are trying to be opened by the defendants on the plaintiffs property or not. Since this has not been done, according to me, the suit of plaintiff for injunction cannot be decreed. 1975 JLJ 440 (DB) relied on. 2000(6) Supreme 389 and 2009(1) MPWN 9 (SC) followed. [Para 12
(3) Civil P.C., 1908 -- O.26 R.9 n dispute about demarcation of boundaries -- Commissioner should be appointed to submit spot inspection report -- application for appointment of Commissioner already rejected -- principle of estopple -- not applicable against law.[Para 13
(4) Evidence Act, 1872 -- S.115 -- scope of -- principle of estopple- not applicable against law.[Para 13
(5) Civil P.C., 1908 -- O.14 R.1 --framing of issues -- duty of Court -- material proposition of fact and law affirmed by one party and denied by other -- issue is required to be framed by Court. 2007(1) JLJ 54 distinguished. [Para 14
(6) Specific Relief Act, 1963 -- S.38 (3) -- scope of -- obligation to enjoy his property -- trying to breach n suit for injunction is maintainable.1997 RN 38 distinguished.
[Para 15
¼1½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 38¼3½ && O;kns‘k ds fy, okn && xq`g rFkk Hkw[kaM d chp [kqyh txg && vf/kdze.k fo"k;d fookn && dfe‘uj fu;qDr dj LFky tk¡p fjiksVZ e¡xkuk pkfg, && ,slh fjiksVZ ds fcuk okn fMdzh ugha fd;k tk ldrkA ¼iSjk 12½ ¼2½ flfoy izfdz;k lafgrk] 1908 && vj- 26 fu-9 && O;kns‘k ds fy, okn && x`g rFkk Hkw[kaM ds chp [kqyh txg && vf/kdze.k fo"k;d fookn && dfe‘uj fu;qDr dj LFky tk¡p fjiksVZ e¡xkuk pkfg, && ,slh fjiksVZ ds fcuk okn fMdzh ugha fd;k tk ldrkA p¡wfd oknh dk Lo;a dk ekeyk ;g gS fd mlds Hkw[kaM rFkk izfroknhx.k ds x`g ds chp esa [kqyh txg gSA ¼iSjk 12½ vfHkfu/kkZfjr % D;k oknh ds Hkw[kaM ij dksbZ izkIr fudkyk tk jgk gS vFkok ugha] ;g l{ke dk dfe‘uj fu;qDr dj LFky dh tk¡p fjiksVZ nsus dk funsZ‘k nsrs gq, vfHkfu/kkZfjr fd;k tkuk visf{kr Fkk fd D;k izkIr dk dksbZ fudyk gqvk Hkkx oknh dh laifRr ds fdlh Hkkx dk lekos"k djrk gS] vFkok ugha rFkk ,sls gh fd D;k izfroknh }kjk oknh dh laifRr ij njokts] f[kM+fd;k¡ rFkk ukfy;k¡ [kksyus dk iz;kl fd;k tk jgk gS vFkok ughaA D;ksafd ,slk ugha fd;k x;k] esjs vuqlkj oknh dk okn fMdzh ugha fd;k tk ldrk FkkA 1975 ts ,y ts 440 ¼[kaM 9 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 12½ ¼3½ flfoy izfdz;k lafgrk] 1908 && vj- 26 fu-9 && lhekvksa ds lhekdau ds fo"k; es fookn & LFky tk¡p fjiksVZ izLrqr djus ds fy, dfe‘uj fu;qDr djuk pkfg, && dfe‘uj fu;qDr djus ds fy, vkosnu igys&gh [kkfjt && foca/k dk fl)kUr && fof/k ds fo#) ykxw ughaA ¼iSjk 13½ ¼4½ lk{; vf/kfu;e] 1872 && /kkjk 115 && O;kfIr && foca/k dk fl)kUr fof/k ds fo#) ykxw ughaA ¼iSjk 13½ ¼5½ flfoy izfdz;k lafgrk] 1908 && vj- 14 fu-1 && fook|dksa dh fojpuk && U;k;ky; dk drZO; && ,d i{kdkj }kjk rF; rFkk fof/k dh lkjoku izfriknuk izfrKkfir rFkk vU; }kjk iz[;kfr && U;k;ky; }kjk fook|d dh fojpuk fd;k tkuk visf{kr gSA 2007¼1½ ts ,y ts 54 izHksfnrA ¼iSjk 14½ ¼6½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 38¼3½ && O;kfIr && viuh laifRr dk mi;ksx djus dh ck/;rk && Hkax djus dk iz;kl djuk && O;kns‘k ds fy, okn iks"k.kh; gSA 1997 jk fu 38 izHksfnrA ¼iSjk 15½
1. This second appealhas been filed at the instance of some of the defendants assailing the judgment and decree passed by learned two Courts below whereby the suit for injunction of the plaintiff-respondent No.1 has been decreed.
2. The plaintiff filed a suit for injunction by pleading that he is having one plot admeasuring 30'-2"x76'.10" which was purchased by him vide registered sale-deed dated 25.11.1978 and, hence, he is the owner of the said property. In para 2 it has been pleaded that on the Northern side of his plot firstly there is an open land and thereafter the house of defendants is in existence. According to the plaintiff, the defendants are trying to open doors, windows and drains towards the plaintiff's plot which has been shown in the plaint map. Further, it has been pleaded that, the defendants are not having any right, title or interest to open windows, etc. on plaintiff's property and if they succeed later on they may also claim their right of easement and may also start to flow the filthy water from drains. In para 5 of the plaint it has been pleaded by the plaintiff that on 1.4.1985 by inserting the flagstones (patiya) the defendants have built up a cantilever having 1.6' width and 35' .8" length and when it was refrained by the plaintiff not to insert the flagstones (patiya) and also not to build any cantilever on it, they did not agree, as a result of which, he submitted a report on the same day in the police station. Further, it has been pleaded by the plaintiff that when on 2.4.1985 he started digging the plinth of his plot to erect East-West wall, defendants did not permit him and started quarreling. Hence, a suit for injunction has been filed by plaintiff praying that defendants be restrained not to stop the plaintiff from digging the plinth of his plot and to erect the wall and further they Should not open any doors, windows, drains, cantilever, etc. on the plaintiff's plot and the cantilever which has been erected towards the plaintiff's plot be removed by them.
3. Defendant No.1, defendants 2 to 7 and defendants 8, 9 and 10 filed their separate written statement.
4. Learned trial Court on the basis of the averments made in the plaint and denial in the different written statements, framed necessary issues and after recording the evidence of the parties decreed the suit of plaintiff. The first appeal which was filed by some of the defendants who are also appellants in this appeal has also been dismissed by the impugned judgment and decree.
5. In this manner, this second appeal has been filed by some of the defendants before this Court.
6. On 7.4.2003 this Court admitted the second appeal on the following substantial questions of law:
"1. Whether on the specific pleading of defendant that plaintiff is encroaching upon 3 ft. land-strip the suit could be decreed without demarcation of land through the Court?
2. Whether in the absence of pleading about public lane Courts below were justified in holding that defendant has failed to prove that there exists public land?
3. Whether in the facts of the case suit for permanent injunction is maintainable?"
7. The contention of Shri Naik, learned counsel for the appellants, is that as per own showing of plaintiff in para 2 of his plaint, adjoining to his plot there is an open land of defendants and thereafter their house is in existence. In para 5 it has been pleaded' by plaintiff that on 1.4.1985 a cantilever has been erected by the defendants having 1.6' width and 35' .8" length, but in absence of any agreed map and without appointment of Commissioner in order to ascertain whether the said cantilever is projecting any part of plaintiff's property (plot) or not, the learned two Courts below erred in substantial error of law in decreeing the suit of plaintiff. In support of his contention, learned counsel has placed heavy reliance on the Division Bench decision of this Court Durga Prasad v. Parveen Foujdar and others [1975 JLJ 4
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