The plaintiff's failure to establish ownership or easementary right, and the availability of an alternative access, led to the dismissal of the claim.

This appeal is by the defendant, which was admitted by a Bench of this Court on the following substantial question of law :-

“Whether the finding of the Court below that the suit passage is common passage is without any basis ?”

2. Facts giving rise to filing of the appeal briefly stated are that the plaintiff filed a suit on the ground that he is the owner of House No. 820 whereas the defendant is the owner of House No. 821. It was further pleaded that another House No. 822 is situate adjacent to the house of the plaintiff and in front of their houses, there is a common passage of 8 feet in width which is being used by the plaintiff for several years. However, the defendant raised construction of latrine as well as wall on the passage in dispute and has deprived the plaintiff of his right to use the passage in question. Accordingly, the plaintiff filed a suit seeking the relief of declaration, permanent injunction as well as mandatory injunction seeking removal of construction raised by the defendant on the passage in question.

3. The defendant filed the written statement in which inter-aliait was pleaded that the passage in question infact belongs to the defendant which is 4 feet in width. The passage in question is not the common passage and the door of the house of the plaintiff opens on the main road, thus, he has an alternative way to ingress and egress to his house. It was further pleaded that the plaintiff was involved in an illegal activities therefore, the defendant had constructed the boundary on the passage which belongs to the defendant.

4. The trial Court vide judgment and decree dated 31.07.2001 inter-alia held that the passage in question is the common passage which is being used by the plaintiff for several years. It was further held that the passage in question is the only way of access to plaintiff's house which has been obstructed by the defendant by raising construction thereon. Accordingly, the suit filed by the plaintiff was decreed. The aforesaid decree was affirmed by the lower appellate Court.

5. Learned Senior counsel for the appellant submitted that the finding recorded by the Courts below that the passage in question is the common passage, is perverse. There is no iota of material on record to show that the plaintiff is either the owner of the passage in dispute or has acquired easementary right over the same. While inviting the attention of this Court to the sale-deed Ex.P/7, executed in favour of the plaintiff, it is submitted that the sale-deed does not show that plaintiff is the owner of the passage in dispute. While referring to the evidence of the plaintiff who has been examined as PW-1 it was submitted that the plaintiff in his evidence has admitted that the width of the passage is 4 feet 6 inches and two passages are available to the plaintiff to approach his house. It is also submitted that the plaintiff in paragraph-15 of his evidence has admitted that the latrine on the passage in dispute was constructed by the defendant fifteen years ago. It is submitted that the plaintiff has not acquired easementary right over the passage in dispute, therefore, Courts below committed an error of law in decreeing the suit filed by the plaintiff.

6. On the other hand, learned Senior counsel for the respondent while inviting the attention of this Court to documents Exhibit P/4, P/5 and P/6 submitted that in the previous suit the defendant has admitted the existence of common passage and therefore, the defendant is estopped from contending that the passage in question is not the common passage. It is also submitted that both the Courts below on meticulous appreciation of evidence on record have recorded a finding that the passage in dispute is the common passage which does not call for any interference by this Court in exercise of powers under Section 100 of the Code of Civil Procedure.

7. I have considered the respective submissions made by learned counsel for the parties and have perused the r