SAJDA BEGUM AND ANOTHER Vs. VIMLESH CHOUBE

JUDGEMENT

(1.) Challenge in this civil revision is made to order dated 24.7.2014, whereby application of applicants/ plaintiffs filed under Order 23 Rule 1(3) r/w Section 151 of the Code of Civil Procedure (CPC) was rejected by court below.

(2.) Applicants/plaintiffs filed a suit for mandatory and permanent injunction against the respondent/ defendant. It was averred in the plaint that plaintiff No.1 purchased her property from Sharif Khan by registered sale deed dated 5.4.1963. The plaintiff is getting benefit of ventilation (air and light) from a big window situated in west side of her house since last 40 years. The land at that side was owned by Maksud Mohammed, the previous owner of land on west side. The plaintiff set up a case of easement in respect of land situated on west side of house of plaintiff and that land was stated to be servient heritage. It is averred that drainage of water coming out from the house of plaintiff also goes through the land on west side. This drained water goes to Hazi Wali Pond. It is averred that the defendant is having a house adjacent to the house of plaintiff on the north side, purchased by registered sale deed dated 20.11.2009. It was submitted that as canvassed by defendant, she also purchased the open land on west side of house of plaintiff by some sale deed. The defendant accordingly claimed her title from the open land towards west. Hence, a suit relating to easementary right was brought. The defendant filed her written statement by contending that plaintiffs are not having any easementary right from her land at west side of house of plaintiff. She stated that she has purchased 400 Sq.Ft. open land towards west of plaintiff's house vide sale deed dated 7.4.2010. On perusal of written statement, the plaintiff realised that both the aforesaid sale deeds dated 20.11.2009 and 7.4.2010 are from the same vendor and show the source of title of vendor as one document No. 3054 dated 6.3.1971. The plaintiffs then obtained copy of said document dated 6.3.1971 and upon perusal of it, gathered that vendor of defendant had purchased an area of 44.196 Sq.Mtr. by that document. The sale deed of house dated 20.11.2009 is of 44.197 Sq.Mtr. Thus, the entire land purchased by sale deed dated 6.3.1971 had been sold by sale deed dated 20.11.2009 and on 7.4.2010, the vendor had no land left from the sale deed dated 6.3.1971. Thus, the sale deed dated 7.4.2010 appears to be a bogus and fraudulent document thereby creating no valid title in favour of the defendant.

(3.) Shri Vivek Jain urged that after gathering aforesaid factual information, the plaintiffs realised that the suit on the basis of easementary right, which can be claimed against only owner of servient heritage, cannot as such continue. If they raise the issue that defendant canget no right or title over the land on west side by sale deed dated 7.4.2010, their suit is bound to fail due to the defect aforesaid. In other words, in absence of admitting the title, easementary suit will fail. In this backdrop, the plaintiffs filed an application under Order 23 Rule 1(3), CPC, which is erroneously rejected by court below. He submits that the applicants' case is covered by Order 23 Rule 1 (3) CPC and the court below has erred in rejecting the same.