S.K.Phaujdar - (1.) THE oYily substantial question of law on which the appeal was admitted was framed as under :-Whether the plaintiff-respondent having filed the suit in respect of plot No. 27 being appurtenant to his house, could get a decree of demolition on the basis of easementary right?
(2.) IN his plaint, the plaintiff had made a prayer for demolition, for possession and for permanent injunction. It was contended in the plaint with reference to the map annexed to it that his house was shown in the map in blue colour. His sahan lay to the north which was shown in red colour and a part of the sahan lay towards the east which was shown in white. The plaintiff purchased this land from one Bharose by a sale-deed dated 29.11.1951 and was , in possession of the house and sahan. He was also in possession of the portion marked with the letters D C E FG HJK for the last 25 years. His father had also got the plot marked with the letters FLMG in 1948 from the landlord. The plot number of the house was given as 26. The sahan shown in red and white were covered by plot No. 27 while the plots within D C E F G H J K fell in plot No. 28 and that in FLMG fell in plot No. 29. The plaint map was subsequently substituted by another in terms of the order of the Court below dated 16.5.1977. This corrected map indicated that the dispute between the parties was for the northern portion of plot No. 27 and this portion was to the adjacent south of plot No. 28 and adjacent east of plot No. 23. This corrected map also indicated plot No. 29 as disputed sahan and plot No. 28 as the house of the defendant. The plaintiff stated in the plaint that the defendant was having his house in plot No. 23 and there was a door opening on the east and he was permitted to use plot No. 27 only for fetching water from a well that stood to the south of plot No. 27 and west of plot No. 27. It was alleged that the defendant had no other right either of user or otherwise on plot No. 27 but he had raised a wall and a shed thereon in the temporary absence of the plaintiff. The defence case was one of denial of the plaintiff's claim. It was stated that the plaintiff was not in possession of the portion of CDEFGHJK or FGM L. The wall in question, according to the defence, was made on plot No. 27 on the basis of the possession of the defendant. The possession of the plaintiff on the land in question was denied. The trial Court decreed the suit of the plaintiff and directed the removal of unauthorised constructions and delivery of possession to the plaintiff. There was also a direction restraining the defendants from creating any disturbance in the plaintiffs possession on the suit properly. Upon appeal by the defendant Ram Gopal. the first appellate Court modified the decree of the lower appellate Court and the defendants were directed to pull down the chhappar placed on the door which opened towards the east in the abadi plot No. 27 and to demolish the wall A B which was shown by letters N M in the Amin's map. The appellate Court found that the house of the plaintiff stood in plot No. 26 and a part thereof extended to plot No. 27. The wall in question was found lying towards the east of the house of the defendant and there was a chhappar and that wall was found to be on the north-western corner of the plot No. 27. He further found that the door of the defendant's house opened towards the east and he had been - fetching water from a well-situated towards the south of his house and have been using a strip of land of plot No. 27. He found further that the plaintiff admitted the existence of a rasta which passed through plot No. 27. The door of the house of the plaintiff opened towards the north of this rasta 2 cubits in width. There was an open space about 4 cubits wide and only thereafter (to the further north) was a bagar of Bhagwan Din now in possession of the defendant. It was held that the defendants have got an easementary right to use the land in plot No. 27 up to the neem tree and up to the well for fetching water and the parties had no right to make any constructions upon the rasta. So far the plot No. 28 was concerned it was held that the plaintiff never acquired any title thereon. For plot No. 29 the learned First Appellate Court found gave a decree for plot No. 27 only on the basis of his finding that the parties have no right to make any constructions upon the rasta although the defendants had a right of user thereon.
(3.) THE defendants, still aggrieved by the first appellate Court's decree filed this second appeal and the above substantial question of law was framed. It appears that the language of framing of the substantial question was not happy. THE question as framed would suggest that a decree has been granted in favour of the plaintiff on the basis of his easementary right. In fact, it is the defendant's easementary right that has been accepted and it was held that the defendants could, for a limited purpose of going to the well to fetch water, use plot No. 27 and both the parties had no right to make any constructions to close this way. Thus, it was not the easementary right of the plaintiff upon which the suit was decreed. This Court is called upon to see if there was any finding on the possession or ownership of the plot No. 27 as a sahan of either party as, admittedly, this plot lay in between plot No. 26 (of the plaintiff) and plot No. 28 (also belonging to the plaintiff). This Court is also called upon to see if there was any discussion of the admission of Sukru regarding existence of a road on plot No. 27 and existence of vacant land to the north thereof and existence of the bagar of the defendants thereafter. It was contended by the appellant that there was no finding that there was a wall on that portion of plot No. 27 which was in possession of the plaintiff. It was also contended that there was no rasta shown in the map and the learned counsel submitted that without a finding as to the exact location of the wall, there could not have been a direction for demolition.;