Poonam Srivastav, J. - (1.) -Heard Sri V. K. Singh, learned counsel for the plaintiff-appellant and Sri S. K. Mehrotra advocate for the defendant-respondents.
(2.) THE plaintiff instituted a suit for permanent injunction to restrain the defendant-respondents from interfering in the rights of plaintiff in use of the land as passage as well as for removal of charan, nad etc., which was kept by the defendants-respondents on the disputed land. THE case of the plaintiff is that the disputed land i.e. Plot No. 1254 was purchased in the year 1983 and thereafter a house was constructed in the year 1985. THE disputed land was only passage for egress and ingress to the plaintiff's house. It was also pleaded that the defendants have started collecting building material, i.e., sand, bricks etc. with an intention to make construction and completely stop the passage which will cause irreparable loss to the plaintiff. THE defendants disputed the claim of the plaintiff. THE land which was appurtenant to the defendants' house was used since a very very long time much before the plaintiff purchased plot No. 1254 and constructed a house. In fact they are owners and the plaintiff has no right whatsoever. During the pendency of the suit, a commission was issued to make spot inspection. Oral statements were adduced from both sides. Lalji Lekhpal was examined as D.W. 1. On consideration of oral and documentary testimony as well pleadings on behalf of either parties, the trial court recorded a finding that the plaintiff has not perfected her easementary right of 20 years user since the admitted case is that the land in question was purchased only in the year 1983. The house was constructed in the year 1985 and, thereafter, Original Suit No. 534 of 1985, Smt. Urmila Devi v. Ram Dhani and others was instituted. However, the trial court decreed the suit in favour of the plaintiff to a limited extent that the plaintiff has a right of egress and ingress otherwise the house constructed by the plaintiff will be rendered useless without any passage. The defendants preferred a Civil Appeal No. 10 of 1987 against the judgment and decree dated 5.1.1987 passed by Vth Additional Munsif, Mirzapur. The lower appellate court did not agree with the reasonings and findings of the trial court. The lower appellate court was of the view that as averred in the written statement by the defendants, the disputed land is abadi of the defendants and they are in possession of the land in dispute since more than 40 years. Nad and khunta are also in existence since a very very long time. The lower appellate court did not agree with the findings of the trial court regarding egress and ingress, since no easementary right accrued to the plaintiff. Besides, it is not disputed that the plaintiff is using the disputed land only since last two years. Besides, on perusal of the evidence on record, it is established that there are two doors in the house, one opens towards north of the disputed land and another opens towards south of the house. P.W. 1 admitted in his statement that the disputed land is not part of the land which was purchased by him in the year 1983 and this admission stands corroborated by P.W. 2. The defendants are in occupation of the land in question prior to the Zamindari Abolition and, therefore, the plaintiff has no claim over it and not entitled for relief of injunction. I have considered the argument of the respective counsels and perused the entire record. It is true that the plaintiff has not pleaded or claimed any easementary right whatsoever in the plaint. She has unequivocally admitted that the house constructed on the plot was purchased only in the year 1983. The house was completed in the year 1985 and the suit was instituted in that very year. Thus, no easementary right accrued to the plaintiff. Besides, there is complete absence of pleadings of easementary right. Learned counsel for the defendant-respondents has placed the judgment of the trial court. No doubt the suit was decreed so far the right of egress and ingress was concerned and the defendants were injuncted from interfering in the said right but there is clear cut finding that there are two entrance and exit to the house, one towards disputed land and the other on the back side. This finding is confirmed by the lower appellate court in the appeal preferred by the defendant-respondents. Neither any appeal nor cross-objection was preferred by the plaintiff regarding the findings to the effect that there are two passage for egress and ingress, one on the south and the other on the north side. The specific finding by the trial court is that the plaintiff can also sue the passage on the south side which connects with chakroad and passage on the north side which is through the disputed land. Thus, it is evident that the claim of the plaintiff that she has no other entrance or exit to her house constructed in the year 1985, has also not been accepted by the trial court though the suit was decreed injuncting the defendants from interfering in the exit and entry towards north side. This part of the finding stands confirmed by the lower appellate court and thus I am of the considered view that this finding by the two courts is a finding of fact and cannot be interfered in exercise of jurisdiction under Section 100, C.P.C.
(3.) LEARNED counsel for the appellants has tried to emphasize on three substantial questions of law which he has framed but was not able to substantiate that the judgment of the lower appellate court suffers from any substantial error formulated in the memo of appeal. The finding of the trial court that the plaintiff has two passage for egress and ingress was neither challenged nor set aside by the lower appellate court and I do not think that this Court can interfere in the findings arrived at by the courts below which is based on sound reasonings. The argument of the learned counsel for the appellant that the plaintiff has acquired easementary right is without any basis. There is no such claim in the plaint and it is not disputed that the suit was instituted within two years from the date of purchase of the land and, therefore, the courts below were absolutely correct in refusing the claim of easementary right specially in absence of any pleadings to that effect. The Apex Court in the recent cases of Santosh Hazari v. Purshottam Tiwari, (2001) 3 SCC 179 and Govinda Raju v. Mariamman, (2005) 2 SCC 500, ruled that a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' question of law it must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. It will therefore, depend on the facts and circumstances of the each case whether a question of law is substantial one and involved in the case, or not ? The same view has been expressed by the Apex Court in the case of Rajeshwari v. Puran Indoria, (2005) 7 SCC 60.;