RAJA MAHENDRA RIPUDAMAN SINGH Vs. BAJRANG PRASAD

JUDGEMENT

(1.) THIS second appeal has been filed by the defendant -appellant against the judgment and decree dated 16.9.1981 passed by XIII Additional Munsif, Agra in respect of O.S. No. 321 of 1976, Bajrang Pal vs. Maharaja Ripdaman Singh which was confirmed by the Court of XI Additional District Judge, Agra in Appeal No. 330 of 1981 vide its judgment and decree dated 10.04.1985. Both the courts below have decreed the suit of the plaintiff for permanent injunction. Hence, the defendant -appellant is before this Court in this second appeal.

(2.) BRIEF facts relevant for disposal of this appeal are that plaintiff Bajrang Prasad had filed a suit for permanent injunction with the contention that he is owner in possession of plot no. 3304 old, 3160/4 and 3160/5 new as shown by letters ABFE in the map measuring 15 biswas and lies in Mohal Gulzari Lal which is situate in Pinahat Tehsil, district Agra. The detail of which have been described at the foot of the plaint. It was further stated in the plaint that the defendants have started holding out threats to the plaintiff and his tenant, who with the permission and consent of the plaintiff have raised thatch wooden stalls as shown by letters OPQR. For over 4 years prior to that it was in use and occupation of the plaintiff. The defendant no. 1 through his employees in collusion with defendants no. 2 to 4 was threatening the plaintiff to remove the stalls by force whereas they have no right, title or interest to do so. It was further stated that in plot no. 3159 Now: 3303 old, there exists a Talab but for the last over 20 years, it is abandoned and has fallen into ruins. It had access from east and north side. So prayer was made to pass a decree of permanent injunction against the defendants restraining them from removing or dismentling the wooden stalls standing over the land shown by letters C D E F and from causing any interference in the peaceful possession and enjoyment of the plaintiff over the said property shown by letters CDEF.

(3.) DEFENDANT no. 1 filed his written statement wherein the plaint allegations were denied and in the additional pleas it was stated that the plaintiff has got no cause of action to file the suit. The plaintiff has got no right, title or interest in plot no. 3160. Plot nos. 3160/4 and 3160/5 have wrongly been shown in the site plan. As a matter of fact, there has been no demarcation of different Mohals or sub -numbers of plot no. 3160 and as such, the plaintiff according to his own allegations cannot claim existence of any area in the said plot. It was also denied that the plaintiff has got any area or interest in plot no. 3160 or any portion thereof. It was also stated that plot no. 3160 has never been a cultivatory plot but on the other hand, it has been lying as Banjar. There was absolutely no question of its being let out to the plaintiff by any of the Zamindars. The plaintiff and his father have been shrewd litigants of the village and they have been manoeuvring matters with village Lekhpal and Patwari simply with a view to grab the property of others. If any collusive and baseless entries have been procured by the plaintiff and the plaintiff has got his name entered in some revenue records, the same were not binding upon the defendants. There has always been a pucca Talab having walls on all the four sides in plot no. 3159, old no. 3303 from times immemorial. In order to reach the said Talab, there is a sloppy way from all the four sides. Agra Pinahat Road is situate towards West of this Talab and in order to reach the Talab from the road, there has always been a passage leading to the Talab. The said Talab is still in use and the said passage has been continuously used for the purpose of ingress and egress to the Talab without any obstruction or interference from any quarter. No wooden stalls have been raised by the plaintiff or his alleged tenants in the passage. In fact, the plaintiff illegally and unauthorizedly wants to raise or place such stall in the passage, under the garb of the suit. The plaintiff has no authority to do so and in case he places any such obstruction, the defendant has full authority to remove the same. It is not admitted that the passage to the Talab lies in plot no. 3160/4 and 3160/5 as has been wrongly alleged by the plaintiff. In the alternative, a plea was raised to this effect that the plaintiff has no right in any portion of plot no. 3160 or its sub numbers as alleged. It was submitted that the defendant has been using the passage land to the Talab since times immemorial openly, peacefully and as of right. He has thus perfected his right of passage by prescriptive easement and the plaintiff has no right, title or interest to obstruct the said right of the defendant.