Devendra Kumar Agnihotri vs Rajeev Bharti and Others

Sibghat Ullah Khan, J.—Heard learned counsel for the appellant at the admission stage.

This is plaintiff''s second appeal arising out of O.S. No.586 of 1992, which was dismissed on 16.07.2004 by Civil Judge, Junior Division, Shahjahanpur. Against the said decree plaintiff appellant filed Civil Appeal No.40 of 2004, which was dismissed on 25.08.2010 by A.D.J. Court No.3, Shahjahanpur, hence this second appeal.

The suit was filed by Ram Vilas and Devendra Kumar. Ram Vilas died during pendency of the suit. Devendra Kumar son of Ram Gopal claimed that he was the only legal representative of Ram Vilas, plaintiff No.1. Appeal was filed by Devendra Kumar alone. The relief claimed in the suit was of easementary right over a piece of land admeasuring 25 square meter which was described as sahan chabootara denoted by letters ka, kha, ga and gha in the plaint map. Houses of deceased plaintiff No.1 Ram Vilas and of defendants Om Prakash and Jagdish Prasad (defendants No.4 & 5) proforma defendants were shown towards west of the land in dispute with a passage intervening. Similarly, house of Devendra Kumar, plaintiff No.2 was shown towards south of the land in dispute with passage intervening. Original plaintiff No.1, Ram Vilas and defendants Jagdish and Om Prakash were real brothers. Contesting defendants No.1 to 3 were Krishna Kumar and his two sons. It was claimed in the plaint that plaintiff No.1 Ram Vilas, defendants No.4 & 5 each had one third share in the property in dispute. It was further alleged that plaintiff No.1, proforma respondents and Sita Ram grand-father of Devendra Kumar plaintiff No.2 were using the property in dispute for about 45 years for family functions. It was further pleaded that in between plaintiff No.1 and proforma defendants on the one hand and Ram Gopal father of plaintiff No.2, Devendra Kumar, a dispute arose in respect of land in dispute, which was resolved through written agreement dated 08.04.1975 in which easementary right of plaintiff No.1 and proforma respondents was accepted. It was further pleaded that over the land in dispute a puccawell existed from which all the people of the locality drew water and took bath and used the same for marriage and other functions and as people of the locality used the water of the said well hence they also acquired easementary right. It was further pleaded that original plaintiff No.1, Ram Vilas donated his one third share on 13.05.1991, to Bhagwan(God) of which plaintiff No.2 became mutawalliafter death of plaintiff No.1.

The courts below held that plaintiffs completely failed to prove easementary right. It was further held that on the one hand ownership right was being claimed and on the other hand easementary right was being claimed which were not compatible as easementary right can accrue only on the property of the others. It was further held that easementary right could not be gifted by constituting a trust.

The assertion of compromise in 1975 between plaintiff and proforma respondents completely demolished the theory of easement. Defendants No.1, 2 & 3 also pleaded that Ram Vilas on 13.05.1991 executed the sale deed of his one third share in favour of contesting defendant Krishna Kumar. Similarly Om Prakash proforma defendant No.4 had sold his share to Krishna Kumar on 12.04.1991.

In the plaint it was categorically stated that plaintiff and proforma defendants No.4 & 5 were having one third share each in the property in dispute. From the said assertion courts below rightly held that there was no question of accrual of easementary right over one''s own property.

In my opinion there is absolutely no error in the impugned findings. Plaintiff No.1 Ram Vilas on the one hand claimed ownership and on the other hand he had already transferred his share in the property in dispute to the contesting defendant Krishna Kumar and the third case taken up by him was that he had donated his easementary right to the God in 1991. All these three cases are mutually destructive. After executing the sale deed neither plaintiff nor proforma defendant respondent No.4 & 5 could assert any right in the property in dispute.

Accordingly, there is absolutely no error in the impugned findings. No question of law has wrongly been decided. No substantial questions of law as mentioned in the original memorandum of appeal and as added through amendment application dated 03.01.2011 are involved.

The following authorities of the Supreme Court cited by learned for the appellant are not applicable to the facts of the case:

(i) Kalyan Singh Vs. Smt. Chhoti and Others,

(ii) Umrah Khatoon Vs. Md. Zafir Khan and others,

(iii) Balwant Singh and another etc. Vs. Daulat Singh (dead) by L.Rs. and others,

(iv) Leela Soni and Others Vs. Rajesh Goyal and Others,

Second appeal is therefore dismissed under order XLI Rule 11, C.P.C.