Jamuna Singh and Others vs Vishwanath Singh and Others

Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for the appellant at length. I do not find any error in the order dated 27.4.2011 through which Second Appeal was dismissed in limine under Order 41 Rule 11 C.P.C.

Learned counsel for the appellant has cited an authority of the Supreme Court reported in The J.&K Bank Ltd. vs. Smt. Neelam Rani 2008 (8) Supreme 392. In the said authority the High Court had dismissed the appeal by just two sentences which were as follows:

I have gone through the judgments of the courts below. There are concurrent findings and the points now been raised had been dealt with by the courts below.

The Supreme Court held that questions of law were involved hence High Court ought to have considered the questions raised before it, as indicated in the earlier part of the said Supreme Court judgment and thereafter by formulating or framing the aforesaid questions as substantial questions of law the appeal should have been decided by a speaking and reasoned order.

In the above authority the Supreme Court was of the opinion that questions of law were involved. Moreover, the High court in that case had rejected the Second Appeal without passing speaking order.

In the instant case the Hon''ble Judge who has since retired dismissed the Appeal under Order 41 Rule 11 C.P.C. on 27.4.2011 cogent reasons and holding that the findings recorded by the courts below were based on evidence and no substantial question of law was involved. It was found that there was a public way which had been obstructed by the appellants.

Learned counsel for the appellants has argued that there was no pleading of easementary right. Firstly this question is not covered by any substantial question of law. Secondly, plaintiffs were claiming that the property in dispute was a path way. They did not plead that it belonged to the defendants and they (plaintiffs) were having any easementary right thereupon. Even in the plaint easementry right was not claimed. If a land is used as path way then any person who has not got ownership right over the same can be restrained from making obstruction in the path way. Accordingly, there is absolutely no merit in the Review Petition hence it is dismissed.