Ramnarayan And Another vs Keerat And Another

This second appeal has been filed against the judgment and decree dated 7/3/2019 passed in Regular Civil Appeal No.16-A/2016 by IInd Addl.

District Judge, Gadarwara, District Narsinghpur affirming the judgment and decree dated 15/9/2016 passed in C.S. No.16-A/2016 passed by First Civil

Judge, Class-II, Gadarwara.

The case of the plaintiff, in short, was that he had pur-chased land vide registered sale-deed dated 10/7/1998 from defend-ant nos.1 and 2 that is

part of Khasra no.197/2F, area 0.300 hect., out of total 0.332 hect. land, Khasra no.197/2K area 0.307 hect. Out of total land of 0.329 hect. There was no way to approach this land, therefore, initially he did not want to finalize the deal, but defendant assured him that he will get right of way through the land forever. Thereafter deal was finalised and note was appended in the sale-deed regarding right of way. It was further averred by the plaintiff that on 27/11/14 when he was going to his land by tractor and putting pipeline for drawing water, he was stopped by the defendants. He was further threatened that they will kill him if he will use the way for going to his land. In view of the same, plaintiff respondent filed the suit for declaration and permanent injunction.

Defendant-appellant has filed the written statement and stated therein that location of way has not been mentioned, area over which the way he

was granted was not specifically mentioned, therefore, in absence of identification of the way the suit filed by the respondent plaintiff deserves to be

dismissed. Trial Court dismissed the suit on the ground that though there is admission on the part of defendant that registered sale-deed dated

10/7/1998 has been ex-ecuted by them, but plaintiff has to prove that he was stopped from going to his land by using the path/way allowed in sale-

deed and in absence of proof, the suit cannot be decreed. It was held by the trial Court that burden to prove that plaintiff was stopped from going to his field by the way is on the plaintiff. As plaintiff has not discharged the burden, therefore, only on basis of admission suit cannot be de-creed. Suit was dismissed by the trial Court.

The judgement and decree which has been passed by the trial Court was challenged before the appellate Court by Keerat Singh. Appellate Court

set aside the judgment and decree passed by the trial Court and decreed the suit. Appellate Court held that there is admission on the part of defendant regarding execution of sale-deed dated 10/7/1998. There is a note appended that purchaser will pass through the remaining area of the seller to his land and said right is granted forever. The measurement of way has been described as Gadidan ( - ) which means the area which is required for passing of a vehicle/Cart. It has been held by the appellate Court that plaintiff was not an encroacher he has been granted right of way and further if irrigation pipes of plaintiff is thrown away than his legal rights are affected and plaintiff has a case in his favour and civil suit filed by the plaintiff was decreed. Learned appellate Court granted decree that plaintiff will be allowed to use the land for a way as per sale-deed dated 10/7/98 and further allowed the prayer for grant of per-manent injunction that defendant no.1 and 2 will not restrain the plaintiff from use of disputed land.

Considering the facts and circumstances of the case, the second appeal is admitted for hearing on the following substantial question of law: —

“(i). Whether Appellate Court has committed an error of law in granting right of consumption (upbhog) which means (act of buying and using

things) of land to the plaintiff though in registered sale-deed dated 10.7.98 the right was only of way ( upyog )?”

As an interim measure, it is directed that appellant will al-low the respondent to use the way through his field for reaching the agricultural field purchased by the respondent and respondent will not use the said way (east to west) for any other purposes, i.e. for laying pipelines for irrigation etc.

or for any other use except for passing with tractor trolley.

List the matter for final hearing in due course.