Nafr High Court · 2025
Case Details
1 Digitally signed by RAMESH KUMAR VATTI 2025:CGHC:2215 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Order reserved on : 26/11/2024 Order delivered on : 14/01/2025 Second Appeal No. 115 of 2015 1. Dwarika Prasad S/o Shri Lal Agrawal (Died And Deleted) Through Lrs. S/o As Per Honble Court Order Dated- 03-10-2024. 1(a) Smt. Sharda Agarwal W/o Late Dwarika Prasad Agrawal, Aged About 74 Years R/o H.No. 24/98, Ward Number 26, Ganj Line, Rajnandgaon, District-Rajnandgaon, Chhattisgarh. 1(b) Vivek Agrawal S/o Late Dwarika Prasad Agrawal, Aged About 53 Years R/o H.No. 24/98, Ward Number 26, Ganj Line, Rajnandgaon, District-Rajnandgaon, Chhattisgarh. 1(c) Smt. Poonam Agrawal S/o Late Dwarika Prasad Agrawal, W/o Shri Rajesh Agrawal, Aged About 51 Years R/o 264, Ward No.5, Bilha, District- Bilaspur, Chhattisgarh. ... Appellants/Defendants Versus 1. Satyanarayan Deleted, Chhattisgarh 2. Narayan Agrawal S/o Late Shri Satyanarayan Agrawal Aged About 51 Years R/o Bharat Mata Chowk Rajnandgaon, P.S. Rajnandgaon Tahsil And District Rajnandgaon Chhattisgarh 3. Radhakishan Agrawal S/o Late Shri Satyanarayan Agrawal Aged About 45 Years R/o Bharat Mata Chowk Rajnandgaon, P.S. Rajnandgaon Tahsil And District Rajnandgaon Chhattisgarh 4. Sharad Narayan Agrawal S/o Late Shri Satyanarayan Agrawal Aged About 45 Years R/o Bharat Mata Chowk Rajnandgaon, P.S. Rajnandgaon Tahsil And District Rajnandgaon Chhattisgarh 5. Shyam Narayan Agrawal S/o Late Shri Satyanarayan Agrawal Aged About 43 Years R/o Bharat Mata Chowk Rajnandgaon, P.S. Rajnandgaon Tahsil And District Rajnandgaon Chhattisgarh ... Respondents/Plaintiffs 2 For Appellants For Respondents : : Mr. Rajeev Shrivastava, Senior Advocate along with Mr. Ankit Singhal and Mr. Sourabh Sahu, Advocates Mr. B.P. Sharma, Advocate along with Mr. M.L. Sakat, Advocate Hon’ble Shri Justice Rakesh Mohan Pandey C.A.V. Judgment 1. This appeal has been preferred by defendant No.1 and was admitted on the following substantial questions of law vide order dated 09.03.2016:- “A. Whether the courts below has failed to consider the core issue which is identity of land in its proper prospective without appointing fresh local commissioner for identity of land especially by rejecting the demarcation? B. Whether the court below has failed to appreciate that burden lies on the plaintiff to establish the identity of land and easementary right over it?” 2. Originally the suit was filed by Satyanarayan against the sole defendant - Dwarika Prasad. The original plaintiff and defendant are heirs of a common ancestor. Late Heera Lal had 03 sons namely, Rogan Prasad, Jairam Das and Harnarayan. Jairam died issue-less,
Legal Reasoning
Romal Lal had a son namely, Prabudh Lal. Shrilal was the only son of Prabudh Lal. Srilal was issue-less and he adopted the defendant namely, the late Dwarika Prasad. Harnarayan had a son namely, Chauthmal. Chauthmal adopted the plaintiff Satyanarayan as his son. 3. Heeralal had joint family property situated at Survey No. 2093/2, 3 Bharatmata Chowk, Rajnandgaon ad-measuring 0.13 acre. Survey No. 2093/2 was divided between the plaintiff and defendant in the year 1939 and both got half-half share, but revenue records were not corrected accordingly. The mother of the plaintiff got constructed a house over her share and left 02 ft. of passage as vacant space on each side of the house for movement, light and air. 4. The original defendant was residing in the old house and the open space of 02 ft. was being used by the defendant also for air and light. It is further pleaded that the original defendant gradually encroached over 02 ft. vacant passage and started raising construction over it. The plaintiff attempted to stop the defendant and also lodged complaints at the police station on 28.03.1990 and 30.03.1990. The plaintiff filed a suit claiming therein relief of declaration of title and permanent injunction. By way of amendment, the plaintiff also sought relief of the demolition of the wall constructed by the defendant and restoration of the easementary right to light and air. After the death of the original defendant, his legal heirs were brought on record. The defendant filed a written statement and denied plaint averments. The defendant pleaded that the house of the plaintiff is situated at Survey No. 2093/2, whereas the house of the defendant is constructed over Survey No. 2093/1. It is further pleaded that the disputed passage is in the ownership of the defendant and wall of the plaintiff's house is a partition wall. It is also pleaded that there is no window and no doors on the east side of the wall of the plaintiff's house. It is also contended that there is a public path in front of the house of the plaintiff for air and light. It is also pleaded that the plaintiff is not entitled to get the relief 4 sought. 5. The plaintiff examined Narayan Agrawal as PW-1 and Mohan Parmar as PW-2, whereas the defendant examined Dwarika Prasad Agrawal as DW-1. 6. The plaintiff exhibited - Ex. P/1 to Ex. P/11 i.e. Ex. P/1 and Ex. P/2 are Nazul Khasra of the Years 1979-80; Ex. P/3 is the Order of Nazul Officer, Rajnandgaon; Ex. P/4 and Ex. P/5 are Nazul Maintenance Khasra of the Years 1987-88; Ex. P/6 is a Map of the House of Plaintiff; Ex. P/7 is a Certificate issued by the Contractor; Ex. P/8 is the Power of Attorney given by Satyanarayan Agrawal; Ex. P/9 is a Map of the house sanctioned by the Municipal Council in 1939; Ex. P/10 is the Permission from the Municipal Council to construct the house and Ex. P/11 is the Original Summons issued by Additional Tehsildar. 7. The defendant exhibited Ex. D/1 to Ex. D/13 i.e. Ex. D/1 is a Notice of Municipal Council Rajnandgaon dated 25.01.1988; Ex. D/2 is Memorandum of Municipal Council Rajnandgaon dated 10.02.1988; Ex. D/3 is the Order of Revenue Case No. 116A/6 dated 06.01.1982; Ex. D/4 is Lease Form – A; Ex. D/5 is Lease Form – E; Ex. D/6 is Nazul Maintenance Khasra of the year 1987-88; Ex. D/7 is Nazul Maintenance Khasra of Plot No. 20/93/2; Ex. D/8 is Building Construction Permission dated 27.08.1998; Ex. D/9 is Sanctioned Map; Ex. D/10 is Telegram from the Telecommunication Department; Ex. D/11 is Reply to Telegram; Ex. D/12 is Form – E dated 01.02.1982 with map and Ex. D/13 is the order of Collector in Revenue Case No. 11/70-a/20. 8. The learned trial Court based on the pleadings, evidence, and 5 documents concluded that the plaintiff failed to prove the fact that there was equal partition of Survey No. 2093 between the plaintiff and the defendant. It is further held that the plaintiff could not prove the fact that 02 ft. of vacant land was left for easement during the construction of the house by the mother of the plaintiff. The learned trial Court also held that the plaintiff has no easementary right over the suit property and the plaintiff could not prove the fact that on account of construction of the wall by the defendant, the right to light and air has been obstructed. Finally, the learned trial Court dismissed the suit. 9. The plaintiff filed the first appeal. The learned first appellate Court allowed the appeal and decreed the suit holding that Survey No. 2093 was divided into two parts bearing Survey No. 2093/1 and Survey No. 2093/2. It is also held that the learned trial Court failed to consider Ex. P/9 which is the map of the plaintiff’s house prepared in the year 1939 and establishes that the mother of the plaintiff had left 2 ft. passage while constructing the house. It is also held that the defendant could not produce evidence to establish that Survey No. 2093 was not divided equally among the parties. It is further held that the plaintiff is the owner of the suit land and therefore, he cannot claim easement. The learned Court below decreed that the plaintiff is the owner of Survey No. 2093/2 admeasuring 6.5 decimals and allowed the prayer of the plaintiff with regard to the demolition of the construction of the wall raised by the defendant. 10. Defendant No.1 moved an application under Section 100(5) of CPC for the formulation of additional substantial questions of law vide I.A. No. 06/2024, which was filed on 05.11.2024. The proposed additional 6 substantial questions of law are as under:- “(i) Whether the Plaintiff can institute the suit claiming title and easementary right together? (ii) Whether the suit filing by the plaintiff is maintainable as the plaintiff has taken the grounds which are mutually destructive to each other i.e. title and easementary right? ” 11. With regard to I.A. No. 6/2024, Mr. Rajeev Shrivastava, learned Senior Counsel argued that the plaintiff has sought relief of ownership and easement at the same time. It is contended that the right of easement can be claimed against the property of a third person. He would submit that the plaintiff has sought a declaration that he is the owner of the property and therefore, he cannot claim easementary right on his own property. In this regard, he placed reliance on the judgment passed by the High Court of Madras in the matters of K. Krishnamoorthy Vs. Nagammal & Others, 2014 SCC OnLine Mad 10758 and Vedavalli Ammal Vs. Kathayi Ammal decided on 30.08.2002 in Second Appeal No. 1288 of 1992, reported in 2002 3 MLJ 804, wherein it is held that where the plaintiff declares himself the owner of the land, he cannot be said to have had the requisite animus of enjoying the easement in the defendant’s property as he had always been conscious only on his ownership of the land. He further placed reliance on the judgment passed by the High Court of Kerela in the matter of C. Mohammed Vs. Annathachari, 1987 SCC OnLine Ker 118. 12. On the other hand, Mr. B.P. Sharma, learned counsel appearing for the plaintiffs would submit the plaintiffs have claimed ownership over the suit property and in the alternative, the plea of easement has been 7 taken. He would contend that the defendants have not raised any objection in this regard in their written statement. He would further contend that this issue has been raised for the first time at the second appellate stage. He would further submit that the plea of ownership as also of easement can be raised in one suit. He would also contend that such pleas do not always destroy each other, particularly when they depend upon the existence of a right. In support thereof, he placed reliance on the judgment passed by the High Court of Calcutta in the matter of Narendra Nath Vs. Abhoy Charan, (1907) ILR 34 Cal 51, where it is held that the suit is not liable to be dismissed because the plaintiff claims in the alternative over the same plot or ground rights of ownership and easement. He would contend that there is a distinction between the easement granted as of necessity and the easement acquired by prescription in accordance with Section 25 of the Limitation Act. He would contend that acquisitions of easement by prescription are to the use of light or air to and for any building or way or watercourse or the use of any water or any other easement. Such right accrues, if it is peaceably enjoyed as of right without interruption and for twenty years. He would argue that the application moved by defendant No.1 under Section 100 (5) of CPC is liable to be rejected as the substantial questions were already formulated by this Court and the application has been moved at a belated stage. 13. I have heard learned counsel for the parties at length, considered their rival submissions made herein above and perused the records of the courts below. 14. I would first decide on the application I.A. No. 06/2024 moved by 8 defendant No. 1 after going through the plaint, written statement, documents, evidence and contentions raised by the respective counsel. 15. A perusal of the plaint shows that initially, the plaintiff sought relief of declaration of ownership over 6.5 decimal of Survey No. 2093 including 2 ft. passage. The civil suit was filed on 02.04.1990, the amendment application was moved by the plaintiff on 03.01.2003 and the easementary right to light and air was also claimed, at the same time, the relief of demolition of the constructed wall was also sought. In the written statement, the original defendant denied the plaint averments. In para-5 of the written statement, the defendant has admitted the plea of partition between the parties. The defendant denied the fact that the passage of 02 ft. was left towards the east direction of the house of the plaintiff. It is specifically pleaded that the houses of the plaintiff and defendant were adjacent to each other and there was no space in between them. It is also pleaded that there was no ventilation or window on the wall on the east side. It is further pleaded that the defendant is raising construction on his own land. The written statement was filed on 22.11.1991. In para-02 of the written statement, the defendant has admitted the fact that the width of the passage was 2 feet. 16. Ex. P/1 is the revenue record. Survey No. 2093/2 over which a house is situated was recorded in the name of Dhanni Bai W/o Chauthmal. In Survey No. 2093/1, a house was recorded in the name of Roshan Prasad S/o Jairam Lal Agrawal. The back side of the document would show the area of plot 2093/1 i.e. 0.13 acre. The house is also 9 mentioned over it. It was recorded in the name of Dwarika Prasad, the adopted son of Shrilal Agrawal. Survey No. 2093/1 admeasuring 0.13 acre was recorded in the name of Dwarika Prasad pursuant to the order passed by Nazul Officer dated 06.01.1982. Ex. P/4-C and Ex. P/5-C would show that Survey No. 2093/1 admeasuring 0.13 acres along with a house was recorded in the name of Dwarika Prasad, the adopted son of Shrilal Agrawal whereas Survey No. 2093/2 along with a house was recorded in the name of Smt. Dhanni Bai. It would be worthy to mention here that the area is not mentioned in both documents. Ex. P/6 is a Map of the residential building of Satyanarayan Agrawal. The sanctioned plan would show that there was a space between the house of Satyanarayan Agrawal and the house of Dwarika Prasad Agrawal and likewise, there was a space between the house of Satyanarayan Agrawal and the house of Pukhraj Jhabak and it would also show that the area of the house of Satyanarayan Agrawal was 51.96 x 5.03 sq. m. which comes about 6.548 decimal. A certificate has been issued by one Rajesh Kumar Jain to the effect that the use of light and air has been obstructed due to the construction of the wall by the defendant. Ex. P/8 is the power of attorney given by Satyanarayan Agrawal to his son Narayan Agrawal to contest the case as he was suffering from a paralytic attack. 17. Ex. D/1-C is an intimation given by Municipal Corporation, Rajnandgaon to the defendant on 25.01.1988 regarding the dilapidated condition of the house. Ex. D/3 is the order passed by Nazul Officer on 06.01.1982. Ex. D/4-C is the renewal of the lease granted in favour of Dwarika Prasad. Ex. D/6 is the revenue record of 10 Survey No. 2093/1 admeasuring 0.13 decimal recorded in the name of Dwarika Prasad. Ex. D/7 is the revenue record of Survey No. 2093/2 where a house is recorded in the name of Dhanni Bai. The building permission was granted to the defendant on 23.03.1990 to construct a house. 18. Looking at the dispute between the parties, a Commissioner was appointed pursuant to the order passed by the High Court of Jabalpur dated 29.11.1990 to ascertain the claim of the plaintiff with regard to the easement. The Commissioner vide its report dated 04.04.1991 recorded a finding that due to the construction of the wall by the defendant, the use of light and air has been obstructed. It is also stated that if the construction is completed by the defendant it will obstruct the easementary right to light and air of the plaintiff. A map was also prepared by the Commissioner. One more report was submitted by the Engineer of the Public Works Department, Rajnandgaon dated 21.4.1997 wherein it was recorded that the construction of the wall by the defendant would obstruct the easmentary right of the plaintiff. 19. Now coming to the judgments relied on by learned Senior Counsel appearing for the appellants/defendants. 20. In the matter of Haryana Waqf Board Vs. Shanti Sarup and Others, (2008) 8 SCC 671, there was a dispute with regard to the demarcation of the suit property and an application was moved by the appellant- Board for the appointment of a Local Commissioner for demarcation but the second appeal was dismissed summarily by the High Court. In paras 5 and 6, the Hon'ble Supreme Court held as under:- 11 “5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorised possession in respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected. It is also not in dispute that even before the 6. appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.” In the present case, there is a dispute between the parties regarding shares. In the present case, two Commissioners were appointed by the learned trial Court. The first report was submitted by the Court Commissioner namely, Mr. A.D. Vaishnav on 04.04.1991 and another report was submitted by the Engineer of the Public Works Department, Rajnandgaon dated 21.04.1997. In both reports, it was found that the construction of the wall by the defendant would obstruct air and light to the plaintiff. Thus, the facts of the present case are entirely different from the facts of the cited case. 21. In the matter of Singhania Buildcon Pvt. Ltd. Vs. Union of India and Another decided 06.12.2012 in Writ Petition (Art.227) No. 859/2012, the coordinate bench of this Court held that the issue with regard to boundaries of the land, possession thereof and extent of possession should be decided as far as possible by taking recourse to the provisions of Order 26 Rule 9 of CPC by appointing a local 12 Commissioner. In para- 7, the Court observed as under:- “(7) Keeping in view the law laid down by the High Court in Durga Prasad v. Parveen, (1975) MPLJ 801/(1980), I am inclined to allow the application made by the petitioner (plaintiff) inter alia for the reason that the dispute involved in this matter does resolve around the boundaries of the land held by the parties to the suit, extent of possession held by the parties concerned on their respective lands which has given rise to dispute between them about their respective lands and lastly indentity of the land held by the parties in their respective rights qua each other. Such issue, as held by the High Court in case of Durga Prasad (supra) should be decided as far as possible by taking recourse to the provisions of Order 26 Rule 9 by appointing a local Commissioner by the Court after making spot inspection by the Commissioner and collecting necessary evidence in that behalf to enable the Court to record the findings in the civil suit on this material issue in so far as lands in question is concerned.” In the present case, the Commissioners were appointed twice, the reports were submitted and both reports were in favour of the plaintiff, however, the defendant failed to challenge their genuineness. 22. The defendant has also placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of The Principal Secretary, Revenue Department, State of Telangana & Anr. Vs. B. Rangaswamy (Dead) By Lrs. & Ors. in Civil Appeal No. 4669 of 2022 decided on 11.07.2022 wherein it is held that where the title and identity of the property are not established, the relief would not be available. The relevant para- 34 is reproduced herein below:- “34. Insofar as the aspect relating to possession, the High Court has adverted to this aspect of the matter in para 106 onwards and has found fault with the Trial Court that despite there being abundant documentary evidence the Trial Court has wrongly dealt with the issue of adverse posssession. In fact, the high court has failed to understand the context in which the consideration with regard to possession had arisen. As noted, if the title to the property along with its identity had been established, the possession would 13 authomatically follow from the date of purchase on 03.09.1964. However, in the instant case though the execution of a sale deed purportedly conveying an extent in Survey No. 129/56 wqas proved, the fact as to whether the extent as indicated in the sale deed was acutally located in the Survey No. 129/56 was not established by the plaintiffs from the discussion made by the Trial Court as well as indicated by us above. If that be the position, even if, the plaintiffs had actually come in physical possession of the extent of property which is not actually situate in Survey No. 129/56 and is the property which is claimed as the government property, the possession to be declared to have been perfected by adverse possession will have to pass the test to claim such right. It is in that context it was alternatively contended that the plaintiffs had also stated that they have perfected their title by adverse possession. It is in that context that the Trial Court firstly having noted that there are no documents to indicate possession has also taken note that the purchase being in the year 1964 and the suit being filed in the year 1981 the statutory period of 30 years to acquire right by way of adverse possession also does not arise. The High Court no doubt has taken into account the evidence of PW-1 who has stated that he has been in possession from the date of purchase. The fact also remains that subsequently when the compound wall was constructed it was demolished and it is the very case of the plaintiffs that since there was interference the suit was filed. Therefore, even if possession was taken by the plaintiff, in the context of claiming title, there is no other material. As already taken note by us, pursuant to the purchase, the mutation proceedings and the assessment for tax if any made has also not been brought on record by way of evidence. Therefore, in the context of the possession sought to be protected based on title, when the identity of the property is not established despite purchase claimed under the registered sale deed the relief as prayed for would not be available and therefore the Trial Court was justified in that regard.” In the present case, the suit property was not purchased through a registered sale deed. Survey No. 2093 admeasuring 0.13 acre was divided between the plaintiff and defendant. Both parties constructed houses over their share. Though there is no document to show partition between the parties, the factum of the partition has been admitted by the defendant in the written statement. The map Ex. P/6 14 would show that the plot area of the plaintiff is 239.37 sq.m. whereas the built-up area is 159.38 sq.m. and the open area is 75.65 sq.m. which shows that 02 ft. wide passage was left around the house and thus, the facts of the cited case are entirely different from the facts of the present case. 23. In the matter of Vedavalli Ammal (supra), the High Court of Madras has held that the plaintiff was proceeding on the basis that he is the owner of a land, he cannot be said to have had requisite animus of enjoying the easement as he had always been conscious only of his ownership of the land. In the case on hand, initially, the plaintiff sought relief of ownership over 02 two-feet passage where the construction of a wall was being raised by the defendant. Later on, the plaintiff also sought relief of easement of air and light and demolition of construction raised. The learned first appellate court has dismissed the claim of the plaintiff with regard to easementary rights. It is a case where the plaintiff is claiming the right to use air and light on the ground that he is the owner of the 02 feet passage which was left on the east side of his house. The plea of ownership as also of easement can be raised in one suit and such pleas do not always destroy each other, particularly when they depend upon the existence of the right enjoyed. Thus, the facts of the present case are distinguishable from the facts of the cited case. 24. In the matters of K. Krishnamoorthy (supra) and C. Mohammed (supra), it has been held that the claim has been made by the plaintiff on the basis of long user and ownership. It is further held that 15 ownership and easement rights are inconsistent and cannot co-exist in the same person. The relevant para- 2 of C. Mohammed (supra) is reproduced herein below:- “2. The Courts below held that there cannot be any easement by prescription as the plaintiff admitted that the disputed property belongs to him. The only question to be considered is as to whether a plea of ownership and a plea of easement can be advanced alternatively in a suit. Ownership and easement right are inconsistent and cannot co-exist in the same person. S. 4 of the Easements Act defines ‘Easement’ as follows: “An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.” An easement is a privilege, without profit, which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason whereof the latter is obliged to suffer or refrain from doing is something on his own tenement for the advantage of the former. The following six characteristics are essential to an easement:- (1) There must be a dominant and servient tenement; (2) An easement must accommodate the dominant tenement; (3) The right of easement must be possessed for the beneficial enjoyment of the dominant tenement; (4) Dominant and servient owners must be different persons; (5) The right should entitle the dominant owner to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, the servient tenement; and (6) The something must be of a certain or well defined character and be capable of forming the subject matter of a grant. As existence of both a dominant tenement and servient tenement is essential to the creation and existence of an easement it is difficult to conceive of a position where a person can claim easement by prescription when he owns 16 both the tenements. It may be permissible in the plaint to advance an inconsistent plea of ownership and easement alternatively, but it is necessary that the plaintiff should press one of them only either at the stage of evidence or a subsequent stage. When the dominant and servient tenement are in the ownership and possession of the same person acts done by him on the servient tenement are clearly referable to his possession of that tenement and hence there cannot be any easement by prescription.” In the above cited judgment, it is held that it may be permissible in the plaint to advance an inconsistent plea of ownership and easement alternatively, but it is necessary that the plaintiff should press one of them only either at the stage of evidence or a subsequent stage. In the present case, the plaintiff has claimed ownership over the property and that was one of the reasons to deny the relief of easementary right by the learned first appellate Court. 25. In the matter of Manisha Mahendra Gala and Others Vs. Shalini Bhagwan Avatramani, (2024) 6 SCC 130, the Hon’ble Supreme Court held that the general power-of-attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. The relevant paras - 28 and 29 are reproduced herein below:- “28. The law as understood earlier was that a general power-of-attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. However, subsequently in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217, this Court held that the power-of-attorney holder can maintain a plaint on behalf of the person he represents provided he has personal 17 knowledge of the transaction in question. It was opined that the power-of-attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance or the offence. However, to resolve the controversy with regard to the powers of the general power-of-attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions on the aspect including that Janki Vashdeo Bhojwani in A.C. Narayan v. State of Maharashtra, (2014) 11 SCC 790 concluded by upholding the principle of law laid down in Janki Vashdeo Bhojwani and clarified that power-of-attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The power-of-attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the general power-of-attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the power of attorney; meaning thereby ordinarily there cannot be any sub- delegation. 29. It is, therefore, settled in law that power- of-attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene. The aforesaid power-of-attorney holder PW 1 had clearly deposed that he is giving evidence on behalf of Plaintiffs 2 to 4 i.e. the Galas. He was not having any authority to act as the power of attorney of the Galas at the time his statement was recorded. He was granted power of attorney subsequently as submitted and accepted by the parties. Therefore, his evidence is completely meaningless to establish that Galas have acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted.” In the present case, the original plaintiff could not appear before the learned trial Court as he had sustained a paralytic attack. PW-1 Narayan Agrawal his son appeared through power of attorney. This 18 witness exhibited revenue documents to prove the claim of ownership of the original plaintiff. The power of attorney holder did not appear in the witness box to prove any transaction between the parties. He deposed before the learned trial Court on the basis of exhibited documents only. It would be worthy to mention here that in this regard, no substantial question of law has been formulated or proposed. Therefore, the judgment cited by the counsel for the appellants is of no help. 26. In the matter of Santosh Hazari Vs. Purushottam Tiwari (Deceased) By Lrs., (2001) 3 SCC 179, the Hon’ble Supreme Court has held that the appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and the whole case therein is open for rehearing on questions of facts and law. The judgment of the appellate court must reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put forth. The relevant para 15 is reproduced herein below:- “15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole 19 case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai, (1983)1 SCC 35) The rule is – and it is nothing more than a rule of practice – that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court 20 and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenged before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.” 27. In the present case, the first appellate Court has dealt with all issues framed by the learned trial court and also examined documentary as well as oral evidence put forth by both parties. The learned first appellate Court relied upon 02 reports submitted by the Commissioners dated 04.04.1991 and 21.04.1997. With regard to the ownership of the plaintiff over 02 feet passage, the learned first appellate Court relied on the sanctioned map and thus, the learned first appellate Court has complied with the requirement contemplated under Order 41 Rule 31 of CPC and has passed a well-reasoned judgment. 28. Mr. B.P. Sharma, learned counsel appearing for the respondents/plaintiffs has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Rashmi Kant Vijay Chandra vs. Baijnath Choubey and Company, AIR 2024 SC 4978, where Section 100 of CPC has been dealt with. In this case, the Hon’ble Supreme Court has held that the High Court can exercise its 21 jurisdiction on the basis of substantial questions of law which are to be framed at the time of admission and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The relevant paras- 14 to 17 are reproduced herein below:- “14. This Court in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor5 , while considering the scope of Section 100 of the CPC, observed: “10. Having given our anxious consideration to the rival contentions aforesaid, we find ourselves unable to sustain the decision rendered by the learned Single Judge of the High Court for the reasons that follow: It has to be kept in view that the learned Single Judge was exercising jurisdiction under Section 100 CPC as it was amended in 1976. A mere look at the said provision shows that the High Court can exercise its jurisdiction under Section 100 CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being, Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] and Sheel Chand v. Prakash Chand [(1998) 6 SCC 683] that the judgment rendered by the High Court under Section 100 CPC without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed.” (Emphasis supplied) 15. This exposition came to be followed by this Court in Narayanan Rajendran v. Lekshmy Sarojini6 wherein after tracing out a catena of judgments on Section 100 of the CPC, it was observed: “70. Now, after the 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. 22 The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law.” (Emphasis supplied) 16. While placing reliance on the above observations, this Court in Hardeep Kaur v. Malkiat Kaur7 affirmed that it is the duty of the High Court to frame substantial questions of law before hearing an appeal under Section 100 of the CPC and such a second appeal has to be heard and decided on such substantial question of law. 17. More recently, in Kirpa Ram v. Surendra Deo Gaur8 and Suresh Lataruji Ramteke v. Sau. Sumanbhai Pandurang Petkar9, it was reiterated that High Courts are required to hear second appeals under Section 100 of the CPC only on the satisfaction that there exists a substantial question of law and the appeal has to be heard on the question so formulated.” In the matter of Akhelesh Kumar Alias Hansu and Another v. Shardachandra Bhate and Another, 2022 SCC Online MP 5141, the High Court of Madhya Pradesh has held that the plaintiff may rely upon several different reliefs in alternative and similarly, the defendant can also raise several defences in alternative and the expression ‘inconsistent’ means mutually repugnant, contradictory or irreconcilable. The relevant para- 6 is reproduced herein below:- In case of C. Mohammed v. Ananthachari, AIR “6. 1988 Ker 298, it is held that “it may be permissible in the plaint to advance an inconistent plea of ownership and easement alternatively, but it is necessary that the plaintiff should press one of them only either at the stage of evidence or a subsequent stage. When the dominant and survient tenement are in the ownership and possession of the same person acts done by him on survient tenement are clearly 23 referable to his possession of that tenement and hence, there cannot be any easement by prohibition.” In the matter of Narendra Nath (supra), it is held that the suit is not liable to be dismissed because the plaintiff claims in the alternative over the same plot or ground right of ownership and easement. The relevant para is reproduced herein below:- “The truth of the matter seems to me to be this that while there is an undoubted inconsistency in claiming a right of ownership and a right of ownership jointly in the same land, there is no real or necessary inconsistency in claiming either of these rights in the alternative. In a case like the present, a plaintiff may very well allege bona fide, “I believe the land to be mine, but I may be unable to prove it; if I should fail to prove it, I can at any rate prove that I have been using the right of way as an easement uninterruptedly and as of right for 20 years.” There appears to me no reason in principle, why a claim like this in the alternative should not be tried, or why the plaintiff should be forced, first to bring a suit to establish his right of ownership, and if that fails, then to bring a suit to establish the right of easement. …..” 29. Now coming to the substantial questions of law proposed by the appellant/defendant. 30. A perusal of the written statement would show that the defendant has not taken any plea with regard to the maintainability of the civil suit on account of the inconsistent plea of ownership and easement right together. The plaint would show that initially relief of declaration of ownership over 6.5 decimal of Survey No.2093 including passage was claimed by the plaintiff. Later on, an application for amendment was moved wherein relief of easementary right and demolition of construction raised by the defendant was sought. The application moved by the plaintiff for amendment was allowed by the learned Trial Court vide order dated 07.05.2003. The defendant failed to challenge the order passed by the learned trial Court, whereby the application for 24 amendment was allowed. A perusal of the plaint would show that the plaintiff has claimed ownership over the suit property and there is not much pleading with regard to easementary rights. The High Court of Kerela in the matter of C. Mohammed (supra) has held that it may be permissible in the plaint to advance an inconsistent plea of ownership and easement alternatively, but it is necessary that the plaintiff should press one of them only either at the stage of evidence or a subsequent stage. In the present case also, the plaintiff mainly has sought relief of ownership. In the matter of Narendra Nath (supra) also, it is held that the plaintiff can make a claim in the alternative over the same plot or ground rights of ownership and easement. Also, from the facts discussed and perused, the present dispute appears to be of partition and not of easementary right. Therefore, in the opinion of this Court, I.A. No. 06/2024, the application for the formulation of additional substantial questions of law is misconceived and the same is liable to be and is hereby rejected. 31. Now coming to the first substantial question of law. 32. Narayan Agrawal was examined as PW-1. He is the son of the original plaintiff. He stated that his father suffered a paralytic attack and he was bedridden. He further deposed that Survey No. 2093/1 admeasuring 13 decimals was partitioned between the plaintiff and defendant 40-50 years ago. He stated that the 02 ft. passage was within the possession of the plaintiff and being the son of the original plaintiff, he has knowledge of these facts. In para-14, this witness has admitted that the plaintiff and the defendant are relatives, there was a partition between them and they were in possession of their respective shares. This 25 witness denied the suggestion that the 02 ft. wide passage was in possession of the defendant. 33. PW-2 Mohan Parmaar was a tenant of the plaintiff. In-chief, he has stated that there was a 03 ft. wide passage between the house of the plaintiff and the defendant. In cross-examination, this witness has stated that with regard to the ownership, he has no knowledge. 34. Dwarika Prasad Agrawal/defendant examined himself as DW-1. In- chief, he stated that the 02 ft. passage had been in his possession since inception. He further stated that a lease of 273 sq.m. land was granted in the revenue case and the 02 ft. passage is a part of the leased property. In para- 3, he has admitted the factum of partition between the parties. He denied the averments made by the plaintiff with regard to easementary rights. In cross-examination, particularly in para- 17, this witness admitted the fact that when he started raising construction, the suit was filed. In para- 20 this witness admitted that the property was partitioned during the lifetime of their ancestors. He denied the fact that the house of the plaintiff was constructed in the year 1932. 35. In the present case, there are two reports of Commissioners dated 04.04.1991 and 21.04.1997. The reports state that the construction of the wall by the defendant on the east side of the plaintiff’s house would obstruct the right to air and light and would close ventilation and windows. Survey No. 2093 admeasuring 0.13 acre was partitioned between the plaintiff and defendant. The fact with regard to partition is not in dispute. The map would show that the total area of the land of the plaintiff was 6.5 decimal and passage was also left around the 26 house meaning thereby both the parties got an equal share. As there was no dispute with regard to boundaries, there was no need to appoint a Commissioner and the parties were under an obligation to prove their share and boundaries by adducing documentary as well as oral evidence. The defendant has also admitted the factum of partition, but the defendant could not establish any different partition between them. The defendant could not prove the fact that he was the owner of the entire 0.13 acres of land. Survey No. 2093 was divided into two parts i.e. Survey Nos. 2093/1 and 2093/2, but the area is not mentioned in the revenue records. The defendant has not denied the title and right of the plaintiff over Survey No. 2093/2. The house was constructed by the plaintiff in the year 1939. Ex. P/9 is the sanctioned map and Ex. P/10 is the grant of permission which would prove that the plaintiff was in possession of 02 feet passage. The plot area of the plaintiff as per Ex. P/6 is 239.37 sq.m., whereas built-up is 159.38 sq.m. and open area of 75.65 sq.m. was also left. The defendant could not adduce any documentary evidence to prove the contrary. The defendant could also not prove the fact that he was in possession of more than 6.5 decimal of land. 36. Taking into consideration the facts discussed above, the substantial question of law No. ‘A’ is decided in negative against the appellant/defendant. 37. Now coming to another substantial question of law. 38. The claim of the plaintiff with regard to easementary rights was declined by the learned first appellate Court; therefore, there is no need to deal with this issue. The burden was shifted by the learned first 27 appellate Court on the defendant to establish the identity of the suit property. The documents Ex. P/6, Ex. P/9 and Ex.-P/10 would reveal that the plaintiff is in possession of 6.5 decimal of land. The defendant could not adduce any evidence to prove the contrary, therefore, the learned first appellate Court rightly held that the defendant ought to have adduced documentary and oral evidence to prove the fact that he was in possession of 6.5 decimals as well as 02 feet of passage. The plaintiff by adducing documentary as well as oral evidence discharged his burden, therefore, the onus shifted on the defendant to prove the contrary. 39.
Decision
In view of the above-discussed facts, the substantial question of law No. ‘B’ is also decided in negative against the appellant/defendant. 40. As a result, the appeal fails and is hereby dismissed. No order as to cost(s). 41. A decree be drawn accordingly. Sd/- (Rakesh Mohan Pandey) Judge vatti