Judgment reserved on 07.05.2025 Judgment delivered on 16.07.2025. Shri Kaushik Kumar Katta S/o Shri v. 1
Case Details
1 2025:CGHC:33308 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 170 of 2006 Judgment reserved on 07.05.2025 Judgment delivered on 16.07.2025. Shri Kaushik Kumar Katta S/o Shri Kishore Kumar Katta Aged About 30 Years R/o Dani Bada, Budhapara, Raipur, and Shop in Front of Girdhar Bhawan, Sadar Bazar Raipur, Tehsil and District Raipur, C.G. ... Appellant/Defendant No.1 versus 1. (Deleted) Santosh Rao Dani (Died) As Per Hon'ble Court Order Dated 03- 04-2025. 2. Madhukar Rao Dani (Died) Through Lrs.- As Per Hon'ble Court Order Dated 14-10-2014. 2.1 - (A) Smt. Shashikant W/o Late Madhukar Rao Dani Aged About 70 Years R/o Danibada, Budhapara, Raipur Tahsil And District- Raipur (C.G.) 2.2 - (B) Ravindar Dani S/o Late Madhukar Rao Dani Aged About 52 Years R/o Danibada, Budhapara, Raipur Tahsil And District- Raipur (C.G.) 2.3 - (C) (Deleted) Rakesh Dani (Died), Through Lrs.- As Per Hon'ble Court Order Dated 03-04-2025. 2.3.1 - (1) Vanita Dani W/o Late Rakesh Dani Aged About 55 Years R/o Budhapara, Danibada, Raipur, Tahsil And District- Raipur (C.G.) 2.3.2 - (2) Sidharth Dani S/o Late Rakesh Dani Aged About 30 Years R/o Budhapara, Danibada, Raipur, Tahsil And District- Raipur (C.G.) 3. (Deleted) Shri Bala Sahab Dani (Died), Through Lrs.- As Per Hon'ble Court Order Dated 03-04-2025. 3.1 - (A) Shailesh Dani S/o Late Shri Bala Sahab Dani Aged About 60 Years R/o Danibada, Budhapara, Tahsil And Distt.- Raipur (C.G.) 2 3.2 - (B) Rajesh Dani S/o Late Shri Bala Sahab Dani Aged About 55 Years R/o Danibada, Budhapara, Tahsil And Distt.- Raipur (C.G.) 3.3 - (C) Anamika Dani D/o Late Shri Bala Sahab Dani Aged About 50 Years R/o Danibada, Budhapara, Tahsil And Distt.- Raipur (C.G.) 4. Shri Chandrakant Dani (Died), Through Lrs.- As Per Hon'ble Court Order Dated 14-10-2014. 4.1 - (A) Smt. Ratnaprabha W/o Late Chandrakant Dani Aged About 58 Years R/o Flat No. 4, Satrunjay Apartment Ambeygaon Road Katraj Area, Puna Maharastra. 4.2 - (B) Nilesh S/o Late Chandrakant Dani Aged About 32 Years R/o Flat No. 4 Satrunjay Apartment Ambeygaon Road Katraj Area, Puna Maharastra. 4.3- (C) Sweety D/o Late Chandrakant Dani Aged About 28 Years R/o Flat No. 4 Satrunjay Apartment Ambeygaon Road Katraj Area, Puna Maharastra. ... Respondent(s) For Appellant : Mr. Prafull N. Bharat, Sr. Advocate with Mr. Mayank Chandrakar, Advocate For Respondent(s) : Mr. Anurag Singh and Mr. Sandeep Patel, Advocates
Legal Reasoning
Hon’ble Justice Shri Narendra Kumar Vyas C A V Judgment 1. This first appeal under Section 96 CPC has been filed by appellant/ defendant No.1 assailing the judgment and decree dated 18.08.2006 passed by learned 10th Additional District Judge, (FTC) Raipur in Civil Suit No. 102-A of 2004, by which the trial Court has allowed the suit filed by the plaintiffs and declared the sale deed dated 16.02.2004 executed in favour of defendant No.1 to be null and void. 2. For the sake of convenience, the parties shall be referred to in terms of their description in Civil Suit No. 102-A/2004. 3. Brief facts as mentioned in the plaint are that plaintiff has filed a civil suit 3 before the learned trial Court mainly contending that; (a) That from genealogy of the family as mentioned in the plaint, it is quite vivid, that Gangaji was the forefather of the plaintiff and he has two sons namely Ramchandra and Chhatroba. Ramchandra has one son Ganpatrao who has one son Baburao and Baburaon has one son Ganpartro Dani. Ganpartrao Dani has two sons namely Balasahab/defendant No.2 and Chandrakant/defendant No.3. Similarly, Chhatroba has three sons Narayan Rao, Keshav Rao and Nathoba. Narayan Rao has one son Viththalrao. Viththalrao has three sons Madhukar Rao/plaintiff No.2, Santosh Rao/plaintiff No.1 and Pratap Rao. Similarly, Keshav Rao has two sons, Jagannath Rao and Gopal Rao. (b) It is contended that between Baburao, Narayan Rao and Keshavrao a partition of properties situated at Budhapara ward Raipur has taken place on 29.10.1895 which is known as Dani Bada. The map of the said property has also been annexed with the suit. It is also the case of the plaintiff that after partition the legal heirs of Ganpatrao Dani, Viththalrao Dani and Jagannathrao Dani were in possession of the suit property described in the plaint. The legal heirs of these persons are in possession of their respective shares in Dani Bada. (c) It is also contended that there was common courtyard in the North side of the compound which is connected with Danibada from main road. The courtyard was used by all the persons residing in the compound as it was excluded from partition deed of 1895 and every family member is entitled to use it. However, none of shareholders or their successors have any right to 4 transfer the above mentioned courtyard or its share to anyone else, therefore, none of its successor have any right or interest in the said courtyard or they have sole ownership over the courtyard, as such it could not have been sold out at the instance of any party, therefore, the plaintiff had acquired customary right over the said courtyard. (d) It is contended that late Ganpatrao Dani had partitioned his shares in between himself and his three sons through a registered partition deed dated 20.05.1971 and the shareholders were enjoying their possession. It was contended that the courtyard was never partitioned among the family members but the defendant No. 2 and 3 have sold some of the lands of the courtyard to the defendant No.1 through registered sale deed dated 16.02.2004 measuring 8x10x16 feet for sale consideration of Rs. 50,000/-. The aforesaid land was described as A,B,C, and D in the map enclosed with the plaint. (e) It is contended that the defendant No. 2 and 3 have no legal right or authority over the aforesaid portion of the courtyard and they have sold same without consent of the other family members, as such the sale deed was executed without any authority or title over the joint courtyard which is being possessed by all the family members. The said sale done by them is unauthorized which is not permissible in the eye of law and prayed for declaration that said registered sale deed be declared as null and void and is not binding on the plaintiff. It has also been pleaded that defendant No.1 started construction of a house on the disputed land unauthorizedly, the plaintiff went to stop construction work but he did not stop construction work which has necessitated the plaintiff to file a suit for declaring the sale 5 deed 16.11.2004 executed by defendant No. 2 and 3 in favour of defendant No.1 to be null and void. 4. Defendant No. 1 has filed his written statement denying the averments made in the plaint contending that; (a) That whatever allegation made in the plaint which has been specifically admitted by the defendant No.1 is deemed to be admitted and the averments which have not been specifically admitted are deemed to be denied and the burden lies upon the plaintiff to prove the same by cogent evidence. The defendant No.1 has also denied the genealogy of family tree in view of no specific knowledge about the family tree and the burden lies upon the plaintiff to prove genealogy. (b) it has been contended that the plaintiff has annexed the map with the plaint which is not correct and it does not reflect the actual position as on 29.10.1895. It has also been contended that regarding condition of partition it is within the knowledge of the plaintiff, therefore, burden lies upon him to prove the same. It is denied that heirs of late Baburao Dani, Narayanrao Dani and Keshavrao Dani are in possession of the land after acquiring ownership rights in their respective shares and defendant No.1 has purchased the property from defendant No. 2 and 3 through registered sale deed by giving sale consideration of Rs. 50,000/- and has constructed a house thereon, as such the plaintiff has no customary right over the suit land. It is also pleaded that the plaintiff has wrongly mentioned that the courtyard was joint family property and they have not raised any objection at the time of purchase of property or the plaintiff has not restrained the defendant No.1 from construction over the said land and the construction 6 work has already been completed by this defendant No.1 prior to filing of the suit. The plaintiffs have made a malicious attempt to show themselves as joint owners of courtyard, which is contrary to reality. (c) It is contended by defendant No.1 that he is a bonafide purchaser, the disputed land was acquired by the defendant No.1 through a registered sale deed by paying full consideration and the other family members were not impleaded as party to the case, therefore, the suit is not maintainable in view of non-joinder of necessary party and would pray for dismissal of the suit. 5. Defendants No. 2 and 3 have filed their written statement supporting the case of defendant No.1. It has also been contended that the defendant No.2 and 3 have sold their share to defendant No.1 and neither the plaintiff nor their forefather have right over the suit land and has prayed for dismissal of the suit. 6. On the pleading of the parties, learned trial court has framed as many as nine issues which are as under:- 1- D;k nkuh ckM+k fLFkr oknxzLr vkaxu esa oknh x.k o izfr0Ø0 2&3 ds lHkh iwoZtksa dk lkewfgd LoRo o vkf/kiR; gS\ 2- D;k mijksDr oknxzLr vkaxu esa oknh o vU; fgLlsnkjksa dk :f<+tfur vf/kdkj mi;ksx&miHkksx gsrq gS\ 3- D;k izfr0Ø0 2&3 dks] oknxzLr vkaxu dk fgLlk dks] foØ; dk vf/kdkj ugha Fkk\ 4- D;k izfr0Ø0 2&3 }kjk] izfrØ0 1 ds i{k eas fu"ikfnr foØ; i= fnu0 16&2&04 'kwU; o voS/k gS\ss 5- D;k okn Hkwfe ij izfr0Ø0 1 }kjk fd;s tk jgs fuekZ.k dks rksM+dj rFkk eyek gVkdj oknh x.k mDr Hkwfe dk fjDr vkf/kiR; ikus ds vf/kdkjh gS\ 7 6- D;k oknh x.k okn Hkwfe ij izfroknh x.k ds fo:) mls vU; dks varj.k djus] ml ij fdlh izdkj dk fuekZ.k djus] mi;ksx djus] vojks/k ;k ck/kk mRiUu djus ls jksdus gsrq LFkk;h fu"ks/kkKk izkIr djus ds vf/kdkjh gS\ 7- D;k oknh dk okn esa i{kdkjksa ds vla;kstu dk nks"k gS] vr% okn fujLruh; gS\ 8- D;k oknh x.k okn dk mfpr ewY;kadu dj U;k; 'kqYd vnk dh gS\ 9- lgk;rk ,oa okn O;;\ 7. The plaintiff to substantiate his case has examined Madhukar Rao Dani (PW-1), Dhanwant Rao (PW-2), Govind Rao (PW-3), Vijay Kumar Banthiya (PW-4) and exhibited documents namely partition deed (Ex.P-1), statement of M.S. Kuraishi (Ex.P-2), copy of deposition Gopal Rao Mane (Ex.P-1-c), sale deed (Ex.P-3), copy of deposition of Ganpat Rao (Ex.P-4), partition deed (Ex.P-5) and sale deed (Ex.P-6). 8. Defendant No. 1 examined himself as (DW-1) and Balashaheb Dani (DW-2). Defendant No. 3 did not examine any witness. The defendants have not exhibited any documents in their support but admitted sale deed (Ex.P-1). 9. Madhukar Rao Dani (PW-1) in his examination in chief has stated that Dani Bada is a very big Bada in which everyone has his shares. Dani Bada was partitioned in the year 1895 among its shareholders namely Late Baburao Dani, Keshav Rao Dani and Narayan Rao Dani. Legal heirs of late Narayana Rao Dani Madhukar Rao Dani and Santosh Dani resides in the share of Narayan Rao Dani. Defendant No. 2 and 3 are the legal heirs of Balasaheb Dani and Chandrakant Dani. He has also stated that along with the plaint, he has annexed the map wherein it has been mentioned that “in the north side there is road. In the south and east side there is a small road and towards west side a small passage is in existence. He has stated that 8 in the west side one bada was there known as Halwa Bada. This witness has further stated that from the north side for entrance in the Dani Bada, there was an arch before entrance in the Dani Bada and a common courtyard was there. He has also stated that they were using the joint passage for movement and Santosh Rao Dani, Madhukar Dani were also using the same which is being marked in the map. He has also stated that common courtyard was in possession of all the three shareholder and title holders. He has also stated that the common courtyard is used for going to upper side and for using common courtyard, no one was prohibited in the partition held in the year 1895. He has further stated that one part of the said common courtyard was sold by defendant No.2 and 3 to defendant No.1 which they have no right to sell. In the cross-examination, this witness has stated that in the map attached with the plaint and the map prepared at the time of partition in the year 1895 there is difference. He has also stated that whatever statement was given by him regarding courtyard in the north direction, there is no description in the map pertaining to partition of 1895. But this witness has stated that it has been shown in the map, which means this place is being used by all the shareholders. 10. Dhanwant Rao (PW-2) has reiterated the stand taken by Madhukar Rao Dani (PW-1) and has stated that defendants No. 2 and 3 have sold one part of common courtyard to defendant No.1. He has also stated that all the three shareholders have one common courtyard and after common courtyard there was passage for going to house of Madhukar Rao Dani and Santosh Rao Dani. This witness was cross-examined by the defendants in 9 the cross-examination, he has stated that according to use of that courtyard, he treats it as common courtyard. 11. Govind Rao (PW-3) has stated that it is common courtyard, house was constructed causing prohibition for utilizing the common courtyard. This witness was cross-examined by the defendants who has stated that he has not seen deed of partition. 12. Vijay Kumar Banthiya (PW-4) has stated that about 25 years, he lived in Dani Bada and has purchased a house from Dhananjay Dani which is known as Gol Bangala. He has further stated that there is open space of 1000 Sq. feet where defendant No.1 has done construction work in the vacant space. This witness has further stated that he has made a complaint before Corporation regarding construction as the construction causing difficulty in the movement. 13. Kaushik Kumar Katta (DW-1) in his examination-in-chief by way of an affidavit as provided under Order 18 Rule 4 CPC has stated that he has purchased the land through registered sale deed 16.02.2004 situated at Dani Bada from defendant No.2 and 3, in which he has constructed the house. He has further stated that before purchase of property, defendants No.2 and 3 gave photocopy of partition deed dated 29.10.1895. He has further stated that in the map of 1895, a door was shown in the north side and after the door, an open space adjoining to house of Kishore Bhai Katta and Shri Soni was purchased by him through registered sale deed. After believing on the partition deed dated 29.10.1895 and the attached map, he has purchased the property, as such he is a bonafide purchaser. This witness was cross-examined by the plaintiff wherein he has admitted that in 10 the map Ex.P-06 common courtyard was written. He has also admitted that in the Ex.P-06 map Balashaheb Dani and Chandrakant Dani’s common courtyard has not been mentioned. He has voluntarily stated that it may be written in the sale deed and when the sale deed was shown to the plaintiff, he has stated that not written. He has also admitted that in the sale deed (Ex.P-03) there is no mentioning of partition of year 1895. 14. Balashaheb Dani (DW-2) in his examination-in-chief has stated that in the north direction of Dani Bada the way is used by their family only and no other person is utilizing the same. This witness was cross examined by the plaintiff wherein he has admitted that he is not aware about the partition held between the forefather of Dani Family. He has also stated that he is not aware about the use of north and east direction for movement has been provided in the partition of year 1895 to all the shareholders. This witness has denied all the suggestions made to him. 15. Learned trial Court after appreciating the oral and documentary evidence found that the plaintiffs have proved their case and allowed the suit holding that the courtyard was the joint family property which was being enjoyed by all the family members. The defendant No. 2 and 3 were having no right and authority to execute the registered sale deed dated 16.02.2004 and directed the defendant No.1 to give vacant possession of the disputed property to the plaintiffs after removing super construction made over it within one month from the date of judgment otherwise the plaintiffs are entitled to get the vacated possession in accordance with the law. Being aggrieved by the judgment and decree passed by the trial court on 11 29.08.2019, the defendants have preferred First Appeal under Section 96 CPC before this Court. 16. Learned Sr. counsel for the appellants/defendant No.1 would submit that the finding recorded by the trial Court is contrary to the facts, law and record. He would further submit that the Court below failed to consider that the defendant No.1 is a bonafide purchaser who purchased the property on the basis of registered partition deed dated 29.10.1895, therefore, he cannot be held liable for any mistake or fraud committed by defendant No. 2 and 3. Learned Sr. counsel for the appellant would further submit that map annexed with the plaint also does not bear any number of survey, description of property of neighbours or the road or lane and as such there is complete non compliance of Rule 3 of Order 7 CPC and the defendant No.2 has filed the correct map but the Court has not considered the same. 17. Learned Sr. counsel for the appellant would further submit that PW-1 Madhukarrao in his statement admits that he does not know the length and breadth of the common courtyard and description of common courtyard is not given in the map of partition made in the year 1895 and all the shareholders had sold their shares of the property. He would further submit that the plaintiff has no where pleaded in the plaint that he had acquired the easementary right over the common courtyard and his right of easement has continued for a minimum period of 20 years. In paragraph 14 and 15 he had admitted that he had sold his share of property vide sale deed dated 09.04.1987 to Smt. Parakh Bai, as such he has no right or interest to institute the present suit, if any right was in favour of plaintiff No.2 was existed it has came to an end. 18. Learned Sr. counsel for the appellant would submit that Santoshrao Dani 12 had not entered into the witness box, as such adverse inference ought to have been raised against him. He would further submit that plaintiff No.2 has admitted the fact that after partition of 1895 he got a way on the south side of the house which was specifically meant for plaintiffs alone. To substantiate his submission he has relied upon the judgments of Hon’ble Supreme Court in the cases of Surendra Kumar Gupta and others v. Narayan Ram and others reported in 2011(1) CGLRW 206, Marya Pushpam vs. Telvi Curusumary and Ors, reported in AIR 2024 SC 714, Ishwar Bhai C. Patel @ Bachhu Bhai Patel vs. Harihar Behara and Anr. Reported in 1999(3) SCC 457, Iqbal Basith and Ors vs. N. Subbalaxmi and Ors reproted in 2021(2) SCC 718, Manisha Mahendra Gala vs. Shalini Bhagwan Aftaramani reported in 2024(6) SCC 130, Salekchand vs. Satya Gupta reported in 2008(13) SCC 119, Pratibha Singh and Anr. vs. Shanti Devi Prasad & Anr reported in 2003(2) SCC 330. 19. On the other hand, learned counsel for the respondents would submit that the finding recorded by the trial Court is legal, just and proper which does not call for interference by this Court. He would further submit the partition deeds were executed on 29.10.1895 and on 20.05.1971, hence common courtyard was fallen in the share of the plaintiff which does not find any support, as such defendant No.1 failed to establish that he is a bonafide purchaser. He would further submit that in the finding recorded by the trial Court or in the impugned judgment there is no perversity or illegality which warrants interference by this Court and would pray for dismissal of the appeal. To substantiate his submission he has relied upon the judgments 13 of Hon’ble Supreme Court in the cases of Umadevi Nambiar vs. Thamarasseri Roman Catholic Diocese reported in 2022(7) SCC 90, Parbhawati Devi and Ors vs. Mahendra Narain Singh and Ors reported in AIR 1981 Part 133, Beer Singh Vs. Pratap Singh and Ors reported 2022 SCC Online Chh 2030, Minati Bhadra and Ors vs. Dilip Kr. Bhadra and Ors reported 2023 SCC Online Cal 6138 and Manjit Singh and Another vs.Darshana Devi and Ors reported 2024 SCC Online SC 3431. 20. I have heard learned counsel for the parties and perused the record of the Court below with utmost satisfaction. 21. From the above submissions made by the parties, the points emerged for determination by this Court are as under:- (1) Whether the plaintiff is able to establish the easementry right in the suit property? (2) Whether the suit is liable to be dismissed on the count of no description of actual boundary or measurement of property in the suit? (3) Whether the defendant No. 1 is a bonafide purchaser of the suit property or not? (4) Whether the finding recorded by the trial Court is legal, justified, does not suffer from perversity or illegality which warrants interference by this Court? Discussion and finding on point No.1. 22. To appreciate these points, it is expedient for this court to examine the provisions of Sections 4, 13 and 21 of the Indian Easements Act 1882. Section 4 of the Act defines the Easement which reads as under:- Section 4 of the Act:- An easement is right which the owner or occupier of certain land possesses, as such, for the beneficial 14 enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done on the said land, or in respect of certain other land not his own. Section 13 of the Act :- Easements of necessity and quasi easements.—Where one person transfers or bequeaths immovable property to another,— (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; (c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or (d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall unless a different intention is expressed or necessarily implied, be entitled to such easement. Where a partition is made of the joint property of several persons,— (c) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or (d) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. When a partition is made of the joint property of several persons, 15 (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or (f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. Section 21 of the Act;- Bar to use unconnected with enjoyment:- An easement must not be used of any purpose not connected with the enjoyment of the dominant heritage." 23. From the above stated provisions of Easements Act 1882, it is quite vivid, that to get Easementary Right the plaintiff should establish that he has right to way, to light, to air, to draw water, support, right to have overhanging eaves, right of drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, i.e. easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right should have pleaded and proved the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to his easementary right by adducing cogent and sufficient material on record. It is also well settled legal position of law that the plaintiff to obtain easement by prescription has to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a 16 period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. Similarly, for claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed. It is also quite vivid that from the provisions of Act of 1882 for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. 24. In the above back ground of principles required for plaintiff to obtain decree of Easement Right, now the facts and evidence adduced before the trial have to be considered to examine whether the plaintiff has rightly been granted the decree of easementary right by the trial Court or not. 25. Madhukar Rao Dani (PW-1) in his examination-in-chief has stated that one part of the said common courtyard was sold by defendant No.2 and 3 to defendant No.1 which they have no right to sell. He has also stated that from north side for entering into Dani bada to all the shareholders of Bada were using it. He has also stated that one arch was constructed on the north side of the Bada near the road and from that only the bulckcart or material procured from the agricultural field of the family, all the shareholders of legal heirs of Ramchadra Rao, Chatroba which consists of Ganpatrao, Baburao, Narayan, Keshave, Nathoba and presently their legal 17 heirs. The witness has stated that Dani bada is a very big “Bada” and a partition has taken place in the year 1885 between Baburao, Narayan Rao and Keshave Rao. He has also stated that from entering into north side, one arch is there where common courtyard is situated. From that place for going to south there is way from joint courtyard and in the midway house of Santoshrao Dani and Madhukarrao were there. He has also stated in the common courtyard, possession of all the shareholder were there and as per partition held on 1895, no one objected for utilizing common courtyard as way. The said witness was cross-examined, in paragraph-15 he has stated that after sell of that of this courtyard, no part of Danibada is available to use as courtyard. The witness has admitted that the map attached with the plaint and in the partition of 1895 there is difference. He has also admitted that as per the map attached with partition 1895 in the north direction, a common courtyard is mentioned, its reference is not available in the map but it has been stated that the same has been mentioned which means all the shareholder were utilizing the said path for their use. This witness has further stated that whatever shares given to him on partition, he has sold. (PW-2) Ganpartro Dani has supported the case of the plaintiff and no cross-examination was done by the defendants on the point that common courtyard was utilized by all the persons as path. 26. Learned Sr. counsel for the appellant has contended that the plaintiff is claiming customary right but has not been able to establish that an easement may be acquired by virtue of local custom as per Section 18 of the Act. This submission is incorrect submission as the plaintiff is claiming customary right as defined in Section 2(b) of Indian Easement Act, 1882. 18 Section 2(b) of the Act which is provided in Section 2 of the Act which is saving clause. Section 2(b) reads as under:- Section 2(b)- Any customary or other right (not being a license) in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property. 27. Learned Sr. counsel for the appellant would further submit that the plaintiff No.1 whose alleged right is likely to be adversely effected should have appeared before the trial Court for recording of evidence and on his place the power of attorney holder Madhukarrao Dani has been examined before the trial Court, as such adverse inference should have been drawn against him for not examining the plaintiff whose easementary right alleged to have been adversely effected. He would further submit that Madhukarrao Dani in the cross-examination has admitted that he had sold his share of property vide registered sale deed dated 09.04.1987 to Smt. Parakh Bai and after that he has no share in the house namely Dani Bada and the suit has been filed on 12.03.2004 at the time of institution, Madhukarrao Dani who has no right cannot claim easement in view of provisions of Section 15 of the Easement Act, therefore, the trial court should have dismissed the suit by drawing adverse inference against the plaintiff. 28. This submission deserves to be rejected by this Court though the witness in paragraph-14, has stated that he has sold his share through registered sale deed on 09.04.1987 but in paragraph-15, he has stated that after 1987 he is living with his brother plaintiff No.1/Santoshrao Dani in his residence and has further clarified that after partition, he and his brother are living jointly and even before partition, they were living jointly, as such his easementary right is adversely effected. Even, to rebut this contention, no 19 material was brought on record by the defendants, therefore, learned trial Court has rightly not drawn adverse inference against the plaintiff as the easemantary right of plaintiff No. 2 is also adversely effected. 29. Learned trial Court while appreciating the evidence has recorded its finding in paragraph-20 of the judgment that as per the partition (Ex.P-5), between the legal heirs of Ganpartrao and defendant No. 2 and 3, no title with regard to courtyard has been given to defendants No. 2 and 3. The trial Court considering the evidence and also partition (Ex.P-3) and partition deed (Ex.P-5) has recorded its finding that at the time forefather of plaintiff and defendant No. 2 and 3, common courtyard was utilized as way. Accordingly, it has decided issue No.1 and 3 in favour of the plaintiff. This finding is on appreciation of evidence, material placed on record and examination of (Ex.P-1 and Ex.P-5) which cannot be found fault. The plaintiff was able to plead and prove that he has easementary right to use common courtyard as way which has not been rebutted by the defendant No.1 by adducing that other common pathway is available for the plaintiff for denial relief of easementary right. 30. Learned trial Court after appreciating the evidence, material on record has recorded its finding that plaintiff is able to establish all the ingredients required to prove easementary right by easement of necessity as per Sections 13 and Easementary right by acquisition by prescription as per Section 15 of the Act. The trial Court has also recorded its finding that the plaintiff is also able to plead and prove that due to transfer of dominant heritage, the easement right will not transfer or devolution in favour of defendant No. 2 and 3 and the easementry right claimed over courtyard to 20 use as way was existing prior to filing of the suit since the partition has taken place in the family in the year 1895 by the forefather of plaintiff and defendant No. 2 and 3. 31. Hon’ble Supreme Court in the case of Manisha Mahendra Gala and others vs. Shalini Bhagwan Avatramani and Others reported 2024 (6) SCC 130 has considered the necessity of pleading and evidence for acquiring any easementary right by prescription which is very much available in the present fact of the case. Hon’ble Supreme Court in paragraph-22 has held as under:- 22. Section 15 of the Act categorically provides that for acquiring any easementary right by prescription, the said right must have been peaceably enjoyed in respect of the servient heritage without any interruption for over 20 years. In the plaint, neither the original plaintiff Joki Woler Ruzer nor the Gala’s have specifically claimed that they or their predecessor-in- interest were enjoying easementary right of use of the said rasta for over 20 years. They simply alleged that they have been using and managing the same since “last many years”. The use of the term “last many years” is not sufficient to mean that they have been enjoying the same for the last 20 years. Last many years would indicate use of the said rasta for more than a year prior to the suit or for some years but certainly would not mean a period of 20 or more years. Therefore, their pleadings fall short of meeting out the legal requirement of acquiring easementary right through prescription. 32. Submission of the appellant that if alternate way to excess dominant heritage is available, then decree of easementary right cannot be granted. This submission is liable to be rejected in the light of law laid down by the Hon’ble Supreme Court in the case Manisha Mahendra Gala (supra) as the appellant is unable to plead and prove that there is an alternate way to excess dominant heritage to get benefit of judgment of Hon’ble Supreme Court, as such judgment is distinguishable on the facts of the present case. Thus from the above stated discussion, it is quite vivid, that the plaintiffs 21 are able to prove easementary right in the suit property. Accordingly issue No. 1 framed by this Court is answered in favour of the plaintiff and against the defendant No. 1. Discussion and finding on point No.2. 33. The submission of learned Sr. counsel for the appellant is that there is no description of actual boundary or measurement of suit property in the suit which is in violation of Order 7 Rule 3 CPC, as such the suit is not maintainable. 34. He would further submit that the said provisions provide that when the subject matter of the suit is in immovable property then description of the property sufficient to identify by boundaries or number in settlement of survey should be given as per provisions of Order 7 Rule 3 CPC. The plaintiff has not complied with such provisions, therefore, learned trial Court has committed illegality in decreeing the suit against the plaintiff and would pray for allowing the appeal on this court alone. 35. The appellant to substantiate his submission has referred to judgment of Hon’ble Supreme Court in the case of Mary Pushpam (supra) wherein Hon’ble Supreme Court has held as under:- 23. We are unable to appreciate the said argument of the respondents. Suit for possession has to describe the property in question with accuracy and all details of measurement and boundaries. This was completely lacking. A suit for possession with respect to such a property would be liable to be dismissed on the ground of its identifiability. Further, it may be noted that if the construction by the defendant were not made over 8 cents of purchased land, then the plaintiff therein would not have a claim to possession of the same. The argument thus has to be rejected not only on facts but also on legal grounds as discussed above. 36. To appreciate this point, this Court has gone through the plaint wherein it has been specifically mentioned that a common courtyard has been 22 situated in the north side of the property of the plaintiff and defendant No. 2 and 3 and the map was also attached with the suit wherein description has also been given by marking as A, B, C and D and has been mentioned through red ink. The defendant No. 1 in his written statement has not taken any plea nor any evidence with regard to no identification of suit property has been adduced which may infringe the right of the plaintiff. On the contrary, in the sale deed (Ex.P-1), the description of the property has been given and the sale deed is subject to challenge before the trial Court, therefore, identification of the suit property is well known to the plaintiff and the purchaser /defendant No.1 and seller defendant No. 2 and 3. Thus submission made by learned Sr. counsel is liable to be rejected in this regard. 37. This judgment of Hon’ble Supreme Court in the case of Mary Pushpam (supra) is distinguishable on the facts of the present case as the sale deed was challenged by the plaintiff wherein description of the property was very much available. Learned trial Court has also declared the sale deed dated 16.02.2004 to be null and void. Accordingly, it has passed the order for removing the illegal construction carried out on the said suit property. Thus, the point No. 2 framed by this Court is answered against the appellant and in favour of the respondent No.1/plaintiff. Discussion and finding on point No.3. 38. Learned Sr. counsel for the appellant would submit that defendant No. 1 is a bonafide purchaser of the suit property, therefore, his interest should be protected and on this count alone judgment and decree is liable to be set aside. 23 39. Submission made by learned Sr. counsel for the appellant was vehemently objected by learned counsel for the respondent No.1/plaintiff and would submit that appellant has not adduced any evidence with regard to enquiry made by him before purchase of the suit property to claim protection of bonafide purchase. 40. From the evidence of Kaushin Kumar Katta (DW-1), it is quite vivid, that in paragraph-4 of his evidence, he has stated that he has seen map of partition taken place on 29.10.1895 and thereafter he has purchased the suit property. In the cross-examination, he has admitted that he has seen the Will dated 20.05.1971 but the same has not been produced before the trial Court. He has also stated that whatever was written in the Will is true and correct. The trial Court has considered partition deed (Ex.P-5) executed between Ganpartro Dani and defendant No. 2 and 3 as well as mother of defendant No.2 and 3 and has recorded its finding that in the partition deed, there is no description about courtyard. Even the defendant No.1 has not produced any document whether he has conducted an enquiry or done the paper publication before purchase of suit property to claim protection as bonafide purchaser. The defendant has also not stated in his evidence that he was residing far away from the suit property, as such also no information with regard to right of defendant No. 2 and 3 to sell the suit property can be ascertained by conducting some factual enquiry. In absence of any such material, it cannot be said that the plaintiff is bonafide purchase. The Hon’ble Supreme Court in the case of Manjit Singh and Anr. vs. Darshana devi and Ors reported 2021 INSC 895 has held as under:- 24 12. Section 19 of the Specific Relief Act upon which strong reliance is sought to be placed has been interpreted by this Court in “R.K. Mohammed Ubaidullah v. Hajee C. Abdul Wahab 2000 (6) SCC 402 wherein this Court held as follows:- “14. Section 19 of the Specific Relief Act, 1963, to the extent it is relevant, reads: “19. Relief against parties and persons claiming under them by subsequent title. – Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against- (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; (c)-(e) … … … As can be seen from Sections 19(a) and (b) extracted above specific performance of a contract can be enforced against (a) either party thereto; and (b) any person claiming under him by a title arising subsequent to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 19(b) protects the bona-fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of exception to the general rule. Hence, the onus of proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case. Section 52 of the Penal Code emphasises due care and attention in relation to good faith. In the General Clauses Act emphasis is laid on honesty. 15. Notice is defined in Section 3 of the Transfer of Property Act. It may be actual where the party has actual knowledge of the fact or constructive. “A person is said not have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation II of said Section 3 reads: “Explanation II-Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title if any, of any person who is for the time being in actual possession thereof.” Section 3 was amended by the Amendment Act of 1929 in relation to the definition of “notice”. The definition has been amended and supplemented by three explanations, which settle the law in several matters of great importance. For the immediate purpose Explanation II is relevant. It states that actual possession is notice of the title of the person in possession. Prior to the amendment there had been some uncertainty because of divergent views expressed by various High Courts in relation to 25 the actual possession as notice of title. A person may enter the property in one capacity and having a kind of interest. But subsequently while continuing in possession of the property his capacity or interest may change. A person entering the property as Tenant later may become usufructuary mortgagee or may be agreement holder to purchase the same property or may be some other interest is created in his favour subsequently. Hence, with reference to subsequent purchaser it is essential that he should make an inquiry as to the title or interest of the person in actual possession as on the date when the sale transaction was made in his favour. The actual possession of a person itself is deemed or constructive notice of the title if any, of a person who is for the time being in actual possession thereof. A subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property.” 12. The aforesaid decision of this Court makes it clear that Section 19 (b) of the Act, 1963 is an exception from the general rule and the onus is on the subsequent purchaser to prove that he purchased the property in good faith and also bona fide purchaser for value. 13. Section 3(2) of the General Clauses Act defines ‘good faith’ as follows:— “3(22). A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not.” Section 2(11) of the Bhartiya Nyaya Sanhita, 2023 defines “good faith”, as follows:— “2(11). “Good faith- Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention;” 15. The above said definitions and the meaning of the term ‘good faith” indicate that in order to come to a conclusion that an act was done in good faith it must have been done with due care and attention and there should not be any negligence or dishonesty. Each aspect is a complement to the other and not an exclusion of the other. The definition of the Penal Code, 1860 emphasises due care and attention whereas General Clauses Act emphasises honesty. Thus, the point No. 3 framed by this Court is answered against the appellant and in favour of the respondent No.1/plaintiff. Discussion and finding on point No.4. 41. It is pertinent to mention here that the plaintiff has filed the suit on 12.03.2004 declaring the sale deed dated 16.02.2004 to be null and void 26 and also filed application under Order 39 Rule 1 and 2 CPC for grant of injunction which was allowed on 06.10.2004 by the trial Court by ordering for stoppage of construction work and restraining the defendant No.1 to carry out construction in future also, as such after restraining order in disobedience of injunction order the defendant No.1 has carried out construction then he has to face consequence of it, therefore, learned trial Court has not committed any illegality in ordering for demolition of construction carried out by defendant No.1. Learned trial Court after appreciating the evidence, material on record has passed a well reasoned judgment and decree which cannot held to suffer from perversity, illegality warranting interference by this Court. Accordingly, point No. 4 is answered in favour of the plaintiff and against the defendant No.2 and 3. 42. Consequently, the appeal is liable to be dismissed and it is dismissed. 43. Interim order passed by this Court on 21.09.2006 stands vacated. 44. Decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Santosh