BENCH AT JAIPUR v. Syed Sabir Ali S/o Syed Gulam Ali, Since Deceased

Judgment

1. Syed Sabir Ali S/o Syed Gulam Ali, Since Deceased Through Legal Heirs.

2. Smt. Nasima Wd/o Syed Sabir Ali., R/o House No. 128/20 Old 153/33 Old New, Khadim Mohalla, Pannigram Chowk, Ajmer.

3. Syed Shakir Ali S/o Syed Sabir Ali., R/o House No. 128/20 Old 153/33 Old New, Khadim Mohalla, Pannigram Chowk, Ajmer.

4. Syed Shahir Ali S/o Syed Sabir Ali., R/o House No. 128/20 Old 153/33 Old New, Khadim Mohalla, Pannigram Chowk, Ajmer.

Smt. Guddu D/o Syed Sabir Ali., R/o House No. 128/20 Old 153/33 Old New, Khadim Mohalla, Pannigram Chowk, Ajmer.

6. Smt Naslim D/o Syed Sabir Ali., R/o House No. 128/20 Old 153/33 Old New, Khadim Mohalla, Pannigram Chowk, Ajmer.

7. Syed Maksood Ali S/o Gulam Ali, R/o House No. 153/33, Khadim Mohalla, Pannigram Chowk, Ajmer.

8. Syed Mansoor Ali S/o Gulam Ali., R/o House No. 153/33, Khadim Mohalla, Pannigram Chowk, Ajmer. ----Respondents/Defendants For Appellant(s) : Mr. Reashm Bhargava, Adv. For Respondent(s) : None HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA 05/08/2025 Order [2025:RJ-JP:29948] (2 of 5) [CSA-661/2017] The civil second appeal has been filed by the appellant- plaintiff (for short ‘the plaintiff’) against the judgment and decree dated 16.08.2017 passed by the Additional District Judge No. 3, Ajmer (for short ‘the first appellate Court’) in civil appeal No. 155/2011, whereby the first appellate Court while allowing the appeal filed by the defendants, set aside the judgment and decree dated 25.10.2007 passed by the Civil Judge (J.D.), and Judicial Magistrate, Ajmer City, West in civil suit No. 66/2003 by which the plaintiff’s suit was decreed. Brief facts of the case are that the plaintiff filed a civil suit under Order VII Rule 1 CPC against the respondents-defendants (for short 'the defendants') mentioning therein that in the northern side of the plaintiff's house, defendants got constructed a 8 ft. height balcony above lane. They had also constructed latrine in the balcony. So, waste water is discharged from the lane. The said construction was done without obtaining the permission from the Nagar Parishad. On account of said construction, plaintiff does not got the fresh air and light and his easementary rights have been infringed. Defendants filed the written statement and denied the averments made in the plaint and stated plaintiff was not presently the owner of the property. Defendants had not raise any new construction. The said construction is about 15-16 years old. Latrine and bathroom were constructed long back. So, suit filed by the plaintiff be dismissed. Plaintiff filed rejoinder and denied the averment that construction was old. [2025:RJ-JP:29948] (3 of 5) [CSA-661/2017] On the basis of pleadings of parties, the trial Court framed the following issues:- “1- vk;k izfroknhx.k us Lo;a ds edku dh nwljh eafty ij voS/k :i ls ,d ckyduh o ysfVªu cuk yh gS rFkk rhljh eafty ij ckyduh cuk yh] ftls rqM+okus gsrq oknh vkns'kkRed fu"ks/kkKk tkjh djokus dk vf/kdkjh gS\ 2- vk;k oknh izfroknhx.k dks xyh dh vksj Hkfo"; esa dksbZ fuekZ.k ugha djokus ckcr~ LFkkbZ fu"ks/kkKk ls ikcUn djokus dk vf/kdkjh gS\ 3- vk;k oknh dks dksbZ okn dkj.k mRiUu ugha gqvk gS\ 4- vk;k oknh dks vdsys okn ykus dk vf/kdkj ugha gSA vr% [kkfjt gksus ;ksX; gS\ 5- vuqrks"k\ ” To prove his case, plaintiff go examined as PW-1-Syed Parkan Ali, PW-2-Sufiyan Ali and PW-3-Syed Mohammed Irfan Ali. The defendants also got examined DW-1- Syed Mansoor Ali and DW-2-Sabir Ali. After hearing the parties, the trial Court vide judgment and decree dated 25.10.2007, decreed the suit filed by the plaintiff and directed the defendants to demolish the balcony which was constructed on the public lane and restrained defendants to raise any construction on the public lane. The defendants challenged the said judgment and decree dated 25.10.2007 passed by the trial Court and the first appellate Court vide judgment and decree dated 16.08.2017 allowed the appeal filed by the defendants and set aside the judgment and decree dated 25.10.2007 passed by the trial court. [2025:RJ-JP:29948] (4 of 5) [CSA-661/2017] Learned counsel for the plaintiff submits that the trial Court has committed an error in allowing the appeal filed by the defendants and setting aside the judgment and decree dated

25.10.2007 passed by the trial Court. The first appellate Court had committed an error in giving the finding that plaintiff had alternate relief to initiate proceedings under the Municipality Act, 1959. Learned counsel for the plaintiff also submits that there was no plea of the defendants with regard to alternate relief. So, the judgment and decree dated 16.08.2017 passed by the first appellate Court be set aside and the present second appeal be admitted on the substantial questions of law, as framed in the memo of appeal. Learned counsel for the plaintiff has placed reliance upon the following judgments:-

1. Akbar Ali Vs. Vinod Khanna And Anr. reported in AIR 2004 SC

2. Gulabrao Balwantrao Shinde and Ors. Vs. Chhabubai Balwantrao Shinde and Ors. reported in (2003) 1 SCC 212.

3.Smt. Gangajal Kunwar & Ors. Vs. Sarju Pandey (Dead) by LRs and Ors. reported in AIR 2001 SC 2693.

4. Bondar Singh and Ors. Vs. Nihal Singh and Ors. reported in (2003) 4 SCC 161.

5. Sayed Muhammed Mashur Kunhi Koya Thangal Vs. Badagara Jumayath Palli Dharas Committee and Ors. reported in (2004) 7 SCC 708.

6. K. Devabalan & Ors. Vs. M. Vijayakumari & Ors. reported in (2020) 19 SCC 399. [2025:RJ-JP:29948] (5 of 5) [CSA-661/2017]

7. Jharkhand State Housing Board Vs. Anirudh Kumar Sahu and Ors. reported in (2018) 18 SCC 330.

8. Trishakti Electron and Industries Limited Vs. The Limited And Ors. reported in (2018) 18 SCC 792.

9. Rameshchandra Daulal Soni and Anr. Vs. Devichand Hiralal Gandi (Dead) Thr. Lrs. Smt. Gulabbai Devichand Gandhi and Ors. reported in 2020(1) ALT 22 (SC).

10. MD Safir Ali & Ors. Vs. MD Rahim Ali & Ors. reported in 2022(2) Gauhati Law Journal 164. I have considered the arguments advanced by counsel for the plaintiff and perused the impugned judgments. It is an admitted position that the plaintiff filed a suit against the defendants for construction raised by the defendants. For violation of the municipal law, plaintiff had not impleaded the Nagar Parishad as a party defendant. So, in my considered opinion, the first appellate Court rightly came to the conclusion that the plaintiff had an alternate relief to adjudicate the matter before Nagar Parishad. So, in my considered opinion, the first appellate Court had not committed any error in dismissing the appeal filed by the defendants. So, no ground is made out to admit the appeal on the substantial questions of law, as framed in the memo of appeal. Therefore, the present appeal being devoid of merit, is liable to be dismissed, which stands dismissed accordingly. Pending application(s), if any, stand(s) disposed of. Tahir/43 (NARENDRA SINGH DHADDHA),J