I'ff' . ^•.. ,./.,.J IN THE HIGH COIJRT OF JUBIGATURE AT BILASPUK . CiBiA'E'IISGA^I e.;__,wssiicl S.A.NO. 4-fe& /2006 APPELI.AWT : y&as. Singh, Aged about 50 years, PLAINTIEF ^S/o. KaabaiyalaT Verma,farmer, age ^ Xorda, TahsH Batoda Bazar, iXstrict KagiK(C-y^is^'b) • VERSUS . - ,., fiESPuNDCNfS: II Bln.il^iauRam, Agedabout 57years, ^ ^EFENDANTS -^ SA>. Ramlal Vei-ma, 2J^ GaneshItam, Aged a1)0ut 56years, ^^ " &'Q;HB'4eRa»¥^Effia, t;J..<'<^t;.<P^^^^ 3'j Khuman Singh, (since died) ^•^^••^^^"^ ^Kron@h Ius iBgairGprBSsstatiy.es:- ^"^^'ial'^ jl-A} BhagwafiBai,A^ged60years, >:^^^" r 'Wd/o.KtauBaiiSmgh 3-Bj Meghshyam, Aged 45_years, S/o. Khuman Sjagb S/Qf KhBBaa Sia^^age^t^ Arou.^iluslX's:- -¥ . ! ; y Dayatal Bai, (Con-ect is mte impugried deeree as la-nula Bai}, Aged 32 yeais, Wd/o. Madanlal Devendra, Aged 8 years, SA».NadanM 3]^ 3age^iwaT,Agedll3Ts, S/o.Madai^ RespJ^o^ & 3 iHmeJx;^ Deveadra & -::^3agBsWsa^^ &rough: fheir itatittat.guai'SiaK & mother Dayalai Bai, (Con'ect name is meirtioned in ffae! impugned decree as Unniia \ • ^.:,... ' _.._.___1 ____.-.---- U-j; *':; ,/fi~si Bal), A^ed 32 years, 'Wd/o. Madanial. •^DJ C'handar, A^ed a'bout 38 years, S/p. Khuman Smgh. . 3-^ SadfaanBai, Aged about 40 yrs, 3-F3 C3iandanaay,Ageld35Jears. D/o. Khumari Sin^i. t^ C?over(fiian,Agedabout 60 years, S/Q. Jelal Veraia. ip. Komal, Aged about 40jyears; S/o. Kala'am.Verma 1 6] Homar Sin^i, (Correct name is js Qie issm^ted-deerse as uomar Sm^), A^ged 52 jears, S/o. Rataniat ¥snBa(Sioce died)Thiough: liis legaiLR^s:- 6-A] Smt. Sufehawantin Bai, Aged about 41 years, Wd/o. Domar 6-B^Sewaram, (Correct rrame is mjentioned in tfae iiopttgtted decree asTikaram), $/o.I3omar Smgfa 6yC] Ctiandra S/o. Domar Smgh, R/o. At Present Pamgarh, < Tahsil3aajgir,T5istrict3anj^ir- GbsiB^-CB^ 6- / L.axman (Correct name is fflentioBed m &^ impagBed decree as Laxmi), S/o. Domar .Smgh. Kamta (Correct name is meBtMMied ia "tlie iisgugned decree as Smt. CjulabBai)I5/o. DofflarStBgb. - "^,.' y[ Bhawna @ Smt. Sarita Bai, D/o. Domar Smgh, At present K/o. Tamgarh, Tahsil Janjgir, District Janjgir-Champa (CG) 6-G] Sushua @ Smt. Sangeeta Bai P/o; Damaf, M Piesei^ fi/e; Paadan, yiear ViITage Pamgarli, Tafasu Janjgir, Bistrict Janjgir- Gliafflpa(G,-@;) Tj Gendlal, A^ed about 35 years, S./o. /^ LakhaBVerma, AB ahove except Resp.'No. 6-C, 6-F & 6-G'R/O. Kmaa, Village Korda, Tahsil Baloda Bazar, District - Kaipur(Clihattisgarh) ' Gram Panchayat, Korda, fhrougfa: its SapaBsh, So?4s, %bsil BalodaBazar;T3istrictRaipur(Cli}iattisgarli) SECOND APPEAL CNOER SECTION 100 OF CIVIL PROCEDURE CODE &l-v1 w ^ HIGH COURT OF CHHATTISGARH AT BILASPUR S'male Bench: Hon'bte Shri Justice Prashant Kumar Nlishra Second Apoeal Appellant Respondents Versus Than Singh Bhukhau Ram and others. Shri Manoj Paranjpe with Shri Vlkram Dixit, counsel for the appeltant. Second Appeal under Section 100 of Cwil Procedure Code ORAL ORDER (01^)2.2010) j Heard on admission. (2) The unsuccessful plaintiff in the Courts below, in a suit for mandatory injunctionand removal has preferred this secohd appeal under Section 100 of Code of dvil Procedure. (3) The case of the plaintiff, in brief is that he along with his brothers had purehased laml bearing Khasra No.635 area 2.355 hectares at vitlage Korda and residing therein after constnicting a house. In the southem part of the house, he has opened a door and he is using it for last 20-25 years. This door opens on the vacant tend and he is ateo enjoying the right of light and air from the open piace. However, in 1995, the respondents have constructed a huge wall on the southern side of th,e appetlant's house whteh has obstrucfed the door as also the window, thereby necessity of frting the present suit for injunction and also for directing the respondents/defendants to remove the wall not to obstruct the ptaintiTfe' r^fht of way or the light and air comjng mt the house. (4) The defendants have stated that the construction is made on the Govemment land by Panchayat and the plaintiff himself has encroached the Govemment land. According to the defendants, the construction made by them is in public interest and it has been made in s' accordance wth law. They have stated that no right of the plaintiff is obstructed and that even though the construction made by the plaintiff is on govemment land, the State Govemment has not been joined In this suit. It was also stated by them that there was no door or vnndow on the southem side of the ploVhouse of the plaintiff and it is only when the Panchayat started raising construction, the plaintiff also wantedto open the door and window on the southem side and thus the dispute arose. (5) The trial Court as well as the appellate Court has concurrently found that the plaintiff is not using the door for last 20-2S years anc!" that the suit is not maintainabte for non-joinder of the State of Chhattisgarh which is a necessary party. (6) Both the Courts have concurrently found that that as per the demarcation (E)frD/1) it is proved that the plaintiff has encroached on the Govemment land and that the construction made by the defendants on behalf of the Panchayat is on the Government land. th the fsrst appellate court, the plaintiff has made a categorical statement recorded in para 9 of the judgment that the case of the plaintiff is not on the basis of the easementary right and that since the defendants have made illegal construction, Tundamental right of the plaintiff has been violated, hence, he has preferred this suft. (7) In the opinion of this Court, the plaintiff has failed to proye any right in his favour on the disputed land or as to how the constructfon made by the Panchayat is on his land. !n view of the concurrent fmdings of the Courts below, this Court does not find any substantial question of law in this appeal for determination. (8) The petition thus Tails, and is hereb^dismissed at the admission stage. ^ Sd//- Pr,ashant Kumar Mishra Judge _—J Bini