SECOND APPEAL No.508 OF 1988 ------- Against the judgment and decree dated 15.06.1988 passed by Additional District Judge IX, Patna in Title Appeal No.76 of 1987 allowing the appeal in part and modifying the judgment and decree dated 12.06.1987 passed by Additional Munsif I, Patna in Title Suit No.09 of 1986 (04/1987). --------- 1. Smt. Gora Devi Dugar, wife of Jaskaran Dugar. 2. Smt. Jaskawari Devi Dugar, wife of Sri Manik Chand Dugar. Both resident of Mohala- Muradpur, Ashok Raj Path, Police Station- Pirbahore, district Patna. ---Plaintiffs - Respondents- Appellants. Versus 1. Smt. Asha Devi, wife of Sri Krishna Das. 2.(i). Raj Gopal Gupta 2.(ii). Rajesh Gupta 2(iii). Smt. Rani Resident of Aluminium Dukar, Opposite Eye Hospital, P.M.C.H. Ashok Raj Path, Muradpur, Police Station-Pirbahore, District Patna. ---Defendants – Appellants- Respondents. For the appellants : M/s.Tara Kant Jha, Senior Advocate,Ashok Kr.Jain, N.K.Agrawal & S.K.Saraf, Advocates. For the respondents : M/s. Sidhendra Pd. Singh, Senior Advocate, Ashok Kumar, Gopal Tiwary, Abhay Kumar & K.K.Sinha, Advocates. P R E S E N T Hon’ble Mr. Justice S. N. Hussain ------ S. N. Hussain, J. This second appeal has been filed by the plaintiffs-respondents-appellants against the judgment and decree of the learned court of appeal below. 2. The matter arises out of Title Suit No.09 of 1986 (04/1987) which was filed by the plaintiffs-appellants for the following reliefs: (i) Declaration that the defendants have no right to lay sewerage line or construct any chamber or to lay any water pipe line over the plaintiffs’ portion of passage, i.e. A B C D of the sketch map of the plaint. (ii) Direction to the defendants to remove sewerage line, chamber, water lines from the plaintiffs portion of passage, i.e. ABCD and if they failed, it be removed through the process of the court. (ii)(a) Declaration that defendants have no right to fix any stairs or put any obstruction in use of 10’ 9 ½” x 4’ passage over their portion of land which is adjacent east to the passage marked as ABCD and is shown by letters DCFE in the sketch map of the plaint and - 2 - also for an order for removal of the said obstruction from that portion of the land by due process of law. (iii) Direction to the defendants to remove weights and supports of the Barangas and the roofs of their house from the wall marked by letters G H shown in the sketch map within a date fixed by the court, otherwise through the process of the court. (iv) Costs of suit. (v) Any other relief to which the plaintiffs are deemed entitled. 3. Admittedly Holding No.63 was 23’9” in breadth east to west and 108’ in length north to south being adjacent south to Ashok Raj Path. It is also an admitted fact that on the entire length of the said holding to its west 2’2” wide land was left by the original owner Sudhama Chandra Palit, Son of Late Sushil Chandra Palit to be included in the 5’ wide common passage in the west between Holding Nos. 63 and 62. It is also not in dispute that the remaining northern eastern portion of the said holding mentioning 21’7” in breadth east to west and 63’ in length north to south adjacent to Ashok Raj Path was sold half and half by the said owner to the plaintiffs and the defendants by separate registered sale deeds dated 29.12.1981. By Ext.-4 the said owner sold 63’ in length and 10’ 9 ½” wide portion of the said land to the plaintiffs towards west which was adjacent east to the common passage between Holding Nos. 62 and 63. By Ext.-A, the said owner sold 63’ in length and 10’ 9 ½” wide portion of the said land to the defendants to the east which was adjacent east to the portions sold to the plaintiffs. It is further admitted case of the parties that the length of both sold portions of lands were 63’ and they were adjacent to each other for the entire length and after 40’ from the north 4’ wide passage was left by both the parties for the ingress and egress towards western common passage between Holding Nos. 62 and 63 and to the south of the said 4’ wide passage of defendants and plaintiffs, their remaining 19’ long purchased land was situated. - 3 - 4. Following sketch map was attached to the plaint:- Ashok Raj Path 10 Ft 9 ½ inch 10Ft 9 ½ inch 21 ft 7 inch Plaintiffs Defendants Plaintiffs Defendants Remaining Land of Vendor Holding No 63. Holding No. 62 2 ft. 2 inch passage left by vendor inH. No. 63 63 ft 5 Ft Passage G H D F B A C E 108 ft Land Of Others S W E N - 4 - 5. The dispute between the parties was that 4’ wide passage between the two portions of purchased lands of both the parties, shown as ABFE in the map, was left by the parties only for the purpose of their ingress and egress towards the western common passage between Holding nos. 62 and 63 and also towards the eastern plot which the plaintiffs wanted to purchase subsequently from its owner who was not a party to the suit. However, the defendants claimed that the said 4’ wide passage ABFE was left not only for their ingress and egress, but also for passing their sewerage and water pipe line connections which was already being used for that purpose and the defendants had only reconstructed the same. The other dispute between the parties was that the plaintiffs claimed that the wall shown as GH in the map belonged to the plaintiffs and hence the defendants should remove their barangas and roof kept over it, whereas the defendants claimed that the said wall was being used for that purpose since much before by the defendants who had every right to use the said wall. Plaintiffs also claimed 10 inches wide land beyond the wall GH, which the defendants denied. 6. After considering the respective claims of the parties, the learned trial court framed the following issues for decision in the suit:- (i) Is the suit, as framed, maintainable? (ii) Have the plaintiffs got valid cause of action for the suit? (iii) Is the suit barred by the provisions of specific relief Act? (iv) As the suit bad for non-payment of sufficient court fees? (v) Have the defendant got right to lay sewerage pipe and water pipe through the disputed 4’ wide passage and has it been created to provide the defendant for enjoyment of all amenities and facilities from the western common passage ? (vi) Are the defendants liable to provide 4’ wide passage on their land as well? (vii) Have the plaintiffs got land beyond their eastern wall and are the defendants liable to remove any structure? (viii) Are the plaintiffs entitled to the reliefs claimed? (ix) Are the plaintiffs entitled to any other relief? 7. On the said issues, evidence were led by the parties and after considering the pleadings as well as evidence of the parties, the learned 1st Additional Munsif, Patna, decreed the suit on contest with cost by judgment and decree dated 12.06.1987 after arriving at the following findings:- - 5 - (a) 4’ wide passage would extend over the land of the defendants in continuation of the passage left by the plaintiffs on their lands. (b) The owner had permitted the parties to use lands as passage only and they should not use the same for laying sewerage and water pipe only on the ground that there is no restriction on such user. (c) Defendants were given only a limited right of way in the deeds of title and that too with further limitation that non-vegetarian article would not pass through the passage. (d) The defendants or the plaintiffs have not been given any right to lay sewerage pipe or water connection in the said common passage. (e) The portion of the wall shown as GH in the map is fully in the share of the plaintiffs and hence, the defendants should remove their roof barangas from the said wall of the plaintiffs and put it on their own support. (f) The plaintiffs have failed to prove their title over 10” wide land beyond their wall. 8. Against the aforesaid judgment and decree of the trial court, the defendants filed Title Appeal No.76 of 1987 and after considering the respective claims of the parties, the learned court of appeal below framed the following issues for determination in the title appeal:- (i) Whether the defendants are entitled to lay sewerage pipe, and construct chamber over the disputed passage four ft wide in the land of the plaintiffs and whether they are entitled only for right of passage? (ii) Whether according to the agreement, the defendants were also liable to leave passage four ft. wide and 10 ft 9.5 inches in length in continuation of the passage left by the plaintiffs for enjoyment of the plaintiffs and whether any construction made thereon by the defendants is liable to be removed? (iii) Whether the plaintiffs have proved that they have their 10 inches land towards east after the wall shown as G H in front of the holding facing Ashok Raj Path? - 6 - 9. After considering the pleadings of the parties, the evidence adduced by them and the judgment and decree of the learned trial court, the learned Additional District Judge, IX, Patna, allowed the appeal in part by his judgment and decree dated 15.06.1988 after arriving at the following findings:- (a) The defendants were also to leave 4’ wide passage running 10’9 ½” in length adjacent to the west left by the plaintiffs and if any construction is made in the said passage below 8’, it must be removed and demolished as according to the deeds of transfer both the parties could make any construction over the said passage only after 8’ height. (b) The statement of P.W.2 that there was no arrangement of drain through the shop is enough to show that the drain shall pass through the said common passage and hence it was admitted that there was an open drain in the said passage earlier. (c) The common vendor D.W.3 has stated in paragraph 7 that it is understood between the parties that they will utilize the common passage for sewerage, water pipe line etc. (d) The only restriction imposed by the common vendor was that non-vegetarian item should be passed through the said passage. (e) There is nothing either in Ext.-A or in Ext.4 to prohibit the defendants from laying sewerage and water pipe line in the common passage and the said amenities being modern requirement of a civilized person living in a city like Patna, the said right of the defendants cannot be taken away. 10. Against the aforesaid judgment and decree of the learned court of appeal below the plaintiffs filed the instant second appeal on 26.09.1988, whereafter it was admitted on 16.04.1990 and the following substantial question of law was framed:- - 7 - (i) Whether the court of appeal below erred in construing the two sale deeds in question which in effect are deeds of title? However, at the time of hearing, the learned counsel for the appellants has filed additional grounds with two substantial questions of law which are as follows:- (ii) Whether the findings of the courts below is perverse so far as it concerns the occupation of 10”X 22’ of land towards east of the plaintiffs’ wall by defendants as it holds, contrary to the oral and documentary evidence, that the plaintiffs have failed to prove that the defendants are in possession of their said strip of land? (iii) Whether the defendants have an alternative route for carrying their sewerage and water pipe line through their own plot? 11. Learned counsel for the appellants (plaintiffs) submitted that in both the deeds, i.e. Ext.-4 executed by the admitted original owner in favour of the plaintiffs with respect to the western portion of land as well as Ext.-A executed by the admitted original owner in favour of the defendants with respect to the eastern portion of land, no right was given for using the 4’ wide passage for sewerage and water pipe line as both the parties had opening towards the north on Ashok Raj Path and all such owners had to take such connections through their own lands to Ashok Raj Path. He further claimed that in both the deeds, it was mentioned that if defendants transfer their lands to any other person, the plaintiffs would close the passage, hence the passage ‘ABFE’ was only for ingress and egress, which was also supported by the common vendor in his deposition as D.W.3, whereas the husband of the plaintiff while deposing as P.W.1 clearly stated that sewerage and water pipe line in both the portions were from north. Learned counsel for the appellants also claimed that since the said 4’ wide passage also lies between the northern portion and southern portion of the land purchased by the defendants, they can use their portion of the common passage ‘CDFE’ for taking sewerage and water connection from south to north from below the land level and not through the plaintiffs’ portion of the common passage ‘ABDC’. He also claimed that if defendants take their sewerage and water connection through the plaintiffs’ portion of the passage and - 8 - subsequently transfer their purchased land to any other person, the plaintiffs could not be able to exercise their right to close passage as given in both the aforesaid sale deeds. Learned counsel for the appellants also avers that the finding of the trial court directing the defendants to remove barangas and weight of roof of their house from the plaintiffs, i.e. ‘GH’ shown in the map has not been reversed by the learned appellate court and hence a specific direction in that regard is required. Hence, on this ground it was stated that the judgment and decree of the learned court of appeal below be set aside and the judgment and decree of the trial court be affirmed. 12. On the other hand, learned counsel for the respondents opposed the contentions of learned counsel for the appellants and submitted that paragraph-7 of Ext.-A, the sale deed of the defendants, clearly provided that the defendants would be entitled to construct a roof 8’ over the said passage ‘CDFE’ and over the said roof, they can make all and any construction and the said 4’ wide passage would be for the use of the defendants and the plaintiffs who would put a gate and both of them would keep the keys. It was also claimed by learned counsel for the respondents that sewerage and water line are continuing from before their sale deeds as were proved by plaintiffs’ witnesses, namely P.Ws. 1, 2 and 3 themselves. He also claimed that the vendor of both the parties specifically stated while deposing as D.W.3 that common Rasta ‘ABFE’ was left for the use of the plaintiffs and defendants and it was understood between the plaintiffs and the defendants that they would use it as Nali etc. He also claimed that since the sewerage and water line were going through the said passage from before, any change in the said arrangement could be only under the provisions of the Patna Municipal Corporation Act and Bihar Municipal Corporation Act. In this connection, he relies upon three decisions, one in case of Md. Ziaul Haque Vs. Calcutta Vyaper Pratisthan, reported in AIR 1996 Calcutta 605, the other in case of Sukhbir Singh & others Vs. Brij Pal Singh and others, reported in (1997) 2 Supreme Court Cases 200, and the third in case of Sarifa - 9 - Devi (substituted) & ors Vs. Anna Khatoon & Ors.(substituted), reported in 2006 (4) PLJR 397. 13. So far the first substantial question of law framed by the plaintiffs with respect to construing the two sale deeds dated 29.12.1981 as deeds of title is concerned, they are not in dispute and none of the parties have alleged that the sale deed of the other was either illegal or contained wrong statement. It is admitted by both the parties that the said sale deeds, i.e. Ext.4 ( in favour of the plaintiffs) and Ext.-A (in favour of the defendants) were executed by the same person being the owner of both the portions sold to the plaintiffs and the defendants and in the said sale deeds, it was specifically mentioned that the western land 10’ 9 ½” in width and 63’ in length of Holding no.63 was sold to the plaintiffs, whereas the adjacent eastern land 10’ 9 ½” in width and 63’ in length was sold to the defendants and that both the parties would leave 4’ wide passage running east to west bifurcating their purchased portions leaving 40’ wide land towards north and 19’ wide land towards south in both the lands of the plaintiffs and the defendants. It is also an admitted fact that in both the sale deeds, it had been mentioned that the said 4’ wide passage would be used by the parties for their ingress and egress towards western passage lying between Holding no.63 and Holding no.62 and the only restriction provided was that neither of the parties would take any non-vegetarian items through the said passage and that if the defendants transfer the purchased lands to any other person, the plaintiffs would be at liberty to close that portion of the passage which was on their land. Admittedly, there was no mention in either of the said deeds that any of the parties would take their sewerage and water pipes through the said passage. 14. The law is well settled that the sale deeds are not only documents of title, rather they are also foundation of the rights of the parties and hence it cannot be legally over-rided by some statements here and there made by one or two witnesses in the suit. Hence, it certainly raises a valid and substantial question of law and this - 10 - court is compelled to interfere as per the true legislative intendment and scope of Section 100 of the Code of Civil Procedure. Reference in this regard may be made to two decisions of the Hon’ble Apex Court, namely in case of Sri Chunilal Mehta and sons Ltd., V. Century Spinning and Manufacturing Co. Ltd., reported in AIR 1962 Supreme Court 1314 as well as in case of Gurdev Kaur and others Vs. Kaki and others, reported in (2007) 1 Supreme Court Cases 546. On the other hand, the case laws relied upon by learned counsel for the respondents in cases of Md. Ziul Haque(Supra), Sukhbir Singh (Supra) and Sarifa Devi (Supra), are not at all applicable to the facts and circumstances of the case. 15. Apart from the aforesaid provisions, learned court of appeal below committed a clear error of record by assuming that the vendor of both the parties while deposing as D.W.3 had supported the case of defendants, whereas in paragraphs 28-29 of his deposition he had specifically stated that all the rights given to the parties by the sale deeds in question were fully described in the sale deeds and that except what was mentioned in the said deeds, the parties had no right. In his entire evidence, there is no reference to any Nala or sewerage and water pipe line in the said passage. Hence, there is no question of adding anything to the contents of the sale deeds by any statement made by any of the parties. D.W.1, who also deposed on behalf of the defendants as their earlier tenant, specifically disproved the claim of the defendants by stating in paragraphs 13 and 15 of his deposition that 4’ Rasta had no Nala prior to the sale deeds in question and it was made by the defendants after their purchase and also that the main sewerage was on Ashok Raj Path in front of defendants’ shop and hence they can take their sewerage and water pipe line through their own lands towards north. Although, this witness was considered by the learned trial court in paragraph 17 of its judgment, but the learned court of appeal below completely ignored the said statement, again committing an error of record, although there was no other evidence to support the defendants’ claim. - 11 - 16. Learned court of appeal below committed another error of record by stressfully assuming that in paragraph 29 of his deposition, P.W.1, who was the husband of plaintiff no.1, had stated that earlier Nali was situated in the passage in question, although no such statement was made and it was only stated in that paragraph that in the holding in question there was a Nali and it was further clarified in paragraph 18 of the same deposition that the said Nali was not in the passage, rather it was towards the north in the holding. 17. So far the objection of the respondents (defendants) that there being sewerage and water connection earlier through the passage, no change can be allowed except as per the specific provision of Patna Municipal Corporation Act and Bihar Municipal Corporation Act is concerned, it may be stated that as specific rights were given in the deeds of title and no right for taking any sewerage or water connections through the said passage having been given to the defendants in the sale deeds, the provisions of the said Acts were not applicable and in any view of the matter, the defendants having failed to prove that any such sewerage or water line existed from before, the said objection cannot be sustained. In the said circumstances, it is found that the learned court of appeal below has erred in construing the sale deeds in question, namely Ext.-4 and Ext.-A which are in-effect deeds of title and are foundation of the rights of the parties and no one can legally get more than what had been specifically given to them by such deeds, whereas learned trial court had rightly held that since the parties had been given only the right of ingress and egress through the said passage, they can use the said passage only for the said purpose and not for any other use and had directed the defendants to remove their all sorts of construction, including stairs and chamber, as well as sewerage and water pipe line from the said portion of the passage ‘ABDC’ belonging to the plaintiffs. - 12 - 18. So far the third substantial question of law raised by the plaintiffs- appellants is concerned, not only the plaintiffs and their witnesses, but also the witness of the defendants, namely D.W.1, who was the earlier tenant of the defendants, specifically claimed in paragraph 13 of his deposition that earlier there was no Nala in the passage in dispute and the main sewerage was on Ashok Raj Path in front of their shop and hence they can take their sewerage and water connection through it towards north, hence it amply proved that the defendants had an alternative arrangement for carrying their sewerage and water pipe line through their own plot towards north instead of taking it through the land purchased by the plaintiffs without any right as such being given in the sale deeds to the defendants in that portion. Hence, this question is also decided in favour of the plaintiffs (appellants). 19. So far the second substantial question of law raised by the appellants with respect to the findings of the learned courts below regarding 10” X 22’ of land towards east of the plaintiffs’wall, shown as GH in the map, is concerned, learned trial court had specifically held in its judgment after considering the pleadings and evidence of the parties that the said portion of the wall, shown