# Smt. Urmila Devi v. Ram Dhani and others

- **Citation:** (2008) 3 ILRA 730
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-24
- **Case number:** Second Appeal No. 1618 of 1989
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-urmila-devi-v-ram-dhani-and-others-41170
- **Pages:** 4

## Headnote

(A) Code of Civil Procedure-Section100Second
Appeal-Suit
for
permanent
injunction-on the basis of registered sale
deed-using
the
same
by
raising
construction
for
40
years-if
the
injunction refused-right of egress and
ingress shall be effected-both the Courts
below recorded finding of facts about
two different means of egress and
ingress-cannot be interfered by the
appellate Court in second appeal-against
the
concurrent
finding
of
factsparticularly in absence of pleadings of
easementry rights.

Held: Para 4

Thus it is evident that the claim of the
plaintiff that she has no other entrance
or exit to her house constructed in the
year 1985, has also not been accepted by
the trial court though the suit was
decreed injuncting the defendants from
interfering in the exit and entry towards
north side. This part of the finding stands
confirmed by the lower appellate court
and thus I am of the considered view
that this finding by the two courts is a
finding of fact and can not be interfered
in exercise of jurisdiction under Section
100 C.P.C.
3 All] Smt. Urmila Devi V. Ram Dhani and others
731
(B) Code of Civil Procedure-Section100Second Appeal-substantial question of
law-must be debatable-not previously
settled-must have material bearing on
decision-dependent upon particular facts
of cases.

Held: Para 6

To be 'substantial' question of law it
must
be
debatable,
not
previously
settled by law of the land or a binding
precedent, and must have a material
bearing on the decision of the case, if
answered either way, in so far as the
rights of the parties before it are
concerned. It will therefore, depend on
the facts and circumstances of the each
case whether a question of law is
substantial one and involved in the case,
or not? The same view has been
expressed by the Apex Court in the cases
of Rajeshwari Vs. Puran Indoria, (2005)
7 Supreme Court Cases, 60.
Case law discussed:
(2001) 3 SCC 179, (2005) 2 Supreme Court
Cases, 500, (2005) 7 Supreme Court Cases,

## Text

730 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
take action on the administrative side
against the erring Rent Control and
Eviction Officer, who made the allotment
in most illegal manner. Rent Control and
Eviction Officer played the role of willing
tool in the hands of sitting M.P. and abject
surrender to his whims on the part of Rent
Control and Eviction Officer.

12. Allottee Surendra Yadav is
directed to pay damages to the landlord
for
use
and
occupation
of
the
accommodation
in
dispute
since
22.05.1997 till the date of actual vacation
at the rate of RS.2,500/- per month. This
amount shall be recovered from him by
the District Magistrate like arrears of land
revenue within three months and handed
over to the landlord Ram Naresh Lal. In
this regard also the Court hopes that the
District Magistrate will not provide the
opportunity to the landlord to file an
application
in
this
writ
petition
complaining
non-compliance
of
this
direction.

13. As misuse of power and abuse of
process of law was extraordinary in the
allotment hence extraordinary directions
for redressal have been issued.

14. Office is directed to supply a
copy of this judgment to learned Chief
Standing Counsel free of cost within three
days.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2008

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Second Appeal No. 1618 of 1989

Smt Urmila Devi

...Appellant
Versus
Ram Dhani and others ...Respondents

Counsel for the Appellant:
Sri. V.K. Singh
Counsel for the Respondents:
Sri. Sushil Kumar Mehrotra
Sri. R.J. Shahi

(A) Code of Civil Procedure-Section100Second
Appeal-Suit
for
permanent
injunction-on the basis of registered sale
deed-using
the
same
by
raising
construction
for
40
years-if
the
injunction refused-right of egress and
ingress shall be effected-both the Courts
below recorded finding of facts about
two different means of egress and
ingress-cannot be interfered by the
appellate Court in second appeal-against
the
concurrent
finding
of
factsparticularly in absence of pleadings of
easementry rights.

Held: Para 4

Thus it is evident that the claim of the
plaintiff that she has no other entrance
or exit to her house constructed in the
year 1985, has also not been accepted by
the trial court though the suit was
decreed injuncting the defendants from
interfering in the exit and entry towards
north side. This part of the finding stands
confirmed by the lower appellate court
and thus I am of the considered view
that this finding by the two courts is a
finding of fact and can not be interfered
in exercise of jurisdiction under Section
100 C.P.C.
3 All] Smt. Urmila Devi V. Ram Dhani and others
731
(B) Code of Civil Procedure-Section100Second Appeal-substantial question of
law-must be debatable-not previously
settled-must have material bearing on
decision-dependent upon particular facts
of cases.

Held: Para 6

To be 'substantial' question of law it
must
be
debatable,
not
previously
settled by law of the land or a binding
precedent, and must have a material
bearing on the decision of the case, if
answered either way, in so far as the
rights of the parties before it are
concerned. It will therefore, depend on
the facts and circumstances of the each
case whether a question of law is
substantial one and involved in the case,
or not? The same view has been
expressed by the Apex Court in the cases
of Rajeshwari Vs. Puran Indoria, (2005)
7 Supreme Court Cases, 60.
Case law discussed:
(2001) 3 SCC 179, (2005) 2 Supreme Court
Cases, 500, (2005) 7 Supreme Court Cases,
60.

(Delivered by Hon'ble Mrs. Poonam
Srivastav, J.)

1. Heard Sri V.K. Singh, learned
counsel for the plaintiff-appellant and Sri
S.K.
Mehrotra
Advocate
for
the
defendant-respondents.

2. The plaintiff instituted a suit for
permanent injunction to restrain the
defendant-respondents from interfering in
the rights of plaintiff in use of the land as
passage as well as for removal of Charan,
Nad etc, which was kept by the
defendants-respondents on the disputed
land. The case of the plaintiff is that the
disputed land i.e. Plot No. 1254 was
purchased in the year 1983 and thereafter
a house was constructed in the year 1985.
The disputed land was only, passage for
egress and ingress to the plaintiff's house.
It was also pleaded that the defendants
have started collecting building material
i.e. sand, bricks etc. with an intention to
make construction and completely stop
the passage which will cause irreparable
loss to the plaintiff. The defendants
disputed the claim of the plaintiff. The
land which was appurtenant to the
defendants' house was used since a very
long time much before the plaintiff
purchased plot No. 1254 and constructed
a house. In fact they are owners and the
plaintiff has no right whatsoever.

3. During the pendency of the suit, a
commission was issued to make spot
inspection. Oral statements were adduced
from both sides. Lalji Lekhpal was
examined as DW-1. On consideration of
oral and documentary testimony as well
pleadings on behalf of either parties, the
trial court recorded a finding that the
plaintiff
has
not
perfected
her
easementary right of 20 years user since
the admitted case is that the land in
question was purchased only in the year
1983. The house was constructed in the
year 1985 and, thereafter original suit No.
534 of 1985-Smt. Urmila Devi Vs. Ram
Dhani
and
others
was
instituted.
However, the trial court decreed the suit
in favour of the plaintiff to a limited
extent that the plaintiff has a right of
egress and ingress otherwise the house
constructed by the plaintiff will be
rendered useless without any passage. The
defendants preferred a civil appeal No. 10
of 1987 against the judgment and decree
dated 5.1.1987 passed by Vth Additional
Munsif, Mirzapur. The lower appellate
court did not agree with the reasonings
and findings of the trial court. The lower
appellate court was of the view that as
averred in the written statement by the
732 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
defendants, the disputed land is abadi of
the defendants and they are in possession
of the land in dispute since more than 40
years. Nad and Khunta are also in
existence since a very very long time. The
lower appellate court did not agree with
the findings of the trial court regarding
egress and ingress, since no easementary
right accrued to the plaintiff. Besides, it is
not disputed that the plaintiff is using the
disputed land only since last two years.
Besides, on perusal of the evidence on
record, it is established that there are two
doors in the house, one opens towards
north of the disputed land and another
opens towards south of the house. PW-l
admitted in his statement that the disputed
land is not part of the land which was
purchased by him in the year 1983 and
this admission stands corroborated by
PW-2. The defendants are in occupation
of the land in question prior to the
Zamindari Abolition and, therefore, the
plaintiff has no claim over it and not
entitled for relief of injunction.

4. I have considered the argument of
the respective counsels and perused the
entire record. It is true that the plaintiff
has
not
pleaded
or
claimed
any
easementary right whatsoever in the
plaint. She has unequivocally admitted
that the house-constructed on the plot was
purchased only in the year 1983. The
house was completed in the year 1985 and
the suit was instituted in that very year.
Thus no easementary right accrued to the
plaintiff. Besides, there is complete
absence of pleadings of easementary
right. Learned counsel for the defendantrespondents has placed the judgment of
the trial court. No doubt the suit was
decreed so far the right of egress and
ingress was concerned and the defendants
were injuncted from interfering in the said
right but there is clear cut finding that
there are two entrance and exit to the
house, one towards disputed land and the
other on the back side. This finding is
confirmed by the lower appellate court in
the appeal preferred by the defendantrespondents. Neither any appeal nor cross
objection was preferred by the plaintiff
regarding the findings to the effect that
there are two passage for egress and
ingress, one on the south and the other on
the north side. The specific finding by the
trial court is that the plaintiff can also use
the passage on the south side which
connects with chakroad and passage on
the north side which is through the
disputed land. Thus it is evident that the
claim of the plaintiff that she has no other
entrance or exit to her house constructed
in the year 1985, has also not been
accepted by the trial court though the suit
was decreed injuncting the defendants
from interfering in the exit and entry
towards north side. This part of the
finding stands confirmed by the lower
appellate court and thus I am of the
considered view that this finding by the
two courts is a finding of fact and can not
be interfered in exercise of jurisdiction
under Section 100 C.P.C.

5. Learned counsel for the appellant
has tried to emphasize on three substantial
questions of law which he has framed but
was not able to substantiate that the
judgment of the lower appellate court
suffers
from
any
substantial
error
formulated in the memo of appeal. The
finding of the trial court that the plaintiff
has two passage for egress and ingress
was neither challenged nor set aside by
the lower appellate court and I do not
think that this Court can interfere in the
findings arrived at by the courts below
which is based on sound reasonings. The
3 All] Prashank Ranjan Singh V. State of U.P. and others
733
argument of the learned counsel for the
appellant that the plaintiff has acquired
easementary right is without any basis.
There is no such claim in the plaint and it
is not disputed that the suit was instituted
within two years from the date of
purchase of the land and, therefore, the
courts below were absolutely correct in
refusing the claim of easementary right
specially in absence of any pleadings to
that effect.

6. The Apex Court in the recent cases
of Santosh Hazari Vs. Purshottam Tiwari,
(2001) 3 SCC, 179 and Govinda Raju Vs.
Mariamman (2005) 2 Supreme Court
Cases, 500, ruled that a point of law which
admits of no two opinions may be a
preposition of law but can not be a
substantial
question of law. To be
'substantial' question of law it must be
debatable, not previously settled by law of
the land or a binding precedent, and must
have a material bearing on the decision of
the case, if answered either way, in so far as
the rights of the parties before it are
concerned. It will therefore, depend on the
facts and circumstances of the each case
whether a question of law is substantial one
and involved in the case, or not? The same
view has been expressed by the Apex Court
in the cases of Rajeshwari Vs. Puran
Indoria, (2005) 7 Supreme Court Cases,
60.

7. In view of the touchstone and
principles laid down by the Apex Court in
the aforesaid decisions, I do not find any
substantial error of law and a fit case for
interference in exercise of jurisdiction
under Section 100 C.P.C. The judgment of
the lower appellate court do not call for any
interference. The appeal lacks merit and is
accordingly dismissed. Cost on parties.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2008

BEFORE
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No. 38657 of 2005

Prashant Ranjan Singh
...Petitioner
Versus.
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.K. Srivastava

Counsel for the Respondents:
S.C.

Payment of Gratuity Act, 1972-Section
4(6)-Recovery
from
Gratuity-amount
discovered after death of employeerecovery against alleged deficiency of
items
in
store-while
the
deceased
employee was working as store in
charge-held-cannot
be
recovered
without issuing show cause noticewithout affording an opportunity of
hearing-illegal.

Held: Para 20

Under the circumstances, I am of the
opinion that the recovery of Rs.21,41600 sought to be made in respect of the
alleged deficiency in the items in the
Office Store from the amount of gratuity
payable in respect of the deceased
Awadhesh
Singh
is
against
the
provisions of the said Government Order
dated 28-7-1989 and the said recovery
cannot be made from the gratuity
payable in respect of the deceased
Awadhesh Singh

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. The present writ petition has been
filed under Article 226 of the Constitution
of India, interalia, praying for quashing