Judgment:
N.K. Mehrotra, J.
1. This is second civil appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 19.4.1982 passed by the IInd Additional District Judge, Lucknow in Civil Appeal No. 109 of 1980, Smt. Phoolmati Devi v. Manik Lal and Anr., partly allowing the appeal and modifying, the judgment and decree dated 25.1.1980 passed by the Munsif South, Lucknow in Regular Suit No. 280 of 1972, Manik Lal and Anr. v. Smt. Phoolmati Devi, by which the suit has been decreed.
2. I have heard Shri Ved Prakash, advocate for the appellant and another Shri Ved Prakash (by the same name) as counsel for the respondents.
3. The case of the plaintiff-respondents is that their pucca shop existed over Plot No. 352 towards north abutting the public drain and thereafter there is Government road and also pucca well abutting that shop towards south lying in the middle of that Plot. Towards further south in Plot No. 353 there existed Dwarika Dheesh Temple in which the defendant-appellant was living and thereafter, there was part of Plot No. 350 now belonging to Lala Ram Swarup Rastogi. Adjacent towards east again there was part of Plot No. 350 now allegedly belonging to Narain Das Rastogi and towards west there was Plot No. 354 with the building existing on part towards further west now belonging to Vishnu Sahai and Shanker Sahai. Over eastern part of Plot No. 352, the plaintiff-respondents held a mandi for sale of 'dhak' leaves and the disputed pucca drain running south to north meeting the public drain running east-west towards north and disputed drain abutting the western disputed strip of land towards east by the side of the plaintiff's shop and well. The plaintiff-respondents filed the suit claiming exclusive title and possession over the entire Plot No. 352 including the western portion of land in suit and the pucca drain running south to north in the middle of that Plot No. 352. It was alleged that the defendant-appellant was threatening to demolish 'pucca' drain and take forcible possession over the disputed western portion of Plot No. 352 on or about 27.7.1952. It was prayed that the defendant-appellant be restrained from demolishing any brick work in the plaintiffs' drain and diverting any water from the southern drain to the western drain or interfering with the plaintiffs' possession over western portion of the said Plot of land in holding the mandi for sale of dhak leaves or for any other purpose or in any manner ousting or interfering with the possession of the plaintiff-respondents.
4. The suit was contested by the defendant alleging that the disputed nali running south to north existed on the land on which kharanza had been laid by the Municipal Board and the same was public drain and she had been exercising right, since the time immemorial, of discharging water of her house in that disputed drain and that she had a right of egress and ingress through the disputed western land which did not belong to the plaintiffs and the plaintiffs' suit being based on wrong and incorrect allegations was liable to be dismissed with costs.
5. Following issues were framed in the trial court :
'(1) Whether the defendant has carried out any work to demolish the drain of the plaintiffs and to flow the dirty water of her drain through the drain of the plaintiffs?
(2) Whether the plaintiffs are not the owners of the disputed lane and it is a public drain?
(3) Whether the plaintiffs are the owners of the disputed land as alleged in the plaint?
(4) Whether the water of the drain of the defendant has been flowing as it was flowing at the time of filing of the suit?
(5) To what relief, if, any the plaintiffs are entitled?
(6) Whether the defendant has acquired any right of egress and ingress over the disputed land?
6. The learned trial court held that the disputed drain as shown by dotted line in the earlier map paper No. 39-C-2/3 was a public drain and not a private drain of the defendant-appellant and that the defendant-appellant has been discharging used and rainy water from her house lying towards south to that disputed drain since the time immemorial and the defendant-appellant had acquired prescriptive right to flow used and rainy water of her house through the disputed drain as shown in the Advocate Commissioner's map Paper No. 39C-2/3. It was also held that the plaintiff-respondents have failed to prove that the defendant-appellant was demolishing the disputed drain to claim a decree for permanent injunction as prayed. The suit was partly decreed restraining the defendant from interfering in the possession of the plaintiffs' and from holding 'mandi' for sale of 'dhak' leaves. The suit for the other reliefs was dismissed.
7. The defendant filed first appeal, which has been partly allowed. Cross-objection was also filed which has been dismissed. The judgment of the trial court has been modified and the suit of the plaintiffs was decreed regarding the portion of the disputed land lying towards east of the line X and Y shown in Advocate Commissioner's map (Paper No. 39C-2/3) restraining the defendant-appellant from interfering in the right of the plaintiff's in holding 'mandi' for selling 'dhak' leaves in that land ; while the suit regarding remaining portion of that disputed land lying towards west of line D, Y, was dismissed and that the plaintiffs' suit regarding the disputed nali was also dismissed and the Commissioner's map Paper No. 39C-2/3 was made part of the decree.
8. The defendant-appellant has filed this second civil appeal against that portion of the judgment which has been passed against her.
9. The instant appeal was admitted to decide the following substantial questions of law :
'(1) Whether in the face of the boundaries of the properly owned by the plaintiff-respondents having been described in Papers No. Ka-6 and Ka-8, it could be legally held that the plaintiff-respondents are the owners of the land in dispute?
(2) Whether the lower appellate court could legally demarcate line X, Y in the Commissioner's Map without any evidence on record justifying such demarcation?'
10. After hearing the learned counsel for the parties and perusal of the record, it is established that the plaintiff-respondents claimed their title and possession over the entire land of Plot No. 352 along with well and the building standing thereon. In the plaint, it was shown that in the east of Plot No. 352 there is Plot No. 350, in the west there is Plot No. 354, in the north there is public drain and thereafter Government road and in the south, there is Plot No. 353 with Dwarikadhish Temple building. Before the suit for injunction is decreed for any portion of the land or the land of the drain, it must be located on some scale map. The plaintiffs did not file any scale map. They applied for issuing a commission. A commission was issued to Shri M.K. Srivastava, advocate who again prepared a site plan. The site plan is Paper No. 39C/3 attached with the report of the Commissioner. A perusal of this site plan goes to show that it does not indicate the land of the disputed Plot No. 352 and its' boundaries. Unless it is established that the disputed land over which the decree has been passed by the lower appellate court lies in Plot No. 352, no decree passed by the lower court can be upheld.
11. The suit was filed seeking the relief of injunction from demolishing the brick work in the plaintiffs' drain and diverting the water of the drain of the defendant in the drain in dispute and for injunction from interfering with the possession of the plaintiff's over the western portion of Plot No. 352 over which the plaintiffs were holding a 'mandi' for sale of 'dhak' leaves. Both the courts dismissed the suit for demolishing any brick work in the drain of the plaintiff's on the land of Plot No. 352 and diverting any water on the southern drain to the western drain. In view of the concurrent findings of two courts below on this relief, no interference is required.
12. The defendant-appellant has filed the appeal against the judgment and decree dated 19.4.1982 passed by the IInd Additional District Judge, Lucknow by which the suit for injunction restraining the defendant-appellant from interfering in the right of the plaintiffs in holding 'mandi' for sale of 'dhak' leaves was decreed. The learned first appellate court, without getting any scale map prepared, has drawn two lines indicated by letters X, Y and A, B in the scale map prepared by Shri M.K. Srivastava, the Advocate Commissioner and the suit for injunction over the disputed land lying towards east of the line X, Y as shown in the Commissioner's Map (Paper No. 39C-2/3) has been decreed. The relevant portion of the judgment of the first appellate court is quoted as follows :
'For sake of convenience and to make the decree clear and specific I have drawn a red line marked X, Y, A, B in the Commissioner's plan 39C-2/3 to specify the 'rasta' land of the defendant-appellant and that the defendant-appellant having no right, title or interest in the land lying towards east of X. Y. wherein 'mandi' of 'dhak' leaves was held regularly by the plaintiff-respondents. Thus, demarcating the 'rasta' land and the 'nali' of the defendant-appellant and the defendant-appellant having no right title or interest in the remaining portion of western disputed land lying towards east of X Y in Plot No. 352, the plaintiffs suit for permanent injunction has to be decreed only regarding that portion of the western land lying towards east of X, Y and the suit for the remaining portion of the land lying towards, west has to fail.'
13. I am of the view that if, this second appeal is dismissed, the decree as it is, cannot be executed because of the simple reason that there is no measurement about the land as shown by letters X, Y, A, B, Similarly, it is not clear that what is the width of the land between the two lines which has been left for passage. Further, it is also not clear as to whether the drain towards east of the land as shown by letters X, Y falls in Plot No. 352 which is alleged to have been owned and possessed by the plaintiffs. It is also not clearly established as to whether the, land shown in the west of the line as shown by letters X, Y, falls in Plot No. 354? How the first appellate Judge could draw such lines in this manner in the scale map prepared by the Commissioner, it is also not clear. The learned counsel for the plaintiff-respondents has not been able to justify that the lower appellate court at the time of deciding this appeal had any evidence before him to draw such lines and decree the suit of the plaintiff-respondents. The learned counsel for the plaintiff-respondents has also placed reliance on the Amin's report in the record of the Suit No. 236 of 1915 between the parties, a copy of which along with other record was filed before the first appellate court. That Amin's report cannot be relevant for the purpose of deciding this appeal because before decreeing the suit for injunction, the plaintiffs have to locate and establish that the disputed land over which they are claiming injunction falls in Plot No. 352 and not in Plot No. 354. Since, it was the duty of the court below to get the disputed land surveyed on a scale map before passing the decree and that has not been done and the decree which has been passed, cannot be executed ; therefore, this appeal is to be allowed and the judgment of the first appellate court is to be set aside and the matter is to be remanded with the direction to the first appellate court to get a scale map prepared by some Advocate Commissioner who will locate Plot No. 352 along with its' boundaries as shown in the plaint. In that scale map, the Advocate Commissioner will indicate the place along with its' measurement where the plaintiffs claim that they hold their 'mandi' for sale of 'dhak' leaves. The Advocate Commissioner will also show the length and width of the public 'rasta' as has been shown by the first appellate court by drawing two lines. If, it is found that the disputed land or any portion of it falls in Plot No. 352 then the suit of the plaintiffs for injunction for that portion of the land, which falls in Plot No. 352, can be considered to be decreed. If, the disputed land in which mandi for sale of 'dhak' leaves is being held does not lie in Plot No. 352 claimed to be owned by the plaintiff-respondents, the suit of the plaintiffs cannot be decreed. Thus, the location of the disputed land is to be identified first before deciding the appeal.
14. In view of the above, the appeal is allowed and the lower court's judgment and decree dated 19.4.82 passed in Civil Appeal No. 109 of 1980, Smt. Phoolmati Devi v. Manik Lal and Anr. is set aside.
15. The appeal is remanded to the first appellate court concerned to decide it afresh after making compliance of the directions as stated above. Costs easy.