Orissa High Court
Brajaraj Mishra And Ors. vs Ananda Chandra Mishra And Ors. on 3 July, 2002
Equivalent citations: AIR2002ORI205, AIR 2002 ORISSA 205, (2002) 94 CUT LT 638, (2003) 1 CIVILCOURTC 91, (2003) 1 RECCIVR 695
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. Defendants are appellants before this Court against a confirming judgment.
2. Respondents have filed the suit for a declaration that they and defendants-appellants have joint title over the suit property and issue of direction to the defendants-appellants to remove the construction put by them over the suit land. The case of the plaintiffs-respondents is that they and defendants-appellants originally belonged to a joint family and are separate for last 4 to 5 generations. The parties have some joint properties like tank and common passage. The houses and baris of the defendants-appellants and some of the respondents lie to the South of the village road running from East to West and houses of some of the respondents lie to the North of village road, but their baris lie to the South of the village road. The suit property measuring 17 links in length from North to South having a width of 5 links on the Northern side and 8 links on the Southern side lies to the South of the village road and homestead of the defendants-apellants lies to the adjoining West and the house of plaintiff No. 7 lies to the adjoining East of the suit land. It is alleged that this disputed strip of land had been kept joint by the ancestors of the parties for use as common passage for the family members of the parties and this passage is used for going to the bari from the village road. In the settlement R.O.R. of the year, 1930 the land appertains to plot No. 166 corresponding to Hal Plot No. 164. The plaintiffs allege that in the year, 1966 the defendants and the father of defendants 1 and 2 tried to close the disputed common passage from the North side giving rise to a proceeding under Section 147, Cr.P.C. The said proceeding was dropped on the basis of an undertaking given by defendants and father of defendants 1 and 2 that they would maintain the said passage and would not put any obstruction. However, after the death of the father of defendants 1 and 2, they again created disturbance and obstructed the disputed passage by fixing a door on the North and raising wall on the Southern side and thereby they have amalgamated the suit passage with their homestead lands. On these allegations, the suit had been filed.
3. Defendants-Appellants filed a joint written statement refuting the claim of the plaintiffs-respondents. According to the defendants-appellants the suit property is a part and parcel of the homestead and was never used as a passage by the plaintiffs-respondents.
4. On the basis of the pleadings of the parties, the trial Court framed 10 issues out of which 2 issues are important for consideration of this appeal. The first question relates to limitation and second question relates to interpretation of Ext. 8, a document of compromise entered into between the defendants and some of the plaintiffs during pendency of the suit. Both the courts below held that the suit was not barred by limitation and Article 65 of the Limitation Act is applicable to the present facts of the case. So far as Ext. 8 is concerned, though the compromise was not given effect to and the suit had to be decided on merits because of jon-joining of some of the plaintiffs in the compromise, both the Courts held that the averments made in the plaint amounts to an admission with regard to title of the plaintiffs-respondents.
5. This appeal has been admitted on the following substantial questions of law.
(i) Whether the suit was barred by limitation;
(ii) What is the effect of Ext. 8 on the rights of the parties in the suit; and
(iii) Whether the judgment of the lower appellate Court can be sustained without considering the effect thereof i.e. of Ext. 8.
6. At the time of hearing of appeal, Sri Mukherjee, learned Senior Advocate appearing for the appellants submitted that so far as the question of limitation is concerned, the suit was barred by limitation in view of Section 15 of the Indian Easement Act, 1882 (for short, "Easement Act"). According to him, Article 58 of the Limitation Act in fact, has no application and the above provision of the Easement Act is applicable to the present facts of the case. Though the appeal has not been admitted on the said ground and no such ground was also taken before the Courts below, I entertain the question since this is a question of law. Section 15 of the Easement Act provides that where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of the right without interruption, and for twenty years, the right to such access and the use of light or air, support to or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. Relying on the said provision, Sri Mukherjee submitted that cause of action as alleged by the plaintiffs having arisen on 30.6.1974, the suit should have been filed within two years from the said date. On the other hand, learned counsel appearing for respondents submitted that Section 15 of the Easement. Act has no aplication to the facts of the case and only Article 65 of the Limitation Act would be applicable. In order to appreciate the submissions of the learned counsel for parties, it is necessary to refer to the averments made in the plaint. In paragraph - 5 of the plaint, it is specifically pleaded that this disputed strip of land had been kept joint by the ancestors of the parties from the time immemorial and it serves as a passage for the family members for going in the village road in the North to their bari and other adjoining land in the South. There was no claim of right over the said property as an easement. On the other hand, the pleadings as noted above clearly indicate that the strip of the land which is in dispute is a joint family property which had been kept joint by the ancestors of the parties for the purpose of use of the same as a passage. I, therefore, do not agree with the learned counsel for appellants that Section 15 of the Easement Act shall be applicable to the facts of the present case. On the other hand, a reading of Article 65 of the Limitation Act clearly shows that in the facts and circumstances of the case the said Article shall be applicable which prescribes the period of limitation of 12 years. The suit having been filed within 12 years from 30.6.1974, I am of the view that the suit is not barred by limitation.
Coming to the next question with regard to interpretation of Ext. 8, it appears that during pendency of the suit there was a compromise between all the defendants and seven of the plaintiffs out of ten. The first paragraph, of the compromise petition shows that on payment of Rs. 1000/- towards consideration money by the defendants to the plaintiffs, plaintiffs gave up their title on the disputed property. The language used in the compromise petition speaks of all the plaintiffs and not those who entered into compromise. Therefore, interpretation given by Sri Mukherjee that in the said document only title of the plaintiffs who entered into compromise has been admitted is not acceptable. Undisputedly, property belonged to all the plaintiffs and the statement made in the compromise petition with regard to title relates to all the plaintiffs and cannot be confined to only the plaintiffs who signed the compromise. On this score, I do not find any merit in the submission of Sri Mukherjee. Since both the Courts have concurrently found joint title of the plaintiffs along with defendants over the strip of land, I do not find any scope to interfere with such findings.
7. Accordingly, this appeal is devoid of any merit and stands dismissed.