Punjab-Haryana High Court
Brij Mohan vs Ram Dia on 30 July, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2584 of 2007 (O&M)
Date of decision: 30th July, 2013
Brij Mohan
Appellant
Versus
Ram Dia
Respondent
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present: Mr. Sunil Chadha, Advocate for the appellant.
Mr. Ashish Gupta, Advocate for
Mr. Vikram Singh, Advocate for the respondent.
RAKESH KUMAR GARG, J.
This is plaintiff's second appeal challenging the judgments and decrees of the courts below, whereby his suit for mandatory injunction directing the respondents to remove the construction raised on the land marked as 'ABCD' in the site plan situated in southern side of the house of the appellant at Taraori, District Karnal with a further decree for permanent injunction restraining the respondents from raising further illegal construction over the said piece of land and closing the windows and ventilators existing in the southern wall of the house of the appellant was dismissed and further his appeal was dismissed by the lower appellate Court.
Singh Rattan Pal 2013.08.01 16:25 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2584 of 2007 (O&M) 2
In the suit, the plaintiff-appellant pleaded that he along with his brother Parveen Kumar is owner in possession of a double storey house bearing No.60 situated in Ward No.4, Mohalla Kanungo, Taraori, District Karnal, as detailed in the plaint. The said house was constructed by his forefathers more than 100 years ago. There exists a common piece of land marked as 'ABCD' in the site plan, attached with the plaint, thereby abutting towards southern side of the above mentioned house of the appellant, which is used by the plaintiff- appellant as well as all the residents of the surrounding houses for common purposes i.e. for passing the daily dirty water and the rainy water of their respective houses, and the windows and ventilators of their houses also open towards this land and they are enjoying light and air from there for the time immemorial. It is further averred that in the southern side wall of the house of plaintiff, marked as 'AB' shown in red colour in the site plan, there also exist two windows at points 'E' & 'F' and two ventilators at points 'X' & 'Y', five parnalas i.e. two parnalas at point 'G' & 'H' of the roof of the first floor and two parnalas of the room at the first floor and one parnala/drain of the kitchen at the ground floor, which are marked as 'I' & 'J' of the room on the first floor and 'K' of the kitchen at ground floor, in the site plan. The said windows and parnalas are opening towards the common vacant piece of land marked as 'ABCD'. The said windows and parnalas are in existence in the wall marked 'AB' since the time of construction of the house of the plaintiff. The plaintiff is enjoying the free access of light and air through Singh Rattan Pal 2013.08.01 16:25 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2584 of 2007 (O&M) 3 the said windows marked 'E' & 'F' and ventilators marked 'X' & 'Y' and similarly the plaintiff is using the common land marked 'ABCD' to throw his daily dirty water and rainy water of the house over there, which goes into the municipal drain situated in the street through the drain passing on the common land for the last more than 100 years without any interruption and hindrance and also have the common interest to use the said land.
Even otherwise also, previously the forefathers of the plaintiff and after them, the plaintiff is enjoying the free access of light and air through the said windows and ventilators and using the common land marked 'ABCD' for throwing and passing their daily route and rainy water of his house for the last more than 100 years and as such the plaintiff has acquired the easementary right by way of prescription.
It is the grievance of the appellant that the respondent, who is a strong headed person, had trespassed into common piece of land marked as 'ABCD' and had raised some construction over there by blocking the flow of water from the said land which falls from the parnalas existing in the southern wall of the house of the appellant and is further bent upon to close down the said windows and ventilators by raising further construction over there illegally and forcibly and also without having any right, title or interest. Accordingly, the plaintiff- appellant filed the instant suit.
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Defendant-respondent Ram Dia filed written statement resisting the suit on various legal grounds. On merits, it was denied that in the south of the house of plaintiff, there exists a common vacant land shown by letters 'ABCD'. It was alleged that towards south of the house of the plaintiff, there is house of the defendant; there exists no common land in the courtyard of the defendant; the defendant has a legal right and interest to raise construction in his courtyard; the land is owned and possessed by him from the time of his ancestors and the plaintiff and his forefathers have no concern whatsoever in respect of the land in dispute. It was further denied that the land has been used by him by opening the windows and ventilators thereby enjoying the light and air. It was further stated that in fact the plaintiff has got opened the windows and ventilators by making a request and with an assurance that the same will be closed as and when the defendant would construct second storey of the building over his land including the land in dispute. It was prayed that the suit has been filed on frivolous grounds and is liable to be dismissed.
Thereafter, replication was filed by the plaintiff-appellant. On the basis of the pleadings of the parties, following issues were framed:
"1) Whether the plaintiff has acquired a right of easement of light and air from the windows and ventilators in the southern wall of the house of the plaintiff by way of prescription? OPP Singh Rattan Pal 2013.08.01 16:25 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2584 of 2007 (O&M) 5
2) Whether the plaintiff is entitled to the relief as mentioned in the prayer clause? OPP
3) Whether the plaintiff has no locus standi to file the present suit? OPD
4) Whether the plaintiff has not come to the Court with clean hands? OPD
5) Whether the plaintiff has suppressed the true and material facts before this Court? OPD
6) Whether the defendant is owner in possession of the suit property marked ABCD as alleged in the written statement? OPD
7) Relief."
The trial Court also framed the following additional issues:
"1a) Whether the plaintiff has acquired the right of easement to throw and passing of his daily routine water and rainy water from the parnala and drain existed in the southern wall of the plaintiff by way of prescription? OPP
2) Whether the defendant has closed down the drain of the room of the plaintiff situated on ground floor of the house of the plaintiff by making illegal construction in the piece of land thereby causing the blockage and flow of water, if so to what effect? OPP"
On appreciation of evidence, the trial Court dismissed the suit vide judgment and decree dated 08.09.2005 holding that the plaintiff has failed to prove his case.
Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-appellant filed an appeal before the first Singh Rattan Pal 2013.08.01 16:25 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2584 of 2007 (O&M) 6 appellate Court, which dismissed the appeal vide its judgment and decree dated 12.04.2007 while affirming the findings of the trial Court on all the issues except issue No.6 holding that the suit property marked as 'ABCD' is a part and parcel of the residential house of the defendant which is in existence since very long and on the suit property previously existed Katcha Verandah for tethering cattle but the same was made Pucca later-on and the same was not left for common purpose but is owned and possessed by the defendant-respondent.
It may further be noticed that even though the findings on issue No.6 were reversed in favour of the defendant-respondent, yet the first appellate Court noticed that even the reversal of findings of the trial Court on issue No.6 have no bearing on the fate of the suit, and hence the appeal was dismissed.
Feeling aggrieved from the judgment and decree of the lower appellate Court, the appellant has come to this Court by filing the instant appeal.
Learned counsel for the appellant has submitted that the following substantial questions of law arise for consideration of this Court:
"(i) Whether in the absence of setting up even a prima facie case to establish that he has any right over the suit land marked as ABCD, respondent/defendant can be allowed to raise construction thereon especially when the windows, ventilators and parnalas which exist in the southern wall of the house of the Singh Rattan Pal 2013.08.01 16:25 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2584 of 2007 (O&M) 7 appellant/plaintiff for the last more than 100 years opens in the said suit land marked as ABCD?
(ii) Whether without there being any evidence
available on record, the learned lower
appellate Court committed a serious illegality in reversing the finding of the learned trial Court on issue No.6 i.e. as to whether the respondent/defendant is owner in possession of the suit property marked as ABCD?
(iii) Whether mere possession over a piece of land denotes the title of the person in possession even if he is alleged to be living there since long, as has been illegally held by the learned appellate Court?
(iv) Whether in view of the admission of the respondent/defendant to the effect that he allowed the appellant/plaintiff to open two windows and two ventilators in the southern wall which immediately abuts the suit land marked as ABCD, the relief of permanent injunction ought to have been decreed in favour of the appellant/plaintiff?
(v) Whether the findings recorded in the impugned judgments and decrees passed by both the courts below are based upon misreading, misconstruing and misinterpreting the oral as well as documentary evidence brought on record by the appellant/plaintiff?"
In support of the case, learned counsel for the appellant has vehemently argued that the findings of the lower appellate Court on Singh Rattan Pal 2013.08.01 16:25 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2584 of 2007 (O&M) 8 issue No.6 deserve to be set aside as there is not an iota of evidence to hold that the land in dispute marked as 'ABCD' in the site plan is owned and possessed by the respondent.
However, as pointed out by the learned first Appellate Court, findings on issue No.6 have no bearing on the fate of the suit as a concurrent finding has been recorded by both the courts below to the effect that the appellant has failed to prove his case to the effect that he has any right as claimed.
Faced with this situation, learned counsel for the appellant has vehemently argued that two windows, two ventilators and five parnalas of his house open towards the suit land marked as 'ABCD' and in fact there is respondent's own admission in this regard and thus, existence of the windows, ventilators and parnalas is duly proved. Moreover, the Local Commissioner PW-5 has also supported the case of the appellant with regard to existence of windows, ventilators and parnalas in the southern wall of his house and thus, it stands clearly proved that on account of using windows, ventilators and parnalas, which exist in the southern wall of the house of the appellant since time immemorial, the appellant has acquired right of easement by way of prescription; whereas the respondent has failed to prove on record his title over the said land, and in this view of the matter, substantial questions of law, as raised in the grounds of appeal, do arise for consideration of this Court.
Singh Rattan Pal 2013.08.01 16:25 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2584 of 2007 (O&M) 9
I have heard learned counsel for the parties and perused the judgments and decrees of both the courts below as well as the record with the help of counsel for the parties.
The argument raised on behalf of the appellant is without any merit. The right of ownership and the right of easement are two different things. The right of ownership is the right to hold, use and enjoy the land or things to the exclusion of everyone; whereas the right of easement is a right into or over the property of another person. It is a settled proposition of law that where one is claimed, the other does not arise.
In the present case, the appellant is claiming co-ownership of land in question and in the alternative right of easement, which cannot go together. To establish the easementary right by way of prescription, one must prove that he was exercising the right on the property treating it as someone else's property. This is not the case of the appellant herein, as it is his pleaded case that the land in dispute marked as 'ABCD' was left for common purposes by the owners of the houses abutting the suit land. There is nothing on record to prove the said assertion on behalf of the appellant. Neither any documentary evidence was produced nor any witness stepped into witness box. Not only this, the courts below have also pointed out that the appellant in his site plan has shown the land ABCD as vacant piece of land whereas the Local Commissioner in his report has submitted that there Singh Rattan Pal 2013.08.01 16:25 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2584 of 2007 (O&M) 10 is boundary wall and an Iron Gate is also attached on the land towards Gali Share Aam. Thus, the appellant has no case.
Thus, no substantial question of law, as raised, arises in this appeal.
Dismissed.
(RAKESH KUMAR GARG) JUDGE July 30, 2013 rps Singh Rattan Pal 2013.08.01 16:25 I attest to the accuracy and integrity of this document High Court, Chandigarh