Punjab-Haryana High Court
Deva Karan Singh vs Mohan Lal And Anr. on 12 November, 2003
Equivalent citations: (2004)137PLR537
JUDGMENT G.S. Singhvi, J.
1. This appeal is directed against judgment and decrees dated 23.7.1980 and 6.8.1980 passed by Sub Judge, 1st Class, Narnaul (hereinafter described as the 'Trial Court') and District Judge, Narnaul (hereinafter described as the 'Appellate Court'), respectively vide which the Trial Court dismissed the suit for permanent injunction filed by the appellant and the Appellate Court dismissed the appeal filed by him.
2. A perusal of the record shows that the appellant filed a suit for permanent injunction against the respondents restraining them from raising any construction in the gali situated towards the western side of his house and from closing the spouts, parnalas and ventilators etc. in the western wall of his house. He also prayed that the defendants (respondents herein) may be restrained from interfering with his right of user of gali in dispute. He averred that he is owner of the house marked as DEFG in the plan attached with the plaint situated in Mohalla Nai Sarai, Narnaul: that one spot and one ventilation on the ground floor of the house open towards west from the last 50 years that the spouts and ventilators on the first floor are in existence for the last 15 years: that he had constructed the ventilators in the first floor of the building after obtaining permission of Municipal Committee of Narnaul: that the water of the house has been flowing from the other spouts in the gali abutting his house: that the defendants are raising construction towards the western side of his house and are attempting to close the gali abutting the western wall of his house.
3. In their written statement, the defendants-respondent denied existence of gali towards western side of the house of the plaintiff appellant. They also denied the existence of any spout or ventilator on the ground or first floor of the house of the appellant. They further pleaded that the plaintiff-appellant had opened the ventilators in his house only about two-three years ago: that no water was flowing from the house of the plaintiff-appellant towards the western side; that the disputed gali belonged to them: slope of the plaintiff's house was towards east and natural flow of his house was on that side.
4. The parties went to the trial on the following issues:-
(1) Whether the site shown as red in the site plan is a gali in between the houses of both sides, If so, to what effect? OPP (2) Whether surroundings of the house of the plaintiff as detailed in the site plan have been correctly incorporated in the plaint and if so, to what effect? OPP (3) Whether the plaintiff has no locus standi to file the suit? OPD (4) Whether the suit is not maintainable in the present form? OPD (5) Whether the defendants are entitled for special costs in case of disposal of the suit? OPD (6) Relief.
5. The learned trial Court relied on inspection note dated 24.5.1978 recorded by his predecessor and held that there existed spouts and ventilators on the western wall of the plaintiff's house: that there exists gali on the western side of the house and that the defendants did not have any right over it. He, however, declined relief to the plaintiff by recording the following reasons;-
"The fact, however, remains that there is no independent issue about the plaintiff having acquired the right of easement to pass his water in the gali in dispute and to the enjoyment of light and air through the ventilators and counsel for the plaintiff, therefore, stated that the was not required to produce evidence to that effect. However, the legal position is well settled that the decision of a case, cannot be based on grounds outside the plea of the parties, and that it is the case pleaded, which has to be proved. In this connection, observations made in A.I.R. 1977 Supreme Court 890, and A.I.R, 1979 Karnataka 52 can be read with advantage. As the plaintiffs has claimed right to easement, the law remains well settled that there can be no question of acquiring easement of light and air or to pass water over the property, which is claimed to be joint, because right of easement and a natural right are distinct rights, and it is well settled that where one is claimed, the other does not arise. Reference in this connection, can also be made to the observations made in A.I.R. 1920 Patna 195. The plaintiff, who appeared in rebuttal, and made a statement on oath on 16.5.1980, has stated in his cross-examination, that he has a share in the disputed gali thereby necessarily implying that he claims the gali in dispute to be joint of the parties, and as such, the plaintiff cannot be said to have acquired right to easement in respect of the gali in dispute. Moreover, there is no evidence, whatsoever, on the file led by the plaintiff to prove his having acquired a right of easement, and on the basis of natural right, i.e., on the basis of the gali being joint, the suit of the plaintiff cannot be decreed, because the plaintiff has not raised any plea of the gali being joint of the parties."
6. The plaintiff-appellant challenged the judgment of the trial Court by filing an appeal in the Appellate Court. Respondent No. 1 filed cross objections. The learned Appellate Court reversed the finding recorded by the Trial Court on issue Nos. 1, 2 and 4 and dismissed the appeal and allowed the cross objections filed by respondent No. 1. Paragraphs 11 to 14 of the judgment of the Appellate Court, which contain detailed reasons for reversing the finding recorded by the trial court, read as under:-
"11. Before dealing with the question of law involved, it would be convenient to state the factual position for the sake of clarity. Substance of the plaint as well as written statement has been set out in the earlier part of this order. Learned counsel for the plaintiff appellant emphasised the significance of the averments made in the para No. 1 of the plaint that on the western side of the plaintiff's house there existed a passage. Learned counsel for the defendants/respondents, on the other hand, contended that a careful reading of the whole of the plaint shows that it was either in the context of giving the boundaries that there was mention of right of passage or the plea taken by the plaintiff was limited only to the extent that he had a right to have openings on the western wall by way of out-let, window and ventilator including discharging of water but not of right of passage as such. According to the learned counsel, therefore, it was only a statement in furtherance of the plea that the plaintiff had acquired a right of easement and nowhere in the plaint was a case set up that there existed a passage which belonged to the plaintiff along with others or that the alleged passage had been used for ingress and egress to his property. I have very carefully examined the plaint and I find force in the contentions of learned counsel for the defendants-respondents. In para 1 of the plaint, while describing the boundaries of the plaintiff's property the western boundary was described as a "right of passage" and further west compound of Mangoriwala. In para 2 facts were alleged claiming right of easement of various openings on the western wall. Para 3 related to alleged estopple on the part of the defendants in the context of the alleged right of easement. In para 4 facts were alleged that the defendant had tried to obstruct the plaintiff's openings by making construction of what was described as a retaining wall of the plaintiff. To the same effect were the averments made in para No. 5. The remaining paras related to formal statement disclosing cause of action, jurisdiction and relief.
12. In the site plan Ex.PW1/A filed with the plaint, the alleged passage was described as "right of Gali". I asked learned counsel for the plaintiff-appellant to explain as to what was mean by right of Gali if the intention was that there existed a passage on the western side of plaintiff's house. Learned counsel could not offer any convincing explanation. On the other hand, the expression used by the plaintiff in the site plan Ex.PW1/A stands explained in the light of the explanation given by learned counsel for the defendant-respondents that there was mention of passage only in the context of the alleged right of easement pleaded by the plaintiff. Instead of describing the western boundary as a passage, therefore, it was described as right of passage, In my considered opinion, therefore, the plaintiff nowhere laid a case of claiming joint ownership of the legal passage. This conclusion is further supported from the fact that a plea of acquiring easement is necessarily inconsistent with the plea that there existed a joint passage touching the western boundary of the plaintiff's house. It is evident that a person cannot claim ownership of the adjoining property and yet claim easement over it. Necessary easement is right which the owner of the dominant heritage claims over the property of another which is called the survivant heritage. No doubt, there is no bar in a party setting up a case in the alternative and a totally inconsistent case an also be set up in the alternative but a careful perusal of the plaint shows that no such case in the alternative was set up by the plaintiff.
13. To conclude the discussion so far it is held that the plaint does not contain the plea that there was a common passage in which the plaintiff claimed right of ownership.
14. It is settled law that no amount of evidence can be looked into upon a plea which was not put forward. In this connection reference may be made to the following authorities:-
(i) Rameshwar v. Smt. Nand Kaur etc, 1981 C.L.J. (Civil) 395;
(ii) San Dass v. Lachhman Dass alia Lacchu Ram etc., 1981 C.L.J. (Civil) 387;
(iii) Meia Singh v. Karam Singh, 1981 C.L.J. (Civil) 220 Division Bench (Hon'ble the Chief Justice, Mr. Justice S.S. Sandhawalia and Hon'ble Mr. Justice D.S. Tewatia); and
(iv) Rai Singh v. Balwant Singh, (1981)83 P.L.R. 257 = 1981 C.L.J. (Civil) 155 (Hon'ble Mr. Justice Sukhdev Singh Kang)"
7. The Appellate Court confirmed the finding of the Trial Court that in the absence of any specific plea, the plaintiff-appellant cannot succeed on the ground that the site in dispute is a common passage between the properties of the parties. The learned Appellate Court also drew adverse inference against the plaintiff-appellant by observing that he had failed to produce the sale deed which would have shown the status of the property on the date of purchase and may not have supported his claim.
8. I have heard learned counsel for the parties. In my opinion, the appeal is liable to be dismissed because the appellant has not complied with the provisions of Section 100 of the Code of Civil Procedure as interpreted by the Supreme Court in Kulwant Kaur and Ors. v. Gurdial Singh Mann (Dead) by LRs and Ors., (2001-2)128 P.L.R. 492 (S.C.) inasmuch as, the appellant has not formulated the question of law which according to him, arises for consideration by this Court.
9. Even on merits, I am satisfied that the concurrent finding recorded by the Trial Court and the Appellate Court that the appellant had failed to prove the existence of a common passage of gali between his house and construction raised by the respondent does not suffer from any legal infirmity and as he had failed to set up a case involving right of easement, no interference is called for in this appeal.
10. Hence, the appeal is dismissed. However, it is made clear that the finding recorded by the Courts below in the suit for injunction filed by the plaintiff-appellant is not prejudicially affect any other litigation filed by him for determination of his right over the disputed gali.