Himachal Pradesh High Court
Surjan Devi And Others vs Kehar Singh on 29 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 239 of 2005
Reserved on: November 21, 2016
Decided on: November 29, 2016
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Surjan Devi and others .........Appellants
Versus
Kehar Singh ....Respondent
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting?1
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of
For the appellants Mr. N.K. Thakur, Senior Advocate with
Mr. Divya Raj Singh, Advocate.
For the respondent: Mr. Tara Singh Chauhan, Advocate.
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rt
Sandeep Sharma, Judge:
Instant regular second appeal filed under Section 100 CPC is directed against judgment and decree dated 21.2.2005 passed by the learned Additional District Judge, Una, HP, in Civil Appeal No. 95 of 2002, reversing the judgment and decree dated 31.8.2002 passed by the learned Senior Sub Judge, Una in Civil Suit No. 127 of 1992, whereby suit for permanent injunction having been filed by the appellants-plaintiffs (hereinafter, 'plaintiffs') was decreed restraining respondent-defendant, (herein after, 'defendant') from raising any construction and causing any obstruction in the user of the passage marked with letters ABCD as shown in the site plan Ext. PW-3/A. 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 22. Briefly stated the facts as emerge from the record are that the plaintiffs filed a suit for permanent prohibitory injunction stating therein that the land comprising Khasra No. .
4825 Khewat No. 118 Khatauni No. 291 situate in village Palkwah Tehsil and District Una is owned and possessed by the plaintiffs and their Abadi is existing thereon. Land comprising Khasra No. 4826 is owned and possessed by the defendant. There is a passage shown as ABCD in the site plan of to the West through this land, for the ingress and egress of the plaintiffs for the last about 40 years to the main Palkwah-
Haroli rt PWD road continuously without any interruption as easementary right of necessity and prescription. There was no other path available to the plaintiffs. The defendant was threatening to raise construction over the path in order to obstruct the passage of plaintiffs to their Abadi and was not stopping construction despite request, as such predecessor-in-
interest of the plaintiffs was constrained to file suit.
3. Defendant, by way of written statement, refuted the claim put forth by the plaintiffs/predecessor-in-interest of the plaintiffs on the ground of locus standi, maintainability and res judicata. Defendant further averred that he has constructed his Abadi on Khara No. 4826, which is situated abutting to the PWD Pakka Road. Defendant further averred that there is foot path (Pagdandi) on Northern boundary of Khasra No. 4824 to 4826, though which plaintiff used to ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 3 approach his Abadi situated in Khasra No. 4825. It is further averred that in the consolidation operation said Pagdandi was not shown in Northern boundary of Khasra No. 4824 to 4826, .
which necessitated the filing of the case by the plaintiff against the defendant before Director Consolidation. Director Consolidation accordingly ordered incorporation of said footpath on Northern boundary of Khasra Nos. 4826, 4825 and 4824. There is no such passage as shown in the site plan.
of Defendant further alleged that question of using land denoted by letters ABCD for ingress and egress by the family of plaintiff rt does not arise at all and there is no gate at all as shown in the site plan.
4. Replication was filed. Plaintiffs reasserted their claim as put forth in the plaint. However, he denied all the submissions having been made in the written statement. On the basis of pleadings, learned trial Court settled following issues on 22.10.1993 and 26.2.2001:
"1. Whether the plaintiffs are entitled to the relief of permanent injunction restraining the defendant from raising any construction in the passage marked with letters ABCD shown red in colour in the site plan as alleged? OPP 1A. Whether the plaintiff has acquired right of easement by way of prescription of the passage in dispute as alleged? OPP 1B. Whether the plaintiff has acquired right to easement by way of necessity to use the passage in dispute as alleged? OPP
2. Whether this court has no jurisdiction to try this suit? OPD
3. Whether the suit is bad by the principle of resjudicata as alleged? OPD ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 4
4. Whether the suit is not maintainable and plaintiff has no locus standi to file this suit? OPD
5. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD
6. Relief."
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5. Subsequently, vide judgment and decree dated 31.8.2002, learned trial Court decreed the suit of the plaintiff for permanent injunction restraining the defendant from raising any construction and causing any obstruction in the use of passage marked by letters ABCD as reflected in the site of plan Ext. PW-3/A, being part of Khasra No. 4826 for the ingress and egress to residential Abadi of the plaintiff(s), rt situated in Khasra No. 4825.
6. Defendant being aggrieved by the aforesaid judgment and decree, approached learned Additional District Judge, Una by way of filing appeal. Learned Additional District Judge, Una vide judgment and decree dated 21.2.2005 accepted the appeal preferred by defendant and set aside the judgment and decree passed by learned trial Court, as a result of which suit filed by the plaintiff was dismissed. In the aforesaid background, plaintiffs approached this Court by way of present regular second appeal praying therein for restoring the judgment and decree passed by learned trial Court after setting aside judgment and decree passed by the learned Additional District Judge, Una.
7. Present regular second appeal was admitted on 27.5.2005, on the following substantial questions of law:
::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 5"1. Whether the learned first Appellate Court reversed the findings of the learned trial court by misreading of the evidence on record and on conjectures?
2. Whether the findings of the learned first Appellate Court reversing the findings of the .
learned trial court on the question of easement of necessity, are dehors the evidence on record?"
8. Mr. N.K. Thakur, Senior Advocate duly assisted by Mr. Divya Raj Singh, Advocate, vehemently argued that the judgment and decree passed by learned appellate Court is not of sustainable in the eyes of law as the same is not based on correct appreciation of evidence adduced on record by the rt parties and as such same deserve to be set aside. While referring to the judgment passed by the first appellate Court, Mr. Thakur strenuously argued that the Court below has misread and misconstrued the evidence, as a result of which, great prejudice has been caused to the plaintiffs, who successfully proved on record that plaintiff and his family members have been using this passage over Khasra No. 4825 for the last 40 years continuously. Mr. Thakur, with a view to substantiate his argument that existence of Abadi of plaintiff over land in question was duly admitted by the defendant and his witnesses, invited the attention of this Court to the statement having been made by DW-2 Sat Pal, who specifically admitted the location of the house of the plaintiff as per site plan and also existence of passage. He also stated that it has also come in the evidence of the parties that the plaintiffs have ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 6 fixed main gate which open towards land in dispute and same is being used as a passage since the time of existence of Abadis. Mr. Thakur further stated that finding of the learned .
first appellate Court to the effect that plaintiffs have not stated the period of use of passage, is highly technical and relief claimed by the plaintiffs could not be denied solely on the aforesaid omission on the part of the plaintiff because other evidence available on record clearly suggests that land in of dispute is being used as passage without any interruption and objection and learned trial Court below rightly came to the rt conclusion that plaintiff acquired right of easement by prescription. While refuting the findings having been returned by the first appellate Court, that plaintiffs failed to substantiate the ingredients of easement by prescription, Mr. Thakur, forcefully contended that it stands duly proved on record that plaintiffs have been enjoying right of passage, which is open, peaceful and there has never been any objection/ interruption prior to filing of suit, which was sufficient to prove that the plaintiffs have acquired right of easement by prescription. While referring to the statement having been made by the defendant, Mr. Thakur further stated that the defendant himself has stated that towards North of the house and in between the house of Kewal Krishan, there is a Pagdandi but if his statement is carefully and minutely examined, it suggests that it was sufficient to conclude that ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 7 there exists passage as claimed by the plaintiffs and not 'Pagdandi' as suggested by the defendant. While concluding his arguments, Mr. Thakur, strenuously argued that it stands .
duly proved on record that there is no other passage except the disputed land for ingress and egress to the house of the plaintiffs and as such plaintiffs have right of easement by necessity but the first appellate Court without there being any plausible reason set aside the findings of the learned trial of Court and as such judgment and decree passed by first appellate Court deserve to be set aside. In the aforesaid rt background, Mr. Thakur prayed that judgment and decree passed by learned trial Court be restored after setting aside the judgment and decree passed by the first appellate Court.
9. Mr. Tara Singh Chauhan, Advocate, appearing for the respondent supported the judgment and decree passed by the learned first appellate Court. Mr. Chauhan while referring to the judgment passed by the learned first appellate Court vehemently argued that the same is based on correct appreciation of evidence available on record and as such there is no scope of interference by this Court and present appeal deserves to be dismissed being devoid of any merits. Mr. Chauhan while inviting attention of this Court to the judgment passed by the first appellate Court, strenuously argued that the plaintiffs miserably failed to lead cogent and convincing evidence on record to establish his right of easement by ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 8 prescription because none of the plaintiffs' witnesses stated anything with regard to the period of usage of path over the land denoted in the site plan by letters ABCD. With a view to .
substantiate his aforesaid argument, he invited attention of the Court to the statement having been made by the plaintiff himself, wherein he admitted that there was a Pagdandi which after consolidation was not shown in the record, as a result of which he moved an application before the Director of of Consolidation, who directed the revenue authorities to incorporate the same in the record. Mr. Chauhan while rt refuting the contentions having been made by Mr. N.K. Thakur, learned Senior Advocate, that plaintiff and his family members have been using this land for the last forty years, forcefully contended that there is no evidence led on record by the plaintiff specifically stating therein with regard to dimensions of the passage claimed by him and as such there is no illegality or infirmity in the judgment passed by the Court below. He further argued that the learned trial Court miserably failed to appreciate that there was no sufficient evidence to prove easement by way of prescription and by way of necessity in the plaint. Similarly, no oral evidence was led on record suggestive of the fact that plaintiffs have acquired right of easement by way of prescription and by way of necessity and as such the judgment passed by the trial Court was rightly set aside by the first appellate Court.
::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 910. I have heard the learned counsel for the parties and gone through the record carefully.
11. During the proceedings of the case, this Court had an .
occasion to peruse the pleadings as well as evidence available on record, perusal whereof suggests that there is no dispute with regard to existence of Pagdandi on the land in dispute.
Defendant in his written statement specifically stated that Khasra No. 4826 abutting to Pakka road is owned and of possessed by him, wherein he has constructed his Abadi since long. He has further stated that there is a foot path /Pagdandi rt on the Northern boundary of Khasra No. 4826/4825/4824, through which plaintiffs approach their Abadi situated on Khasra No. 4825. Aforesaid admission having been made by the defendant proves the case of the plaintiffs to the extent that he has his Abadi over Khasra No. 4825 as reflected in green colour in the site plan (Ext. PW-3/A). Similarly, there is no dispute with regard to Abadi of defendant over Khasra No. 4826 to the West of Abadi of the plaintiffs, as reflected in the site plan. It also emerges from the pleadings i.e. written statement that during consolidation proceedings in the village of parties, footpath on the northern boundary of Khasra No. 4826/4825/4824 was not shown/reflected by the Consolidation staff in the revenue record, as a result of which, plaintiff approached Director Consolidation, who ordered to incorporate footpath on Northern boundary of Khasra No. ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 10 4826, 4825 and 4824. Perusal of Ext. PW-3/A as well as Ext.
D-1 (Aks Shajra Kishtwar) suggests that between house of Kewal Krishan and house of Kehar Singh, there exists a .
passage which leads upto house/courtyard of present plaintiffs over Khasra No. 4825, which is just adjacent to the house of defendant and there appears to be no other path to the house of plaintiffs situated on Khasra No. 4825. Moreover, there are no pleadings in the written statement with regard to of alternative path, if any, to the house of the plaintiffs, save and except the Pagdandi as admitted by both the parties, in their rt pleadings. Similarly, factum of existence of Abadi over Khasra No. 4825 belonging to the plaintiffs stands proved on record by way of Ext. D-4, Ext. PW-3/A, Ext. P-1 and Ext. P-2, wherein admittedly Khasra No. 8015/5022 (old) 4825 (new) has been shown to be Gair Mumkin Abadi. Similarly, perusal of Ext. D-3 also suggests that defendant namely Kehar Singh has his Abadi over Khasra No. 8015/5022 (old) 4826 (new). Plaintiff, in para-3 of the plaint has claimed that since coming into existence of Abadi i.e. 40 years back, he and his family members have been using passage as denoted by letters ABCD in the site plan, continuously, uninterruptedly as easementary right by necessity and prescription without any hindrance and there is no other path for ingress and egress of the plaintiffs.
Defendant, though has admitted the factum of existence of footpath on the Northern boundary of Khasra No. 4826, 4825 ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 11 and 4824 but has denied the existence of passage over Khasra No. 4826 as reflected in the site plan. Admittedly, there is no denial with regard to specific assertion having been made by .
the plaintiff that there is no other passage for ingress and egress of the plaintiffs to their Abadi.
12. Similarly, perusal of Ext. PW-3/A i.e. site plan, corroborates the version of the plaintiffs in the plaint with regard to location of house of plaintiffs over Khasra no. 4825 of and that of the defendant over Khasra No. 4826. PW-1 Manohar Singh specifically deposed before the Court that rt Abadi is situated in between the house of defendant and house of Kewal Krishan towards North. He stated that they have their Abadi on Khasra No. 4825 and on Khasra No. 4826, there is Abadi of the defendant and there is a passage as denoted in site plan Ext. PW-3/A by letters ABCD. He also stated that there is no other path for ingress and egress. True it is that there is nothing in his statement with regard to usage of passage for the last more than twenty years, as such, plaintiff has no right of easement by prescription. Admittedly, there is no evidence worth the name on record led by the plaintiffs suggestive of the fact that the passage as denoted by letters ABCD was being used by them for the last twenty years, which was a condition precedent to claim right of easement by prescription. But if the deposition made by the plaintiff is read in its entirety, he has further stated that there is passage to ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 12 the West of land bearing Khasra no. 4826. He has further stated that apart from above, there is no passage to his house.
Similarly, perusal of statement having been made by the .
plaintiff suggests that learned first appellate Court rightly concluded that there is no deposition qua alleged interruption by the defendant as far as passage is concerned. Though the plaintiff in his plaint specifically stated that defendant is threatening to raise construction over the suit land and in this of regard, he has collected material on the land but it is correct that there is no deposition on oath with regard to aforesaid rt assertion having been made in the plaint. But, admittedly, there is denial by the defendant as far as right of the plaintiff to use the passage claimed by them, as depicted in site plan, which could be sufficient to conclude that interruption was being caused by the defendant.
13. Similarly, this Court after perusing the evidence led on record by the plaintiffs finds that there are specific pleadings on record qua easementary rights of the plaintiffs. Plaintiffs have specifically stated that they are enjoying this passage for the ingress and egress and it has been coming since the existence of Abadi continuously, interruptedly as easementary right by necessity and prescription without any hindrance and there is no other path for ingress and egress available to the plaintiffs. There is no specific denial by the defendant in the written statement to the aforesaid averment, whereas, while ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 13 denying aforesaid assertion having been made by the plaintiffs, defendant has only stated that question of use of passage for ingress and egress by the plaintiffs does not arise at all. At the .
cost of repetition, it may be stated that though the learned first appellate Court while scrutinizing evidence led on record rightly came to the conclusion that there is no deposition with regard to alleged interruption by the defendant, by the plaintiff, but the impugned judgment and decree nowhere of suggests with regard to discussion qua the specific plea having been taken in the plaint by the plaintiffs with regard to rt easementary rights. Rather the court below came to the conclusion that the plaintiff failed to prove the ingredients of easement by prescription in respect of area denoted by letters, ABCD in the site plan, Ext. PW-3/A and solely on the ground that plaintiffs miserably failed to prove the interruption allegedly caused by the defendant as far as usage of passage is concerned, rejected the plea of easement taken by the plaintiffs.
14. True, it is that right of easement by prescription and necessity is required to be specifically proved by leading cogent and convincing evidence but certainly the learned first appellate Court could not brush aside specific pleadings made by the plaintiffs, on the ground that the plaintiffs failed to prove interruption of passage allegedly caused by the defendant. It is not understood, how the learned first appellate ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 14 Court came to the conclusion that there are no pleadings with regard to easement and acquiring of right by way of easement because, admittedly, there is specific assertion in the plaint .
with regard to actual, open and peaceful enjoyment of right of easement by the plaintiffs without any interruption.
Admittedly, plaintiffs have nowhere stated anything with regard to enjoyment of passage as easementary right for twenty years but if plaint as well as statements made before of the Court are read in their entirety, it can be safely inferred that Abadi over the land is situated over Khasra No. 4825 for rt the last 40 years, which was sufficient for the court below to conclude that plaintiffs have been using passage claimed by them since coming into existence of Abadi over the said land, which has not been denied by the defendant.
15. PW-2 Gokal Chand has also supported the case of PW-1 Manohar by stating that path is situated adjoining to house of defendant and that of Kehar Singh towards North. DW-2 Sat Pal specifically stated that vacant land of defendant is situated on North side of the house of plaintiff, which proves the genuineness and correctness of plan Ext. PW-3/A, whereupon plaintiffs claims their right of passage. Though DW-1 Kehar Singh in his statement before the Court stated that no passage exists towards North side of house but he in his written statement as well as cross-examination admitted the existence of Pagdandi /footpath over the land situated ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 15 between house of Kehar Singh and shop of Kewal Krishan, which is strictly in consonance with the Ext. PW-3/A (site plan). Documentary evidence available on record i.e. Ext. P-1, .
copy of Jamabandi 1985-86 and Ext. D-3, copy of Missal Hakiat, suggests that plaintiff and defendant were recorded in possession of aforesaid land i.e. Gair Mumkin Abadi measuring 1 Kanal 2 Marla since the land was partitioned during consolidation. It is also undisputed that during of consolidation, passage leading to the house of plaintiff was not recorded in the revenue record, which was later on rt incorporated in the revenue record on the direction of the Director of Consolidation. Since the Abadi of the plaintiff is situated between the land of defendant as well as Kewal Krishan and as per own admission of the defendant, there exists a Pagdandi, definitely plaintiff has right of easement by necessity. Admission on the part of defendant with regard to existence of footpath /Pagdandi to the land of the plaintiff from the Northern side of Khasra No. 4826 owned by him, certainly proves the case of the plaintiff that there exists path over said land denoted by letters, ABCD. PW-1 Manohar Singh, one of the plaintiff has specifically stated that there is Abadi of plaintiff over the suit land and he has no alternative path for ingress and egress to his land and, interestingly, there is no cross-examination of aforesaid plaintiff on this statement having been made by him. PW-2 Jeet Singh also corroborated ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 16 the version put forth by the plaintiffs and PW-1 Manohar Singh with regard to existence of house of plaintiffs over the suit land as well as usage of path without any interruption and .
objection.
16. Consequently, in view of detailed discussion herein above, this court, after careful examination of evidence on record, has no hesitation to conclude that the learned first appellate Court while accepting the appeal of the defendant of misread the evidence led on record and wrongly reversed the findings of the learned trial Court on the question of easement rt by necessity. As far as easementary right of the plaintiffs by prescription, first appellate Court may be right in concluding that the plaintiffs were not able to prove the ingredients of easement by way of prescription but in view of specific pleadings as well as depositions having been made by the plaintiff that he has no other alternative passage to his Abadi, learned first appellate Court wrongly reversed the findings of the court learned trial Court as far as easement by way of necessity is concerned.
17. At the cost of repetition, it may be again stated that neither there is any pleading by the defendant about availability of alternative path /passage to the plaintiff nor there is any rebuttal to the candid statement having been made by the plaintiff in his examination-in-chief before the Court.
::: Downloaded on - 15/04/2017 21:38:24 :::HCHP 1718. Apart from above, as stands duly proved on record that path was incorporated by the Director of Consolidation, over which plaintiffs have exclusive rights. Plaintiff has successfully .
proved on record that there is no alternative path to his house save and except the land denoted by letters ABCD and as such, he is entitled to use of same by way of right of easement by necessity.
19. Substantial questions of law are answered accordingly.
of
20. Consequently, in view of aforesaid discussion above, the present appeal is allowed and judgment and decree dated rt 21.2.2005 passed by the learned Additional District Judge, Una, HP, in Civil Appeal No. 95 of 2002 is set aside. Judgment and decree dated 31.8.2002 passed by the learned Senior Sub Judge, Una in Civil Suit No. 127 of 1992, is restored. Suit of the plaintiffs is decreed.
21. Pending applications, if any, are disposed of. Interim directions, if any, are also vacated.
(Sandeep Sharma) Judge November 29, 2016 (Vikrant) ::: Downloaded on - 15/04/2017 21:38:24 :::HCHP