Himachal Pradesh High Court
Chhering Dorje (Deceased) Through Lrs ... vs Dawa Gialchhan & Anr on 16 July, 2018
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.306 of 2007.
Reserved on: 15.6.2018.
Date of Decision : 16th July, 2018.
.
Chhering Dorje (Deceased) through LRs Smt. Padma Devi and ors.
...Appellants.
Versus Dawa Gialchhan & anr. ...Respondents.
Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1Yes.
For the appellants : Mr. K.D. Sood, Senior Advocate with Mr. Shubham Sood, Advocate.
For the respondents : Mr. B.C. Negi, Senior Advocate with Mr. Pranay Pratap Singh, Advocate.
Chander Bhusan Barowalia, Judge.
By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned District Judge, Kinnaur Civil Division at Rampur camp at Reckong Peo, in Civil Appeal No.16 of 2006, dated 13.6.2007, vide which, the learned lower Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Senior Division), District Kinnaur at Reckong Peo, in Civil Suit No.26-1 of 2004, dated 31.3.2006.
2. Material facts necessary for adjudication of this Regular Second Appeal are that plaintiffs/respondents (hereinafter referred to as 'plaintiffs') maintained a suit for declaration against the defendants/appellants (hereinafter referred to as 'defendants') alleging 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 17/07/2018 23:02:00 :::HCHP 2therein that they (plaintiffs) having their orchard on the land comprised in Khasra No.50, 51, 84, 85 in Up Mohal Danmochhe, Tehsil Pooh, District Kinnaur (H.P) (hereinafter referred to as 'suit land') and land of .
the defendant Chhering Dorje, is situated over Khasra No.136. There is a water channel (Kuhal) on Khasra No.132, in the same Mohal. The plaintiffs have been exercising right of easement by way of going to their respective fields and houses alongwith the edges (mainds) of Khasra No.132 for the last more than 30 years peacefully, openly, continuously, without any interruption and have also been transporting their agricultural products such as apple fruit etc. to the market through the same path. The defendants obstructed the path in the month of October, 2003 without assigning any reason.
3. Defendants have contested the suit of the plaintiffs and raising preliminary objections qua cause of action, limitation, estoppel and valuation. On merits, defendants have alleged that plaintiffs never exercised the alleged customary right of easement for going to their fields and houses. The defendants tried to make a path forcibly in the year 2003, bearing Khasra No.85, 87, 132 and 136 and when the defendants requested them not to do so, false report was lodged by the plaintiffs to police. The plaintiffs have encroached upon the Government land comprised in Khasra No.49, 82 & 86 and planted fruit trees and have defaced and dismantled the path.
::: Downloaded on - 17/07/2018 23:02:00 :::HCHP 34. From the pleadings of parties, the learned trial Court framed following issues :
"1.
.
Whether the plaintiffs have customary rights of easement of way for their fields and houses alongwith mainds (edge) of Kuhal situated in Khasra No.132, as alleged ? OPP
2. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction, as prayed for ? OPP.
3. Whether the plaintiffs are having their path for their fields and houses through the land bearing Khasra Nos.49, 82 and r 86, as alleged ? OPD.
4. Whether the plaintiffs have no cause of action to file the present suit ? OPD.
5. Whether the suit is barred by limitation ?
OPD.
6. Whether the plaintiffs are estopped from filing the present suit by their act and conduct ? OPD.
7. Whether the plaintiff are estopped from filing the present suit by custom prevalent in the area as alleged ? OPD.
8. Whether the suit is bad for non joining of the necessary parties, i.e. State of H.P, if so, its effect? OPD.
9. Whether the suit is not properly valued for purpose of court fee and jurisdiction? OPD.
10. Relief."::: Downloaded on - 17/07/2018 23:02:00 :::HCHP 4
5. The learned trial Court after deciding Issues No.1, 2 in affirmative, Issue No.3 to 9 in negative, decreed the suit.
6. Feeling aggrieved thereby the defendants maintained first .
appeal before the learned District Judge, Kinnaur Civil Division at Rampur Bushahr camp at Reckong Peo, assailing the findings of learned Trial Court being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court affirmed the findings of the learned Court below. Now, the appellants have maintained the present Regular Second Appeal, which was admitted for hearing on 3.5.2010 on the following substantial questions of law:
" 1. Whether the pleadings of the parties the evidence on record have been misconstrued and in the absence of a specific plea of acquisition of easementary right by prescription or by necessity, the plaintiff could be granted the relief of mandatory injunction more particularly when the alleged obstruction was not on the land of the defendant-appellant and in the absence of the owners of the land and the persons who had erected the wall, decree could be passed against the appellant ?
2. Whether in view of the fact that the respondent admitted alternative, path, the decree for mandatory injunction can be passed against the appellant on the alleged custom to carry the agricultural produce on the alleged Kuhal by invoking the custom of passage for agricultural purposes of meend/edges of the filed ?::: Downloaded on - 17/07/2018 23:02:00 :::HCHP 5
3. Whether the judgment and decree of the District Judge is vitiated for non-consideration and non- decision of the application under Order .
18 Rule 18 C.P.C. in the alternative under Order 26 Rule 9 C.P.C read with section 151 C.P.C ?"
7. Learned Senior Counsel appearing on behalf of the appellants has argued that the learned Courts below without appreciating the evidence and documents, which have come on record to its true perspective, decreed the suit of the plaintiffs. He has argued that the findings recorded by the learned Courts below are required to be set aside. He has further argued that the learned lower Appellate Court has not decided the application of the appellant-defendant, under Order 18 Rule 18 of the Code of Civil Procedure and the appeal has been disposed of. On the other hand, learned Senior Counsel for the respondents has argued that no arguments were advanced in the application without arguing the main appeal, so no illegality and infirmity is committed by the learned lower Appellate Court in not deciding the application. In rebuttal, learned Senior Counsel appearing on behalf of the appellants has argued that the pleadings qua easement were not construed properly and the customary right, as claimed is not favaourable to the respondents-plaintiffs.
8. To appreciate the arguments of learned Senior Counsel appearing on behalf of the parties, I have gone through the record in detail.
::: Downloaded on - 17/07/2018 23:02:00 :::HCHP 69. In order to prove its case, PW-1, Dawa Gialchhan, deposed that he has been using the path, on the edges of the water channel in order to go to his orchard and for transporting the apple .
crop. He is using this path for the last more than 30 years. The path in question was closed in the year 2003, by the defendants by constructing a wall, as a result of which, the plaintiffs suffered loss. The water channel is not owned by the defendants, but is of the villagers and there is no loss to the plaintiff to pass through the edges of this Kuhal.
Plaintiff has also made an application, under Section 107 and 150 of the Code of Criminal Procedure, in which, defendants were directed to be of good conduct for one year. In his cross-examination, he has admitted that there is land of Horticulture Department above his land. He has denied that he has dispute with the Horticulture Department about the path. He has further denied that the path to his orchard and houses passes through the nursery of Horticulture Department. The water channel is about three metres in width. He has denied that he has no right to pass through the edges of Kuhal. PW-2, Prittam Chand, Ex-
Pradhan of Gram Panchayat, Pooh, deposed that plaintiffs having their orchard at village Danmochha and they have been transporting the apples, since 1985-86 from the edges of the water channel. This water channel is on Government land and defendants have no right on this land. He has also stated that there is another path through the Government farm, but this path is quite lengthy and is quite steep and it ::: Downloaded on - 17/07/2018 23:02:00 :::HCHP 7 is difficult to transport the apple boxes through that path. In his cross-
examination, he has stated that he cannot say from which path, plaintiffs are transporting their apple boxes. He has not visited the .
orchard of the parties after 1988-89. PW-4, Susheel Sana, deposed that he has seen the passage in question. This passage goes through the edge of the Kuhal, which is owned by the Government. In October, 2005, there was a dispute between the parties regarding this passage and plaintiffs had complained to him that the defendants had blocked their passage, because of which, he had visited the spot. At the spot, he found that defendants had blocked the passage by raising wall. He has asked the defendants not to block the passage, but they did not agree. He has further stated that he is seeing the plaintiffs using this passage for the purpose of transporting their apple boxes etc. He has further deposed that there is no other passage for the plaintiffs to transport their fruits and to go and come out of the orchard. He has further stated that the defendants have still not removed the 'danga' raised by them in the passage in question, because of which, the path of the plaintiffs has been blocked. DW-1, defendant, Chhering Dorje, stated that the plaintiffs have no right to maintain the suit, as they have ancestral old path through the farm of the Horticulture Department.
There is no custom of walking on the edges of Kuhal. The land is sandy and in case, path is made along side the Kuhal, then Kuhal can be damaged. The edges of the Kuhal are used only for water and no other ::: Downloaded on - 17/07/2018 23:02:01 :::HCHP 8 purpose. There is also danger to the branches of the trees, in case, the apple boxes are transported along side the water channel. No other person of the village has used this path. In his cross-examination, he .
has stated that the police and Pradhan have also visited the spot. The passage which, he has shown is near the Horticulture farm. He has denied that in order to pass through Horticulture farm, the plaintiff has go to ascending through a long distance and then again has to walk for about ½ KM through the village, whereas the path in dispute is just adjoining to his orchard. He has admitted that the plaintiffs never tried to walk through his land. DW-2, Gulab Singh, has also stated that the path of the plaintiffs passes through the Government farm, which is being used by them. The plaintiffs have encroached upon the Government land and closed the path. In his cross-examination, he has denied that the plaintiffs are transporting their apple on the edges of Khasra No.132. He has further stated that Kuhal is in his land, but he does not remember the Khasra number. He has denied that no loss is caused to him, in case, the person walks on the edges of the Kuhal.
10. After scrutinizing the entire evidence and documents available on record, the learned lower Appellate Court has passed the following order (s), which reads as under :
"24.8.2006 Present : Sh. B.L. Thakur, Advocate, for the appellants.
Sh. Ram Singh Negi, Advocate, for the respondents.
At this stage, an application under Order 18 Rule 18 C.P.C. has been filed by the Ld. Counsel for the appellants. Time prayed by the Ld. Counsel for the ::: Downloaded on - 17/07/2018 23:02:01 :::HCHP 9 respondents to file reply. Now list the application for reply and consideration Camp at Reckong Peo on 18.10.2006.
Sd/-
District Judge, Kinnaur Rampur Bushahr, camp at Reckong Peo.
.
18.10.2006 Present : Sh. B.L. Thakur, Advocate, for the appellants.
Sh. Gian Singh Negi, Advocate, for the respondents.
Reply to the application under Order 18 Rule 18 CPC has been filed on behalf of the respondents. Time prayed by the learned counsel for the applellants to file rejoinder. Now list the application for rejoinder and consideration on 23.11.2006 at Rampur.
Sd/-
District Judge, Kinnaur Rampur Bushahr, camp at Reckong Peo.
23.11.2006 Present : Sh. B.L. Thakur, Advocate, for the appellants.
r Sh. Ram Singh Negi, Advocate, for the
respondents.
Rejoinder filed. At the request of ld.
Counsel for the respondents, now list the application alongwith main appeal for consideration, on 15.12.2006.
Sd/-
District Judge, Kinnaur Rampur Bushahr, camp at Reckong Peo.
15.12.2006 Present : Sh. B.L. Thakur, Advocate, for the appellants.
Sh. Ram Singh, Advocate, for the respondents.
The Ld. Presiding Officer has been transferred. Now list the case for proper orders on 10.1.2007.
Sd/-
P.A. 10.1.2007 Present: Sh. B.L. Thakur, Advocate, for the appellants.
Sh. Ashok Mehta, Advocate vice counsel for the respondents.
This case is fixed today for proper order. Now to come up for consideration on application under Order 18 Rule 18 CPC and arguments on appeal, on 21.3.2007.::: Downloaded on - 17/07/2018 23:02:01 :::HCHP 10
Sd/-
District Judge, Kinnaur Division Rampur 21.3.2007 Present : Sh. Ashok Kumar, Advocate vice counsel for the appellants.
.
None for the respondent.
As the Ld. P.O. is on leave for today. Now, it be listed for proper order on 30.3.2007.
Sd/-
Reader.
30.3.2007 Present: Sh. Himesh Thakur, Advocate, for the appellants.
None for the respondents.
As the ld. P.O is on leave today. Now it be listed for proper order on 11.4.2007.
Sd/-
Reader.
11.4.2007 Present: Sh. B.L. Thakur, Advocate, for the r appellants.
Sh. Ashok Mehta, Advocate vice Sh. Ram Singh Negi, Advocate for respondents.
The appeal is fixed today for proper order.
Now to come up for arguments at Camp court Reckong Peo, on 20.4.2007. Notice be also issued to ld. Counsel for the respondent for the date fixed.
Sd/-
District Judge, Kinnaur Division Rampur Bushahr, 20.4.2007 Sh. Himesh Thakur, Advocate, for the appellants.
Sh. Ram Singh Negi, Advocate, for the respondents.
Now to come up for arguments, on 16.5.2007 at Reckongpeo.
Sd/-
District Judge, Kinnaur Division Rampur Bushahr 16.5.2007 Present: Sh. B.L. Thakur, ADvoate, for the appellants.
Sh. Ram Singh Negi, Advocate, for the respondents.
Arguments partly heard. Now list the case for further arguments and orders on 13.6.2007 at Reckongpeo.
Sd/-
District Judge, Kinnaur Division Rampur Bushahr ::: Downloaded on - 17/07/2018 23:02:01 :::HCHP 11 13.6.2007 Present: Sh. B.L. Thakur, Advocate, for the appellants.
Sh. Ram Singh Negi, Advocate, for the respondents.
.
Further arguments heard. Vide separate judgment of even date, the appeal is dismissed. The record of the trial court be sent back alongwith a copy of the judgment and the file of this court be consigned to record room.
Sd/-
Announced District Judge, Kinnaur Rampur Bushahr, 13.6.2007 camp at Reckong Peo."
11. Now, while going through the entire judgment passed by the learned lower Appellate Court, it seems that there is no mention with regard to the application, under Order 18 Rule 18 of the Code of Civil Procedure, which was ordered to be heard and disposed of the main appeal, as per the order dated 23.11.2006, meaning thereby, application remained undecided, as the application has not been decided by the learned lower Appellate Court. So, this Court finds that the case is required to be remanded back to the learned lower Appellate Court with a direction to decide the application, under Order 18 Rule 18 of the Code of Civil Procedure, which remained undecided and thereafter disposed of the main appeal. Thus, the findings, as recorded by the learned lower Appellate Court are perverse and required to be set aside. Consequently, substantial questions of law No.1 and 2, are not required to be answered at this stage, as the appeal is only remanded back of substantial question of law No.3, that the judgment and decree of the learned District Judge is vitiated for non-consideration ::: Downloaded on - 17/07/2018 23:02:01 :::HCHP 12 and non-decision of the application, under Order 18 Rule 18 of the Code of Civil Procedure.
12. In view of the above discussion, the appeal of the .
appellants is allowed and the judgment and decree passed by the learned lower Appellate Court is set aside and the case is remanded back to the learned lower Appellate Court, to decide the same afresh, after hearing counsel appearing on behalf of the parties, at the earliest.
Parties through their learned counsel are directed to put in appearance before the learned lower Appellate Court on 6th August, 2018.
Pending application, if any, also stands disposed of. No order as to costs.
(Chander Bhusan Barowalia) th 16 July, 2018 Judge (CS) ::: Downloaded on - 17/07/2018 23:02:01 :::HCHP