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Himachal Pradesh High Court

Shri Gambhir Chand And Another vs Mani Devi And Others on 28 September, 2015

Author: Rajiv Sharma

Bench: Rajiv Sharma

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      IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                                            .
                                        RSA No.                   534 of 2004





                                        Reserved on:              22.09.2015





                              Date of decision: 28.09.2015
____________________________________________________________________

Shri Gambhir Chand and another                                        ......Appellants.




                                                   of
                               Vs.
Mani Devi and others                                              .....Respondents.
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                           rt
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge

Whether approved for reporting?1                   No.
For the appellants :                   Mr. Rajneesh K. Lal, Advocate.

For the respondents:                    Mr. Manoj Pathak, Advocate.



Rajiv Sharma, J.

This Regular Second Appeal is directed against the judgment and decree, dated 16.10.2004, passed by the learned District Judge, Kullu, District Kullu, H.P. in Civil Appeal No. 08/04.

2. Key facts necessary for the adjudication of this Regular Second Appeal are that the appellants­plaintiffs (hereinafter referred to as "the plaintiffs" for the sake of convenience) had instituted a suit for permanent prohibitory injunction restraining the respondents­defendants (hereinafter referred to as 'the defendants' for the sake of convenience) 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes.

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from inferfering or changing the nature of the land comprised in Khata Khatauni No. 113/143 min, Khasra Nos. 1737 and 1738, Kita 2, .

measuring 6­14­0 bighas, situated in Phati and Kothi Bhallan, Tehsil and District Kullu. Plaintiffs have raised an apple orchard over the suit property and the defendants were strangers. The defendants have direct approach to their land from Khasra No. 1740 for carrying out agricultural of operation and path passes through Government land and one path goes from village Ruar to village Narol. The defendants were requested to rt desist from the unlawful activities, but they refused.

3. The suit was contested by the defendants. It is claimed that there was no orchard over the suit property and they have not interfered over the same. Khasra No. 1740 was owned and possessed by various persons and there were six houses over it and two out of them were owned and possessed by the defendants. The defendants used to take their cattle to Taratan Nallah and also bring fodder, fire wood etc. from jungle and for going to Taratan Nallah, they use the maindh of Khasra No. 1737 & 1738 and for going to Village Ruar, Garsa road, they use path through Khasra No. 1737 and 1738.

4. Replication was filed. Learned Civil Judge (Senior Division), Lahaul & Spitti at Kullu, Himachal Pradesh framed the issues on 08.05.2003. The suit was dismissed by the learned Civil Judge (Senior Division), Lahaul & Spitti at Kullu on 19.12.2003.

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5. The plaintiffis preferred an appeal before the learned District Judge, Kullu, District Kullu, H.P. The same was dismissed on .

16.10.2004. Hence, this Regular Second Appeal.

6. This Regular Second Appeal was admitted on the following substantial questions of law on 07.09.2005:

"1. Whether the findings of the Court below are perverse, of based on mis­reading of oral and documentary evidence, particularly the report of the Local Commissioner CW­1/A, map CW­1/B and the musavi P­2?

2. rt Whether the findings of the Court below holding the disentitlement of the plaintiffs to the relief of injunction and holding that the right of a passage by prescription on the land of the plaintiff was established, is based on surmises and conjectures and legally inadmissible evidence?

3. Whether in the absence of a particular path of a particular width being pleaded and proved by the defendant and the plaintiff could be denied the relief of injunction?"

7. Mr. Rajneesh K. Lal, learned counsel for the appellants, on the basis of the substantial questions of law framed, has vehemently argued that the Court below has mis­read the report of the Local Commissioner Ex. CW1/A. The findings of the learned Courts below are based on surmises and conjectures and an alternative path was available to the defendants.

8. Mr. Manoj Pathak, learned counsel for the respondents has ::: Downloaded on - 15/04/2017 19:01:20 :::HCHP 9 supported the judgments and decrees passed by both the Courts below.

9. I have heard the learned counsel for the parties and gone .

through the pleadings, judgments and the records, carefully.

10. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence.

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11. It is admitted fact that the plaintiffs are the owners in possession of the land comprised in Khasra No. 1737. PW­1 deposed that rt the defendants are carving a path from the land of the plaintiffs. The defendants have an existing path through Government land which leads to their houses, but the defendants want short­cut path from the land of the plaintiffs.

12. In rebuttal, the plaintiffs have examined one Shri Yog Raj as PW­2. He deposed that the path leads to the house of defendant from the Government land and not from Khasra Nos. 1737 and 1738.

13. The defendant No. 1 has appeared as DW­1. He deposed that there are six houses in Khasra No. 1740 and their land is situated at various places. There exists a path on the maindh of Khasra Nos. 1737 and 1738, which leads to village Dugh and connects the government path and thereafter leads to Garsa and Bhunter. The defendants used to collect grass and fetch water from Tratan Jungle, which is situated in the southern side of their houses. In between their houses and Tratan Nallah, ::: Downloaded on - 15/04/2017 19:01:20 :::HCHP 9 the land comprised in Khasra No. 1737 and 1738 falls. A path leads to Tratan Nallah from the maindh of Khasra Nos. 1737 and 1738, which is .

being used for the last more than 100 years. They also use said path for carrying out agricultural operations in their land. He has proved the rough sketch Ex. DA.

14. DW­2 Gopal deposed that the path in dispute passes to village of Dugh and Shangna and connects the path leading to Garsa and Bhunter.

The path starts from village Sailang, which is one Karm in width and rt passes through the mainds and further connects with path to Dugh Village. The path is being used by all the inhabitants and public. Grass, water and fuel wood are collected from Tratan forest and the path in question also leads to Tratan Nallah, which is situated towards the southern side.

15. Ex. P­2 is the copy of Musabi, which shows the location of various Khasra numbers. Ex. D­3 is the copy of aks shajra kishatwar, in which various khasra numbers including khasra numbers of the suit land, Khasra No. 1740 and other Khasra numbers have been shown and path has been shown by red ink.

16. The plaintiffs had moved an application under Order 26 Rules 9 & 10 read with Order 18 Rule 18 of the Code of Civil Procedure during the pendency of the appeal for appointment of a Local Commissioner. The application was not contested by the defendants. Consequently, Sh. Aman ::: Downloaded on - 15/04/2017 19:01:20 :::HCHP 9 Kashyap, Advocate was appointed as Local Commisioner on 14.05.2004 by the learned 1st Appellate Court to visit the spot, i.e., village Shangna, P.O. .

Garsa, Phati and Kothi Bhalan, Tehsil and District Kullu to ascertain whether there exists a foot path on the boundary on the maindh or in between Khasra Nos. 1737 and 1738 leading to Tratan Nalah and Government forest over Khasra No. 1740, where the houses of the of defendants were situated. The Local Commissioner visited the spot on 14.05.2004 at 5:00 p.m. and submitted his report, which has been proved rt by him as Ex. CW1/A and spot map Ex. CW1/8. He was called as a Court witness. He was cross­examined by both the parties. He has given the report that no foot path exists on the boundary or maindh of Khasra numbers 1737 and 1738. He also gave the report that orchard existed on the spot. According to the report, there is one path leading to the house of the defendants, which lies in Khasra No. 1740, which is very much adjacent towards northern side of the maindh. There is no path between Khasra Nos. 1737 and 1738 leading to Tratan Nallah and forests, but path to Tratan Nallah and forest goes from the eastern side of the boundary of the adjacent land of Khasra Nos. 1737 and 1738. According to him, there was no maindh from points C to D, but there was maindh between point C to B. According to him, between points B to C, there were two small plants of 3­4 years of apple. The houses of the defendants are situated in Khasra No. 1740 and the houses of the plaintiffs are situated in Khasra No. 1737.

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The report Ex. CW1/A has been set aside by the learned first Appellate Court only on the ground that the statements of the villagers, who were .

present on the spot, were not recorded. However, the fact of the matter is that the report depicts the exact situation on the spot and the purpose of appointing the Local Commissioner was to ascertain whether the maindh situated on the boundary of Khasra No. 1737 and 1738 was being used as of path or not. The categorical findings given by the Local Commissioner is that there was no path on the maindh situated on the boundary of Khasra rt No. 1737 and 1738. It has come on the record that an alternative path is also available to the defendants to reach village Ruar Garsa as well as Taratan Nallah. The Court has already taken note of the fact that there are no revenue entries showing path in the revenue record nor the path was ever recorded during the settlement proceedings. PW­1 Shri Gambhir Chand and PW­2 Shri Yog Raj have categorically deposed that no path exists on the boundary of Khasra Nos. 1737 and 1738. The defendants have also not led any tangible evidence to establish that they were using the land for path for more than 20 years, except bald assertions by DW­2 Shri Gopal. It has also come on record that the relations between the plaintiffs and DW­2 Shri Gopal were strained due to litigation. The Courts below have not correctly red the report of the Local Commissioner Ex.

CW1/A. The defendants have alternative path to reach Taratan Nallah and Village Ruar Garsa road.

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17. Their Lordships of the Hon'ble Supreme Court in Sree Swayam Prakash Ashramam and another Vs. G. Anandavally Amma and others .

(2010) 2 Supreme Court Cases 689 have held that if there exists any other way, there can be no easement of necessity. Their Lordships have held as under:

"33. Since we have accepted the findings of the High of Court as well as of the trial Court on the question of implied grant, it would not be necessary for us to deal with the decisions on the easement of necessity which rt necessarily involves an absolute necessity. If there exists any other way, there can be no easement of necessity. Therefore, the decision of this Court in Justiniano Antao Vs. Bernadette B. Pereira is clearly not applicable in view of our discussions made hereinabove.

Similarly, two other decisions referred to by the High Court in the impugned judgment need not be discussed because these decisions were rendered on the question of easement of necessity."

18. Accordingly, the Regular Second Appeal is allowed. The judgments and decrees passed by both the Courts below are set aside. The suit of the plaintiffs is decreed and the defendants and their agents are restrained from causing any sort of unlawful interference in the ownership and possession of the plaintiffs concerning the land, measuring 1­13­0 bigha contained in Khasra No. 1737. The defendants are also restrained ::: Downloaded on - 15/04/2017 19:01:20 :::HCHP 9 from causing any sort of unlawful interference in the joint ownership and possession of the plaintiffs concerning the land measuring 5­1­0 bighas, .

contained in Khasra No. 1738. The defendants themselves and through their agents and servents are further restrained from changing the nature of the suit land, as described in para No. 2 of the plaint till partition and from damaging the fruit plants and boundary fencing standing over the of suit land, entering their cattle into the suit land in order to damage the fruit plants and from carving out any path through the suit land. The rt decree sheet be prepared accordingly. No order as to costs.

(Rajiv Sharma) Judge September 28, 2015 (bhupender) ::: Downloaded on - 15/04/2017 19:01:20 :::HCHP