Research › Browse › Judgment

Himachal Pradesh High Court · body

1998 DIGILAW 69 (HP)

ROOP SINGH v. SUNDER SINGH

1998-05-16

SURINDER SARUP

body1998
JUDGMENT SUR1NDER SARUP, J.—This judgment will dispose of the Regular Second Appeal No. 352/92 and Cross-objection No. 469/92 arising out of the same judgment and decree of the lower appellate Court passed by Shri V.K Sharma, Additional District Judge, Sirmaur at Nahan, dated 10.6.1992 whereby after modifying the decree of the trial Court, he has passed a decree to the effect that the permanent injunction granted by the trial Court in favour of the plaintiff-respondent-objector and the pro forma defendants and against the contesting defendant i.e. the appellant herein, restraining the latter from causing interference with the suit land, shall be subject to the enjoyment of the customary easement of pathway situated in between Khasra Nos. 153 and 154 which is in existence in the suit land. It has further been ordered that the appellant shall be free to use that path as a customary easement in future as well He has upheld the decree of possession passed by the trial Court in respect of the land comprised in Khasra No. 153/1, measuring four Biswas. In this connection, it may be mentioned here that the judgment and decree of the trial Court in favour of the plaintiff-respondent-objector was passed by Shri R.K. Sharma, Sub-Judge, 1st Class, Court No. 2, Paonta Sahib, Sirmaur, dated 5.5.1990. 2. The plaintiff-respondent-objector filed a suit on the pleadings that he and the pro forma defendants are the owners in possession of the suit land, fully described in the plaint. According to him, the defendant-appellant has no right, title or interest in the suit land and he wanted to dispossess the plaintiff and the pro forma defendants therefrom and with that view he started digging the suit land on 20.6.1986. In these circumstances, the suit was filed initially for grant of a decree of permanent injunction. Subsequently, he amended the plaint and relief of possession was also prayed for in respect of the land measuring four Biswas out of the suit land denoted by Khasra No. 153/1. According to him, the defendant-appellant forcibly occupied the same in the last week of September 1986. 3. In the amended written statement, the defendant-appellant contested that the plaintiff-respondent has no cause of action and that the suit is not maintainable. On merits, it was pleaded that the defendant-appellant is using the path in between Khasra Nos. According to him, the defendant-appellant forcibly occupied the same in the last week of September 1986. 3. In the amended written statement, the defendant-appellant contested that the plaintiff-respondent has no cause of action and that the suit is not maintainable. On merits, it was pleaded that the defendant-appellant is using the path in between Khasra Nos. 153 and 154 since time immemorial and that he has perfected the title by way of adverse possession over the suit land. 4. On the pleadings of the parties, the trial Court framed the following issues:— (1) Whether the suit is not maintainable in the present form as alleged by the defendants?.......O.P.D. (2) Whether the plaintiff has cause of action?.....O.P.R (3) Whether the plaintiff and the pro forma defendants No. 6 to 14 are owners in possession of Khasra No. 153 min, measuring 5 Bighas and 18 Biswas, as alleged?.......O.P.R (4) Whether the defendants No. 1 to 5 have encroached upon in the area of the suit land?......O.P.R (5) In case Issue No (2) is proved in affirmative whether defendants No. 1 to 5 have become owners of the encroached part by way of adverse possession, as alleged?.....O.P.D, (6) Whether the defendants are entitled to specific cost under Section 35, C.RC as alleged?..,,.OP.D. (7) Relief. 5. Under issue No. (1), the suit was held to be maintainable and under issue No. (2), the plaintiff was held to have cause of action. Under issue No. (3), the finding was that the plaintiff and the pro forma defendants are the owners in possession of the suit land. Under issue No. (5), it was held that the defendant-appellant has not become the owner of the suit land by way of adverse possession, although, it was held that he has encroached upon the suit land, which was the finding under issue No. (4). Issue No. (6) was also decided against the defendant-appellant. On these findings, the suit was decreed. 6. In appeal, the learned lower appellate Court although gave findings on the substantive issues involved in the case and the points in dispute in favour of the plaintiff-respondent, yet modified the decree of the trial Court to the extent indicated above. Hence, the cross-objections before this Court by the plaintiff-respondent. 7. I have heard the learned Counsel for the parties and I have also examined the record. 8. Hence, the cross-objections before this Court by the plaintiff-respondent. 7. I have heard the learned Counsel for the parties and I have also examined the record. 8. The plaintiff-respondent-objector has relied upon the certified copy of the Jamabandi for the year 1981-82, Ex. P-1 and the Khasra Girdawari for the period from Kharif 1984 to Rabi 1986. It proves the ownership and possession over the suit land of the plaintiff and the pro forma defendants. They have supported this documentary evidence by examining PW-1, the plaintiff and other witnesses namely PW-2 Chuhar Singh, PW-3 Faquir Mohammad and PW-4 Gurdev Thakur Tehsildar. The finding of the learned lower appellate Court in the impugned judgment and decree is also that even the defendant also does not deny the ownership and possession of the plaintiff and the pro forma defendants in the written statement. 9. Moreover, PW-4 Gurdev Singh Thakur who is Tehsildar Paonta Sahib was also appointed as local commissioner to demarcate the suit land and find out as to whether any part thereof was encroached upon by the appellant. He has proved on record his report Ex. PW-4/A. According to this report, the appellant had encroached upon a part of the suit land denoted by Khasra No. 153/1, measuring four Biswas. The report is accompanied by the copy of Aks-Musavi and Istrkhaj Rakba. 10. As against the above evidence of the plaintiff-respondent, the appellant relied upon the statements of DW-1 Dayal Ram and DW-2 Mehaindi Ram. They have not been able to rebut the evidence of the plaintiff-respondent. So much so, DW-1 did not say anything about the adverse possession over the suit land of the defendant-appellant. 11. In view of the above categoric evidence on record which completely supports the case of the plaintiff-respondent-objector and demolishes the plea of the defendant-appellant as taken up in the written statement, no interference is called for in second appeal. However, Shri Bhupinder Gupta, learned Counsel for the defendant-appellant has submitted that since the dispute is regarding a very small area of 90 Sq. feet and the same is in the possession of the defendant-appellant for a long period of time, the plaintiff-respondent-objector can well be compensated by cash compensation and the defendant-appellant may not be restrained by virtue of the impugned decrees of the courts below. feet and the same is in the possession of the defendant-appellant for a long period of time, the plaintiff-respondent-objector can well be compensated by cash compensation and the defendant-appellant may not be restrained by virtue of the impugned decrees of the courts below. However, in second appeal, this Court cannot countenance such an argument as no question of law, much less any substantial question of law, has been shown to be involved or that the findings of the lower Courts in favour of the plaintiff-respondent-objector are in any way erroneous or unjustified from the evidence on record. 12. Insofar as the submission regarding modification of the decree of the trial Court by the judgment and decree of the learned lower appellate Court is concerned holding that the defendant-appellant is entitled to the enjoyment of customary easement of the pathway in question, I find force in the cross-objections filed by the plaintiff-respondent-objector. Admittedly, there was no plea in the written statement regarding the enjoyment of the customary pathway in question. Manifestly, no issue was framed nor was required to be framed on this aspect of the case by the learned trial Court. The learned lower appellate Court has erred in permitting the defendant-appellant to take up altogether a new plea in first appeal before him. This I approach of the lower appellate Court cannot be appreciated and his judgment I to that extent is manifestly erroneous. 13. For the reasons recorded above, the second appeal filed by the defendant-appellant is dismissed thereby upholding the judgment and decree of the trial Court and that of the lower appellate Court to the extent that the same affirms the judgment and decree of the trial Court. However, the cross-objections filed by the plaintiff-respondent-objector are allowed thereby setting aside that part of the judgment and decree of the lower appellate Court whereby he has allowed the defendant-appelant to enjoy the use by customary easement of pathway situated in between Khasra Nos. 153 I and 154 on the basis of his alleged right of customary easement, which was nowhere pleaded by the defendant-appellant in the written statement. In the circumstances, there will be no order as to costs. Appeal dismissed.