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2001 DIGILAW 1159 (PNJ)

Mukhtiar Kaur v. Sita Singh

2001-10-18

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This is a defendants appeal and has been directed against the judgment and decree dated 22.1.2001, passed by the Additional District Judge, Sangrur, who allowed the appeal of the plaintiff Shri Sita Singh and set aside the judgment and decree dated 28.7.1999 vide which the suit of the plaintiff was dismissed and that the counter claim of the defendant was accepted and plaintiff was restrained from dispossessing the defendants being the legal representative of Shri Daulat Singh from Khasra No. 1743(0-2-2). 2. The brief facts of the case are that Shri Sita Singh filed a suit in the Civil Court against his real brother Daulat Singh for permanent injunction with regard to the street marked by the words "ABCD" 10 feet in width as per the site plan attached with the plaint. Shri Daulat Singh died during the pendency of the suit and his L.Rs were brought on record vide order dated 2.9.1997. According to the plaintiff he is residing in house denoted by the letters AGFI in the site plan for the last about 50 years with his family members. This house abuts to 10 feet wide street marked by the words (letters ?) ABCD. According to the plaintiff, he is using this passage as an approach to his house and there is no other passage apart from this ten feet wide street. This street is being used by him and his family members for the past about 50 years and, therefore, he has acquired the right of easement by prescription. It is also alleged by the plaintiff that this very street is also being used by the other residents whose houses abut this land. Now the defendants want to raise the illegal construction by putting a wall in order to obstruct the peaceful enjoyment of the right of the plaintiff to use that passage. 3. The suit was contested by the defendants. It may be mentioned here that Shri Daulat Singh had two marriages. From the first wife Smt. Bachan Kaur, Jagroop Singh and Maghar Singh were born. After the death of Bachan Kaur, Daulat Singh was married with Mukhtiar Kaur and appellants No. 4 to 9 are the children of Shri Daulat Singh from his second wife. These defendants filed written statements separately and raised counter claim for the declaration of ownership over the property in question. After the death of Bachan Kaur, Daulat Singh was married with Mukhtiar Kaur and appellants No. 4 to 9 are the children of Shri Daulat Singh from his second wife. These defendants filed written statements separately and raised counter claim for the declaration of ownership over the property in question. Shri Daulat Singh during his life time contested the suit and he denied the existence of any such ingress and egress to his house. According to Daulat Singh deceased, there was no street. The plot in question was not joint. The plaintiff had never acquired any easementary right by prescription. Rather, on the Northern side of the house of the plaintiff, there is a village Phirni. The land bearing Khasra No. 1743 measuring 2 Biswas 2 Bighas was purchased by him in the open auction on 2.4.1974 in the presence of the residents of the village. The defendants constructed the boundary wall on all the sides of the plot and had every right to construct the plot. It was also alleged by the defendant that Shri Daulat Ram was the owner of the property and after his death, his property devolved upon Dalwara Singh, Binder Singh, Darshan Singh and Gurmit Singh on the basis of the will dated 7.6.1996. The defendants are in exclusive possession of the property. Plaintiff wants to disturb their possession under the garb of specific order. With this background, the defendants made a prayer in the counter claim that since they are the owners of the land in question, therefore, the plaintiff be restrained from interfering in their peaceful possession. 4. Plaintiff filed replication in which he reiterated the allegations made in the plaint by denying those of the written statement and from the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether there exists 10 wide street shown as per site plan, if so its effect ? OPP 2. Whether the disputed street is the only street going to the house of the plaintiff and he has acquired the right of easement to use the same ? OPP 3. Whether the plaintiff is entitled to the injunction as prayed for ? OPP 4. Whether the defendant is owner in possession of Khasra No. 1743 (0-2-0) in which he has already constructed a boundary wall, if so its effect ? OPP 5. Whether the suit is not maintainable ? OPP 3. Whether the plaintiff is entitled to the injunction as prayed for ? OPP 4. Whether the defendant is owner in possession of Khasra No. 1743 (0-2-0) in which he has already constructed a boundary wall, if so its effect ? OPP 5. Whether the suit is not maintainable ? OPD 5-B. Whether defendants are entitled for injunction as prayed for in counter claim ? OPD 5-C. Whether counter claim is not maintainable ? OPP 6. Relief. The parties were given the chance to lead evidence and on the conclusion of the trial, the learned trial Court dismissed the suit of the plaintiff while counter claim of the defendant was decreed. 5. Aggrieved by the judgment and decree of the trial Court, Shri Sita Singh, unsuccessful plaintiff, filed the first appeal before the Court of Additional District Judge, Sangrur, who, for the reasons given in paras No. 6 to 12 of the impugned judgment decreed the suit of the plaintiff by setting aside the judgment and decree of the trial Court and defendants were restrained from interfering in the peaceful use of the passge by the plaintiff of the land of 10 feet in width starting from points AC towards South of the houses of Sita Singh, Bikkar Singh and Jai Kaur abutting the main street as per the site plan Ex.PW2/A, which was prepared by the Local Commissioner by holding that the plaintiff has acquired the right of easement by presecription. Paras No. 6 to 12 of the judgment of the first appellate Court are reproduced as under :- "6. The dispute basically between the parties is upon isse No. 2. The plaintiff-appellant relied upon the site plan Ex.P-1 in which the 10 feet wide street in question has been shown blue in colour. This site plan has been found to be incorrect according to the spot, but that would not be the end of the disptue, as the site plan prepared by the local Commissioner on the site visit, is proved to be the correct site plan according to the spot from the statement of witnesses examined by both the parties. It is admitted evidence of the parties that the house of the plaintiff-appellant abuts the phirni of the village which is about 40 wide, but there is no entrance to the house of the plaintiff from the phirni because of the nature of his construction. It is admitted evidence of the parties that the house of the plaintiff-appellant abuts the phirni of the village which is about 40 wide, but there is no entrance to the house of the plaintiff from the phirni because of the nature of his construction. Shri Gurpreet Singh, Advocate, Sangrur, was appointed Local Commissioner by the trial Court to visit the spot and report whether there exists any opening on the northern side of the house of the plaintiff-appellant which abuts the phirni and whether there exist any street marked ABCD as per the site plan attached. The Local Commissioner filed his report and Sh. Gurpreet Singh, Advocate, has been examined as PW-2. The Local Commissioneer visited the spot and inspected it in the presence of the parties and their Advocates and certain other co-villages were also present. The Local Commissioner went to the houses of Sita Sigh, Daulat Singh and others through the passage in question marked by letters ABCD in his site plan Ex.PW2/A attached with his report in a tractor trolley. There was a tree at point-IO and pole at point P in the passage marked by letters ABCD. It was observed by the Local Commissioneer that Sita Singh, Bikar Singh, Jai Kaur and Daulat Singh, have opening of their houses towards the passage in question. In the report of the Local Commissioner Ex.PW2/B it is stated that there is no opening on the northern side of the house of plaintiff towards the phirni and they went on the phirni from this passage through the house of the defendant Daulat Singh, since deceased. There is no gate of the house of Maghar Singh which opens in the phirni and that house adjoins the house of Sita Singh plaintiff on the eastern side. There are the doors of the house of Daulat Singh and Bikar Singh on the phirni as per the site plan Ex.PW2/A prepared by the Local Commissioner. The position of the various houses abutting the house of plaintiff, as mentioned in the report and the site plan of the Local Commissioner, is admitted in the statement of the plaintiff as PW-3 and the contesting respondent Binder Singh, DW-5. 7. Daya Singh PW-1 is the Ex-Sarpanch of the village. The position of the various houses abutting the house of plaintiff, as mentioned in the report and the site plan of the Local Commissioner, is admitted in the statement of the plaintiff as PW-3 and the contesting respondent Binder Singh, DW-5. 7. Daya Singh PW-1 is the Ex-Sarpanch of the village. He stated that the plaintiff-appellant is living in the house in question for about past fifty years and there is 10 wide street as a passage in dispute, as access to his house and there is no door to the house of the plaintiff towards the phirni of the village. He is a truthful witness because Daya Singh has not even tried to conceal the ownership of the site, as according to him this site ws purchased by Daulat Singh in a public auction from the department of rehabilitation. In the cross-examination, it is admitted by Daya Singh that there is a wall of the house of the plaintiff as PW-3 in support of this version. It is stated by him that he is using this passage for the last 50-55 years and there is no other passage apart from the passage in question, as an ingress and egress from his house. The material witnesses on behalf of the defendants to be discussed on the issues are Daulat Singh DW-1 who was alive at that time and that of DW-5 Binder Singh, who was impleaded as defendant after the death of Daulat Singh alongwith other legal heirs of Sh. Daulat Singh. He stated there is phirni on one side of the house of the plaintiff but the plaintiff had been using the site purchased by him because it was lying vacant and on account of the close relationship between them as Sita Singh and Daulat Singh are the real brothers Daulat Singh also stated in the chief examination that Sita Singh had also been taking the tractor trolley to his house from his land. It is admitted by Binder Singh DW-5 that there is no door of the house of the plaintiff-appellant on the phirni and he is using the land in question because it is lying vacant. He admits that this street is being used by the plaintiff for the past about 50 years. There is the shamlat land after this street in which the plaintiff is keeping his cattle. He admits that this street is being used by the plaintiff for the past about 50 years. There is the shamlat land after this street in which the plaintiff is keeping his cattle. It is further admitted by him that Sita Singh, Jai Kaur and Bikar Singh are using this land in question since before the period Binder Singh attained the age of discretion. Binder Singh was about 24 years old when he made the statement in the Court on 16.3.1999. He also stated that the plaintiff owns about 6-7 pigs which he brings to his house from the disputed passage for the reason that this site is lying vacant. Binder Singh has also admitted that the house of Jai Kaur is not abutting the phirni. He further stated that Jai Kaur and Sita Singh, plaintiff/appellants have passage to the phirni from the house of Bikkar Singh. According to the Local Commissioner Gurpreet Singh half of the intervening wall of the house of Sita Singh and Bikar Singh has fallen. That does not mean that the plaintiff has any right of passage to the phirni from the residential house of another person nor there was any such pleaded case of the defendants. The only plea of the defendant was that the northern side of the house of the plaintiff abuts the phirni and the plaintiff comes to his house from the phirni which allegation has been belied and the new case now attempted by the contesting defendant-respondent being beyond scope of pleadings has to be rejected. Binder Singh has also admitted that the plaintiff Bikar Singh and Jai Kaur are passing from the land in question because it is lying vacant. This is about 15-20 feet wide in front of the house of these persons. DW-3 Joginder Singh and DW-4 Jagrup Singh son of Daulat Singh have supported the plaintiffs case because the interest of defendants No. 2 and 3 is separate from that of other legal heirs of Daulat Singh. DW 3 Joginder Singh was produced by these defendants No. 2 and 3 in the witness box. 8. The entire case, therefore, has to be discussed and decided on the above admitted evidence on the record. DW 3 Joginder Singh was produced by these defendants No. 2 and 3 in the witness box. 8. The entire case, therefore, has to be discussed and decided on the above admitted evidence on the record. The question is not that it is convenient if the plaintiff opens the door towards the northern side of his house as the house abuts the phirni of the village but the prescriptive rights of the plaintiff/appellants to use the site in question as a passage as an easement. The allegation of the plaintiff is that he is using this passage from the times immemorial as an access to his house and there is no other passage apart from the passage in dispute for his house. This passage is being used by him for about 50 years and thus he has acquired the right of easement by prescription. Reference can be made to Suresh Chand v. Hindu Mal and Ors., 1994(1) SLJ 81. In that case it was observed by the Honble Himachal Pradesh High Court that it is correct that the words openly, peacefully and without interruption have not been used in the plaint but the words as of right for the last 23 years period and defendant never objected to the use of path purports to be open, peaceable and uninterrupted use only. Similarly, in his deposition in the Court the appellant-plaintiff had not uttered the words as of right but his statement that he and proforma defendant-respondents had been using the path in dispute since they purchased the land to which the defendant-respondents never objected means that they have been using the path in dispute continuously in assertion of their right, which was immediately granted to them by the respondent-defendants by not raising any objection. It was further observed by the Honble High Court of Himachal Pradesh that the animus of the person exercising the right, which is question of fact, is required to be determined from the circumstances, proved on record of each case. If positive evidence to prove this fact is not available, the Court is within its rights to draw a presumption from long, continuous user of a right that such user which was open, peaceful and unobstructed must be in conscious exercise of the right. If positive evidence to prove this fact is not available, the Court is within its rights to draw a presumption from long, continuous user of a right that such user which was open, peaceful and unobstructed must be in conscious exercise of the right. The presumption is further fortified if the claimant does not have any licence or permission express or implied from the servient tenement, to enjoy the right. 9. This was based upon section 15 of the Easement Act. The relevant portion of Section 15 of the Act is : "..... Where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and the use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested." The Honble High Court held that from the fact that the land was purchased in March, 1958 though the house thereon was constructed in the year 1960-62 and totality of evidence on record in respect of long user of the path in dispute, the only conclusion which can be drawn is that the appellant- plaintiff and proforma respondent-defendants, had been using the path in dispute for more than statutory period of twenty years openly, peaceably, continuously, without interruption and as of right, therefore, they have acquired the easementary right of way over the path in dispute by prescription. 10. In the present case, there can be no argument of the defendants that Daulat Singh had permitted the plaintiff to use his land to term the use of the site by the plaintiff as a licence, because there was no such pleading at all in the written statement. Moreover, the property in question was purchased by Daulat Singh in an open auction on 2.4.1974 as per the allegations in the written statement but the plaintiff is in possession of the house for about fifty years and there is no question for the grant of any permission by Daulat Singh before the year 1974, as he was not the owner of thereof at that time. There cannot be any dispute of the use of this site as a passage for more than twenty years because even Binder Singh had stated that this site is being used by the plaintiff Jai Kaur and Bikar Singh, since before he attained the age of discretion. Bhaskar Ghosh and anr. v. Santosh Ghosh and others, AIR 1988 Calcutta 320 was a case in which the right to irrigate the land with tank water was being exercised from the times immemorial openly, peaceable and as an easement to the knowledge of the owners of the tank and was recorded in the record of rights, the Honble High Court held that the enjoyment of the right to irrigate the land for the over 65 years gives rise to a presumption of immemorial user which again would give rise to a presumption of last grant. In such circumstances, the plaintiffs cannot be expected to prove as to how the right originated. 11. The learned counsel for the respondents has contended that the land in question was purchased by Daulat Singh in an open auction, and it is admitted by the own witnesses of the plaintiff namely Daya Sigh (PW-1) that the plaintiff was also present at the time of the auction/sale. The purchase of the land by Daulat Singh in the open auction would not disentitle the plaintiff-appellant the right of easement which he has acquired by prescription. In the year 1974, there may not have been any dispute between the real brothers with regard to use of the land and secondly the land would be purchased only by the person who was capable of making the highest bid and any one purchasing the land would be presumed to have acquired the right subject to any legal impediment over then land. This is not a case of the use of the ridges of the agricultural fields by the villagers in general, or of the vacant land by all and sundry but a case in which the site in question leads only to the houses of the plaintiff Jai Kaur and the use of the passage as an access to the houses of these persons for a number of years amounts to the acquisition of right by prescription as it is proved that the plaintiff, has not been using any other passage to his house apart from the land in question. The finding of the learned trial Court on this, therefore, is to be upset. 12. The next question be how much is the width of the land which should be granted to the plaintiff as of right. This should be not more than 10 wide, because that was the original claim of the plaintiff in the trial Court. According to the statement of Binder Singh (DW-5) the width of the land abutting the house of Jai Kaur and plaintiff is about 15-20. The relief is to be granted to the plaintiff on the basis of the site plan prepared by the Local Commissioner which has been found to be correct according to the spot. It is held that the plaintiff has the right of easement by prescription to use 10 wide portion of the land starting from points A to C towards the south as per the site plan Ex.PW2/A for egress and ingress to his house towards the main street as shown in the site plan. On issue No. 4 the finding of the learned trial Court should be confirmed because of the admitted evidence on the subject. The land in question is stated to be 6 biswas which is equal to two biswas (pukhta). There are jamabandies of the land measuring 2 biswas ghair mumkin abadi comprising of khasra No. 4743 as per jamabandies Ex.D-1 for the year 1975-76, Ex.D-2 for the year 1979-80, Ex.D-3 for the year 1984-85 and Ex.D-4 for the year 1989-90. Ex.D.4 to Ex.D-7 are the khasra girdawaries. The demarcation of the land has not been got done by the defendants in order to establish that this land bears khasra No. 1743 but that was not essential on account of so many factors appearing in the evidence. PW-1 Daya Singh Ex- Sarpanch examined by the plaintiff-appellant in the cross examination stated that this was the evacuee land which was purchased in the open auction by Jai Ram, father of the parties, but the revenue records shows that this land is entered in the name of the Daulat Singh. DW-4 Jagrup Singh has also stated the area of the disputed land to be six biswas and that it was purchased from the department of custodian and Jagrup Singh also bid at the auction. DW-4 Jagrup Singh has also stated the area of the disputed land to be six biswas and that it was purchased from the department of custodian and Jagrup Singh also bid at the auction. Jagrup Singh stated that the land was purchased by three brothers in the auction, but his father Daulat Singh got his name recoded in the revenue papers. At that time Jagrup Singh was posted in the Indian Army. DW-3 Joginder Singh a witness produced by defendants No. 2 and 3 has stated that he does not know if the land was purchased by Daulat Singh, but the possession of the land was with Daulat Singh. From the above factors, I do not find any reason to disturb the finding of the learned trial Court on issue No. 4, which is, therefore, affirmed". Not satisfied with the judgment and decree of the first appellate Court, the present appeal has been filed by the defendant. 6. I have heard Shri A.P. Singh, learned counsel appearing on behalf of the appellants and Shri G.S. Chadha, learned counsel appearing on behalf of the respondents and with their assistance have gone through the record of the case. 7. The entire controversy in this case can be adjudicated with the help of the site plan Ex.PW2/A. It is the common case of the parties that Daulat Singh and Sita Singh are two real brothers. The dispute is with regard to the site marked by the words ABCD as shown in this site plan. The case set up by the plaintiff in the trial Court was that the site marked ABCD is a passage and he is using this passage for the last more 50 years as ingress and egress to his house. He had no other access to his house and, therefore, he has every right to use this site marked ABCD as a passage in order to reach his house. 8. On the contrary, the stand of Shri Daulat Singh deceased was that the site marked ABCD is his personal property which was purchased by him in the auction proceedings. Since he is the absolute owner of the property, therefore, he has every right to utilise this property in the manner he likes. The plaintiff cannot be allowed to interfere in this passage. According to the stand of the defendant Shri Daulat Singh purchased this site in open auction on 2.4.1974. Since he is the absolute owner of the property, therefore, he has every right to utilise this property in the manner he likes. The plaintiff cannot be allowed to interfere in this passage. According to the stand of the defendant Shri Daulat Singh purchased this site in open auction on 2.4.1974. Sita Singh plaintiff was allowed to use this site as a passage as a licensee because he is the real brother of Shri Daulat Singh. Sita Singh has not acquired any right in this passage. Moreover, on the Northern side of the house of Shri Sita Singh there is a 40 feet Phirni which can be used by him as passage by way of ingress and egress in order to utilise his house. It was also the stand of the defendants that the house of Shri Daulat Singh has a gate opening in the Phirni. In fact, Shri Sita Singh does not want to open the door in the said Phirni and he wants to interfere in the site denoted by the words ABCD. 9. Now, the point for determination is what are the rights of the plaintiff in the light of the above controversy. Section 15 of the Easement Act lays down that where a right of way or any other easement has been peaceable and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption and for twenty years, the right to such access and the use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested". 10. It has come in the evidence that Shri Sita Singh is using this site as a passage for the last about 50 years openly, peacefully and without any interruption and to the knowledge of all, therefore, he has acquired a right in the site marked ABCD which was purchased by Shri Daulat Singh in the year 1974 i.e. on 2.4.1974. It has come in the evidence that Shri Sita Singh is using this site as a passage for the last about 50 years openly, peacefully and without any interruption and to the knowledge of all, therefore, he has acquired a right in the site marked ABCD which was purchased by Shri Daulat Singh in the year 1974 i.e. on 2.4.1974. Perusal of the site plan Ex.PW2/A would further show that there is no gate of the house of Shri Sita Singh which abuts the Phirni, which is suggestive of the fact, that Shri Sita Singh had been exercising his right of easement by way of ingress and egress in order to reach his house through the site marked ABCD. This site plan was prepared by a Local Commissioner Shri Gurpreet Singh who appeared by PW2 in the trial court. This gentleman visited the spot in the presence of the parties and he also visited the house of Shri Sita Singh and Daulat Singh had others. As per report of the Local Commissioner, there is no opening on the Northern side of the house of the plaintiff towards the Phirni and in order to reach the Phirni, it is necessary to go to the house of Shri Daulat Singh at the first instance and then through the gate one can reach to the Phirni or other mode is that one has to approach the main street on the Western side and then to reach the Phirni which proceeds from West to East. 11. In this view of the matter, it is established on the record that Shri Sita Singh had been using this disputed site as a passage. It has come in the statement of Daya Singh PW1 that plaintiff was living in the house for the last 50 years and there was 10 feet street as passage in dispute which is an access to his house and there is no door to his house opening on the Phirni. This witness also admits that site marked ABCD belongs to Shri Daya Singh and to that extent there is no dispute but it is established on the record that this site is being used uninterruptedly as passage by Shri Sita Singh for the last 50/55 years and in these circumstances, the ingredients of Section 15 of the Easement Act are fully attracted in this case. 12. 12. Faced with this difficulty, learned counsel appearing on behalf of the appellant submitted that Sita Singh can easily open a door abutting the Phirni and secondly Sita Singh was aware that the disputed site in question has been purchased by the plaintiff in open auction on 2.4.1974 and at no point of time he claimed that he has easementary right of ingress and egress in this property. These contentions are without any merit. We are not determining as to what Sita Singh can do but we are determining what are the rights of Sita Singh with the passage of time in the site marked ABCD. As I stated above, there is no door of house of Sita Singh which abuts the Phirni. Only the approach to the house of Sita Singh plaintiff is through the disputed site ABCD. 13. In these circumstances, if Sita Singh is exercising his right over the passage ABCD for the last 50/55 years uninterruptedly, he gets an easementary right irrespective of the fact that the title vests with the defendant or his successors. At no point of time, Shri Sita Singh has given in writing that he has abandoned his interest or right of easement in the disputed site ABCD. It was also submitted on behalf of the appellant that Shri Sita Singh was the real brother of Shri Daulat Singh and for that reason Shri Daulat Singh had been allowing the plaintiff to use the site marked ABCD as a passage. He was simply a licensee. The submission of counsel for the appellant cannot be accepted for two reasons; firstly, the site in question was purchased by Shri Daulat Singh in the year 1974, whereas Sita Singh and his family members had been exercising the right of passage for the last about 50/55 years. Any sale by the authorities will be subject to the right of those persons who had already acquired easementary rights of passage through the disputed site. In this view of the matter, I am of the considered opinion that the findings of the first appellate Court are totally legal, perfect and there is no error of jurisdiction. Hence I do not see any merit in this appeal and the same is hereby dismissed by affirming the judgment and decree of the first appellate Court. Appeal dismissed.