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2002 DIGILAW 1407 (PAT)

Sriram Nonia v. Hridayanand Mishra

2002-12-11

S.N.PATHAK

body2002
Judgment S.N.Pathak, J. 1. The revisionist, Sriram Nonia, has come up before this Court assailing the order dated 27th February, 2001, passed by the 3rd Addl. Session Judge, Bhojpur, Ara in Cr. Revn. No. 260 of 2000, whereby the Sessions Court allowed the revision before it filed by the opposite party of the revision before this Court and set aside order passed by the executive Magistrate in a proceeding under Sec. 147 of the Code of Criminal Procedure in Case No. 1 of 1995. 2. Facts relevant for this revision are, in short, that the revisionist. Sriram Nonia, had preferred the aforesaid Misc. Case No. 1 of 1995 before the Executive Magistrate u/s. 147 Cr. PC claiming easementary right of passage over a piece of land 31-32 feet in length and 5 feet in width between the houses of one Kesho Prasad Upadhaya over Plot No. 59 and Hridayanand and others (O.P. of this revision) over Plot No. 61. Further it was the case of Sriram Nonia that he was living on Plot Nos. 55 & 56 under Khata No. 88 for the last fifty years and so he obtained settlement from the State of Bihar in the year 1983. However, in the year 1995, opposite party Hridayanand Mishra and his family members, who were owners of Plot No. 61. started raising a wall on their southern extremity which amounted to blocking of passage of the revisionist from his house. The revisionist was using the aforesaid passage to go upto the road on the southern extremity of the houses of Kesho Upadhyay and Hridayanand Mishra from his own house. Both, Kesho Upadhyay and Hridayanand Mishra each had left 2 1/2 feet wide land carved out from their own land for the passage of the revisionist for the last 50 years. However, on account of the raising of wall on Gth March, 1995, the informant was obstructed in his passage and so he filed a petition before the Executive Magistrate who, after taking evidence on behalf of both the parties, decided the proceeding in favour of Sriram Nonia and directed the demolition of the alleged wall raised by Hridayanand Mishra and his family members. 3. However, the learned Sessions Judge in the revision filed by the 2nd Party of the proceeding, set aside the order of the Executive Magistrate, which necessitated the filing of the revision before this Court. 4. 3. However, the learned Sessions Judge in the revision filed by the 2nd Party of the proceeding, set aside the order of the Executive Magistrate, which necessitated the filing of the revision before this Court. 4. But on perusal of the judgment of the Sessions Court, it transpires that the Sessions, Judge considered the evidence of PW1, PW 2 and PW 3 on behalf of the revisionist-first party and held that the revisionist had failed to prove continuous exercise of his right of passage over the concerned 5 feet wide strip of land for the last 20 years and, hence, he allowed the revision before himself and set aside the order of the Executive Magistrate. The learned Sessions Judge further opined that since the first party revisionist (Sriram Nonia) had obtained the settlement in the year 1982-83 and so in the year 1995 he had not completed 20 years in using the passage. 5. The order of the Sessions Judge has been challenged, firstly, on the ground that the Sessions Judge committed error of record while stating the evidence of PWs and he also failed to notice the fact that the Karmchari, Circle Inspector and 19 villagers had supported the claim of Sriram Nonia regarding the use of the passage in question. 6. So far the assertion that the learned Sessions Judge committed error of record, I find that this assertion of the revisionists lawyer is not borne out by the evidence on the record. Any body who sets up right of a user over any piece of land, belonging to some others, must establish this right as originating from and continuing for, an unobstructed period of 20 years. The revisionist first Party (Sriram Nonia) examined three witnesses, including himself and perhaps, brought on the record a letter written by the Circle Officer, Shahpur (Letter No. 302 dated 6th November, 1995) enclosing with it the report of the Karmchari and the Circle Inspector along with petition of 19 villagers. Out of the witnesses examined, AW 1 was Prem Sagar Mishra. This witness had, however, admitted in his cross-examination that he had allowed Sriram Nonia to plant flower plants over his land of an area of 1 1/2 bighas. He further admitted that he had given 1 1/4 kathas of land to Sriram Nonia in lieu of his (Sriram Nonias) working for himself (for this witness). This witness had, however, admitted in his cross-examination that he had allowed Sriram Nonia to plant flower plants over his land of an area of 1 1/2 bighas. He further admitted that he had given 1 1/4 kathas of land to Sriram Nonia in lieu of his (Sriram Nonias) working for himself (for this witness). He went on to elaborate that he had given those lands to Sriram Nonia after making registration deed. Then he further clarified his statement by saying that he always gave lands to Sriram Nonia on account of his working for him (for this witness). It was suggested to him that Sriram Nonia was his subject and, therefore, he was obliging Sriram Nonia by deposing in his favour, Though this witness denied the suggestion, his admission, as mentioned above, clearly established his interestedness in Sriram Nonia. PW2 was another witness on behalf of Sriram Nonia and this witness deposed on 16th October, 1995. In the opening line of his deposition he admitted that he was resident of village Narayanpur and the passage in question is situated in village Nargada. He said in positive and categorical statement that he had not seen the said passage. So the Sessions Court mentioned in its judgment the aforesaid statements of this witness and opined that any testimony of this witness in support of Sriram Nonias claim regarding the passage was belied. Since this witness had made the aforesaid categoricial statement, apparently, there is no error of record committed by the Sessions Court and, therefore, further statement of this witness that Sriram Nonia was using the disputed passage and he had seen this user by Sriram Nonia Nonia becomes contradictory and, hence, no reliance, could be placed on the testimony of this witness. Moreover, there is further significant admission of this witness in his cross-examination that his father had come to village Narayanpur in the year 1977. Earlier he was living at village Ara. So if this witness came to village Narayanpur in the year 1977, his support to the claim of Sriram Nonia for using the disputed passage for a period of 20 years also becomes doubtful. This witness, in the aforesaid circumstance, cannot see nor can he support the right of user of the passage, in question, by Sriram Nonia for a Continuous period of 20 years. This witness, in the aforesaid circumstance, cannot see nor can he support the right of user of the passage, in question, by Sriram Nonia for a Continuous period of 20 years. PW 3 was Sriram Nonia himself and admittedly, he obtained settlement from the State of Bihar in the year 1982-83 and if he claimed that he was over Plot Nos. 55 & 56 for the last 50 years, he had to prove it by sufficient and positive evidence. His solitary evidence was not sufficient to prove and establish his case. So far the report of the Karmchari and the Circle Inspector as endorsed by the C.O., the Sessions Judge rightly opined that as the authors of the reports were not examined, nor reliance could be placed on the same and this opinion does not appear to suffer from any irregularity or illegality. u/s. 148 Cr. PC only a local inspection held by any Magistrate on orders from the Magistrate sitting in reisin over a proceeding u/s. 147 Cr, PC can be read in evidence. The letter of the C.O. was not such a piece of document which could be legally relied upon, Moreover, it was submitted by the revisionists lawyer that Sriram Nonia was a single Harijan in his village and he was surrounded by upper cast families, and, therefore, there was no question of any other villager coming to his aid in support of his claim, but this submission does not appear to be convincing because, admittedly, the C.O. had forwarded a petition of 19 villagers. So if at all 19 villagers had supported the claim of Sriram Nonia and the Magistrate passing the order u/s. 147 Cr. PC had relied on this document, I am unable to understand how Sriram Nonia was not receiving any support from his villagers, as a witness, on the record of the case. Sriram Nonia, at least was expected to examine a few of them in support of his claim. So when the learned Sessions Judge set aside the order of the Executive Magistrate, I do not think, he committed any illegality or irregularity, so far the facts are concerned. 7. There was another aspect of the case and it was vehemently argued by the revisionists lawyer that Sriram Nonia had no other passage for his ingress and egress to and from his house. 7. There was another aspect of the case and it was vehemently argued by the revisionists lawyer that Sriram Nonia had no other passage for his ingress and egress to and from his house. However, it is apparent from the allegations made in the application of Sriram Nonia, which gave origin to the case under Section 147 Cr. PC that Hridayanand Mishra had raised a wall on the southern extremity of the disputed passage. That means, Sriram Nonia had very much the opportunity and access to the disputed passage upto the southern extremity and there was no obstruction between his house and the passage upto the stage where this passage was blocked. This aspect of the case does not appear to be convincing. This is so because if at all Hridayanand had to block the passage of Sriram Nonia, he would raise a wall just on the origin of the passage, the disputed, passage, which would be on the northern extremity near the very threshold of the house of Sriram Nonia or near the piece of land where Sriram Nonia comes first from his house in order to proceed to the passage towards the southern common Rasta as it has been stated in the application of Sriram Nonia. Besides the above, retrograde circumstances, there is evidence of Kesho Upadhyay (OP. No. 1) who said that he had not left any 2 1/2 wide land from his land for use of Sriram Nonia. He, rather, said that the boundary wall of his own house and that of Hridayanand Mishra were touching each other (contiguous). He further said that wall of Hridayanand was brick-built and it was existing since 2 1/2-3 years. Other witnesses, such as, Surya Kumar Mishra (O.P. No. 2), Ajay Kumar Mishra (O.P.W. 3) also said that earlier there was a mud-built wall which was latter convicted into brick-built wall and there was no passage left in between the houses of Kesho Upadhyay and their own. The report of the C.O. indicated that Sriram Nonia was using some other passage, of course, with some difficulty when the disputed passage was blocked. The proceeding u/s. 147 Cr. PC is decided on the basis of claim of any party that he was using a particular passage within three months prior to initiation of the proceeding and as a matter of right. The proceeding u/s. 147 Cr. PC is decided on the basis of claim of any party that he was using a particular passage within three months prior to initiation of the proceeding and as a matter of right. Simply because a particular person has no other convenient and easy passage other than a particular disputed passage, he cannot claim it by way of right of easement which must be proved by cogent, sufficient and positive evidence. Simply because a particular person left his land Parti and some people use it, that wilt not give them the right of user, even though they do not have any other passage. 8. As a result of the aforesaid discussion, I do not think the impugned order passed by the Sessions Judge deserve any interference from this Court. This revision is, accordingly, dismissed.