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2003 DIGILAW 49 (PNJ)

Atma Ram v. Om Pal

2003-01-13

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. By this order, I shall dispose of RSA No. 4583 of 2002 and RSA No. 3691 of 2002 as common questions of facts have been raised by the same plaintiff in both the appeals. The facts are being referred from RSA No. 4583 of 2002. Atma Ram plaintiff-petitioner has filed this second appeal assailing the concurrent findings of fact returned by both the Courts below. The Additional District Judge in his judgment and decree has concurred with the findings and has upheld the judgment and decree dated October 23, 1998 passed by the Civil Judge (Senior Division). Kurukshetra. 2. The plaintiff-appellant filed civil suit No.359 of 1996 instituted on December 7. 1990 for permanent injunction to restrain the defendant-respondents from installation of doors, windows, ventilators. drainage pipe (Patnala) in the wall described as "BC", towards the gali (street) situated on eastern side of his house forcibly or illegally or from encroaching upon the said gali (street) either by way of raising construction over the same or in any other manner. The allegations in the plaint made by the plaintiff-appellant are that Jug Lal his father and Parsanna. his uncle respectively purchased a plot from one Roop Ram, which measured 62 ft. on northern side and 58 ft. on southern side and 60 ft on eastern and western side situated at village Budha, Tehsil Thanesar, Distt. Kurukshetra. According to the plaintiff-appellant, there was a gali (street) towards eastern side as is shown in the site plan attached with the suit and the afore-mentioned gali (street) has been in existence since the inception of the village and the same was there when the plot was purchased by his father and uncle from Room Ram. The aforementioned plot fell to his share in the family settlement and the plaintiff demolished the old construction to build a new house. The construction when reached upto the roof level, he wanted to install windows, doors, ventilators and patnala in the aforementioned walls on some portion towards the eastern side of the street but the defendant-respondents do not allow him to do the same as they themselves want to encroach upon the land. 3. The stand taken by the defendant-respondents in their written statement is that in fact there was no gali (street) towards the eastern side of the property of the plaintiff-appellant as alleged. 3. The stand taken by the defendant-respondents in their written statement is that in fact there was no gali (street) towards the eastern side of the property of the plaintiff-appellant as alleged. It was asserted that there was a property, which is owned and possessed by the defendant-respondents as has been explained by the Local Commissioner in his report dated December 13. 1990 and the compromise is dated September 24, 1990 and December. 22, 1990. It is claimed that the defendant-respondents are owner in possession of the property in dispute. The defendant-respondents revealed that another civil suit titled as Ram Pal v. Anna Ram has been filed, in which an order of stay was granted against the plaintiff-appellant. It is claimed that the plaintiff-appellant have no locus standi to file the present suit. The civil Judge on the pleadings of the parties. framed the following issues:- "1. Whether Jug Lal and Parsanna, father and uncle respectively of Atma Ram plaintiff purchased the suit plot from Room Ram son of Shri Ram Kala?.OPP. 2. If issue No. 1 is proved, then whether on account of family settlement, the suit plot fell into the share of plaintiff? OPP. 3. Whether the suit is not maintainable as alleged? OPD. 4. Whether the plaintiff has got no locus standi to file the suit? OPD. 5. Whether the plaintiff has no C of action to file the suit? OPD. 6. Whether the suit is bad under Order 1 rule 8 of the Code of Civil Procedure? OPD. 7. Whether the suit is improperly valued for the purposes of Court fee and. jurisdiction? OPD. 8. Relief." On issue No. 2 the Civil Judge reached the conclusion that the plot in dispute was purchased by Jug Lal and Parsanna from Roop Ram for a valuable consideration, there-. fore, the issue was decided in favour of the plaintiff-appellant and against the defendant-respondents. Even on issue No. 2, the Civil Judge held that in family settlement, the plot was allocated to the plaintiff-appellant. On issue No. 3 and 4, detailed evidence having been led the civil Judge concluded as under:- "From the above discussed evidence, it is thus quite evident that there lies no street adjacent to the eastern wall of the house of plaintiff towards the house of the defendants but there lies some vacant land and verandah covered by ventilator with Kacha roof. This vacant land is being used by plaintiff as source of air and light to his property from the very beginning. Earlier a Patnala of plaintiff was also in existence towards the side of the defendants but in my opinion, and as is evident from the evidence led by the defendants. the said patnala was removed by the plaintiff. But it is proved that the plaintiff is having opening like window/ventilator towards the house of the defendants which is evident from the report of the Local Commissioner. therefore, the suit of the plaintiff is maintainable and plaintiff has got locus-standi to file the same to the extent that the defendants cannot deprive the plaintiff from using natural air and light from the eastern side. Thus, both these issues are accordingly decided partly in favour of the plaintiff and partly against the defendants." 4. Issues No. 5 and 6 were decided in favour of the plaintiff-appellant. 5. As a consequence of the findings given on various issues, the suit of the plaintiff-appellant was partly decreed to the extent that the defendant-respondents were restrained from raising any construction adjacent to the eastern wall of the house of the plaintiff. which may obstruct the natural use of air and light to the house of the plaintiff-appellant. It was further directed that the plaintiff-appellant could raise the construction of his house after keeping three feet wide space adjacent to the eastern wall of his house. The suit of the plaintiff-appellant was dismissed to the extent that he was not to open any door or drainage pipe (patnala) on the side of the defendant-respondents but he was allowed to use this space of three feet for having natural air and light for his house. 6. Feeling dissatisfied with the findings given by the civil Judge, the plaintiff-appellant approached the Court of Additional District Judge, by filing an appeal under Section 96 of the Code and a cross-appeal was filed by the defendant-respondents. The Additional District Judge after making a detailed reference to the reports of the Local Commissioner dated December 13, 1990 and September 18, 1998 recorded the finding that no street existed on the spot towards the eastern side of the house of the plaintiff-appellant. The views of the Additional District Judge are evident from paras 11,12 and 13 of his judgment, which reads as under:- "11. The views of the Additional District Judge are evident from paras 11,12 and 13 of his judgment, which reads as under:- "11. The perusal of both the reports of the Local Commissioners dated 13.12.1990 and 18.9.1998 respectively shows that both the Local Commissioners have given a similar and concurrent finding in their respective reports, "that there exists no street on the spot towards the eastern side of the plaintiffs house". The reports made by the Local Commissioners are very much relevant and can be looked into because Local Commissioner were appointed by the Court to ascertain the true picture at the spot and the Local Commissioner, visited the spot after giving due notices to the parties and Local Commissioner were the most disinterested persons, hence Local Commissioners report carries great weight and importance. 12. Now coming to the other relevant material on the file. The perusal of extract of field book Ex.DW-4/B reflects that the property of the plaintiff has been shown bearing No. 29 whereas the property of defendants has been shown bearing No. 134 but no street has been shown in between then property. The learned counsel for the plaintiff has made great strees upon the photocopy of saledeed Ex.PA and Hindi translation thereof Ex.PB but no efforts were made by the plaintiff to prove this documents on the file according to the provisions of Evidence Act. Hence, Ex.PA and Ex.PB cannot be looked into evidence as the same are not admissible. Even otherwise, if Ex.PA and Ex.PB are looked into then also the dimension as shown in the saledeed do not tally with that of siteplan Ex.P.1. The length of south side in the saledeed has been mentioned as 376" whereas the same has been mentioned as 58 in the site-plan Ex.P-1. Similarly length of northern portion has been mentioned as 48 in the sale-deed, whereas the same has been mentioned as 62 in the site-plan Ex.Pl. Admittedly, except the ventilators. no door or window of the plaintiff opens towards the eastern side of the plaintiffs house and this fact also goes to indicate the non-existence of any street towards the eastern side of the plaintiffs house an alleged by the plaintiff. 13. From the above discussion, it is thus quite evident that there exists no street adjacent to the eastern wall of the house of the plaintiff towards the house of the defendants. 13. From the above discussion, it is thus quite evident that there exists no street adjacent to the eastern wall of the house of the plaintiff towards the house of the defendants. However, there lies some vacant space and courtyard covered with kacha roof, which he is exclusively owned by defendants." 7. The Additional District Judge also recorded the conclusion that the plaintiff-appellant had failed to satisfy the basic ingredients of the right of easement by prescription as envisaged by Section 15 of the Indian Easement Act, 1882 (for brevity, the Act). The views of the Additional District Judge on the issue read as under:- "So far as right of easement by piescription is concerned, for this it must be proved that the plaintiff had been enjoying easementary right for the period of 20 years without any interruption as envisaged in Section 15 of the Act. Essential ingredients of easement of prescription are that the enjoyment of the right should be open, peaceful, uninterrupted and as of right for the period of 20 years ending with two years next before the institution of the suit. In the instant case words "openly" peaceably and without interruption not used in the plaint. Use of words as of right for the last 20 years period and plaintiff objected to the use of path purports to open, peaceable and uninterrupted use only. It has not come either in evidence or in pleadings that the plaintiff has any easement right in accordance with requirements of above discussed law on easement. Reliance can be placed upon Surja v. Harchand, 1993 S.C.C. 630 (P&H) and Suresh Chand v. Hindu Mat and others, 1994(1) S.C.C. 224 (H.P.). Thus, it is held that the plaintiff has get no easement rights." 8. I have heard Mr. Sanjeev Gupta. learned counsel for the plaintiff-appellant. It is not disputed by learned counsel that there was no open street on the eastern side of the property and findings of both the Courts below on that aspect have not been assailed. 9. The only point raised by the learned counsel is that the appellant has become entitled to the right of easement by prescription. It is not disputed by learned counsel that there was no open street on the eastern side of the property and findings of both the Courts below on that aspect have not been assailed. 9. The only point raised by the learned counsel is that the appellant has become entitled to the right of easement by prescription. The learned counsel has made a reference to a Division Bench judgment of this Court in the case of Ram Niwas and others v. Rakesh Kumar and others.1 (1982)84 P.L.R. 9 to argue that once from the pleadings of the parties, it could be established that the controversy was known to the parties to the dispute and the evidence is available on record, the Court is not debarred from granting the relief. 10. I have clearly examined the submissions made by the learned counsel but do not feel persuaded to accept the same because it is well settled that unless the basic ingredients of a substantive right claimed in the suit have not been pleaded, then so much right would accrue to the plaintiff-appellant. In the present case, the learned Additional District Judge has concluded that the substantive ingredients of the right of easement by prescription have not been pleaded and it is not asserted that the plaintiff-appellant has been enjoying that rights openly, peaceably and without interruption. Section 15 of the Act reads as under :- "15. Acquisition by prescription - Where the access and use of light and air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years. and where support from one persons land or things affixed thereto has been peaceably received by another persons land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years.and where a right of way or any other easement have been peaceably and openly enjoyed by any persons claiming title thereto, as an easement, and as of right, without interruption, and for twenty years. and where a right of way or any other easement have been peaceably and openly enjoyed by any persons claiming title thereto, as an easement, and as of right, without interruption, and for twenty years. the right to such access and use of light or air-support or other easement shall be absolute. and where a right of way or any other easement have been peaceably and openly enjoyed by any persons claiming title thereto, as an easement, and as of right, without interruption, and for twenty years. the right to such access and 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 situation of the suit wherein the claim to which such period relates is contested." A bare look at Section 15 of the Act would show that in order to successfully acquire an easementary right by prescription, it has to be without interruption, peaceably as an easement for 20 years. This view has been taken by the Supreme Court in Krishna Narain Agarwal v. Carlton Hotel (P) Ltd., 1969 SC Decisions 1105. 11. Their Lordships of the Supreme Court in this regard observed as under: - "5. xxx xxx xxx xxx In any event in order to establish a lost grant it is necessary that the owner of the dominant tenement must establish that the right has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, for a long time, from which an inference of lost grant may be made. To establish the claim under Section 15 of the Indian Easement Act continuous user for 20 years of a right to do the act complained of in assertion of a title, openly; as of right peaceably and openly, must be made out. 6. The evidence, from which a lost grant may be inferred is not very different from the evidence on which a claim for prescriptive easement may be established. The appellants drainage system was connected with the respondents sewer in 1918. The user may be said to be peaceable and uninterrupted. Even if it may be assumed that it was as of right and the appellant claimed title therein, the High Court had found, and in our judgment rightly, that it could not be said to have been openly exercised. Counsel said that there existed a "man-hole" outside the gate of the appellants house and that it was cleaned once very few months. But the High Court rightly held that the existence of the "man-hole" did not indicate that the user was open." 12. Counsel said that there existed a "man-hole" outside the gate of the appellants house and that it was cleaned once very few months. But the High Court rightly held that the existence of the "man-hole" did not indicate that the user was open." 12. In view of the above, no scope is left for entertaining the appeal as no substantive question of law would arise for consideration. The judgment of this Court in the case of Surja (supra) relied upon by the learned Lower Appellate Court is fully applicable. 13. The Division Bench judgment of this court in Ram Niwass case (supra) relied upon by the learned counsel for the appellant, would have no application because the controversy has to be evident from the pleadings of the parties. However, in the preset case, no averments have been made by the plaintiff-appellant in his plaint regarding substantive facts, which constitute the right of easement by prescription as envisaged by Section 15. Therefore, I have no hesitation in rejecting that argument. For the reasons recorded above, this appeal fails and the same is dismissed.