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2012 DIGILAW 286 (HP)

Sacred Heart High School, Sidhbari v. Prem Lata

2012-05-15

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 16.11.2002, passed by the learned District Judge, Kangra at Dharamshala (HP) in Civil Appeal No. 92-D/XIII/2001. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondents-plaintiffs (hereinafter referred to as "the plaintiffs" for the sake of convenience) had filed a suit for declaration, permanent prohibitory injunction and possession against the appellants defendants (hereinafter referred to as "the defendants" for the sake of brevity). 3. Case of the plaintiffs, in a nut-shell, is that they along-with others are co-owners in possession of the land comprised in Khasra No. 89, Khatauni Nos. 246, 247 and 248, Khasra Nos. 1636/1532, 1638/1532, 1713/1635 and 1714/1635, measuring 0.21.72 hectares, to the extent of 139/16858 shares, situated in Mohal Sidhpur, Mauza Khaniyara, Tehsil Dharamshala, District Kangra (HP). The plaintiffs are coming in possession of the land comprised in Khasra No. 1636/1532, just opposite to the land bearing Khasra No. 1585/1468, belonging to the defendants and they have been using the path existing on the boundary of the land bearing Khasra No. 1636/1532 and that of Khasra No. 1585/1468, just on the edge of the Kuhal, running through Khasra No. 1479, as shown in red colour in the attached map, prepared on the Aks Tatima, Annexure "A", which connects the public path bearing Khasra No. 1586/1468 on the one end and Khasra No. 1638/1532 on the other end, situated in Mohal Sidhpur, Mauza Khanyara, Tehsil Dharamshala, District Kangra, H.P., as per Jamabandi for the year 1993-94. The plaintiffs have every right to continue to use this path without any interruption/hindrance in future. The defendants have no right to close/block the same in any manner and the construction of stone danga wall by the defendants in the land of plaintiffs bearing Khasra No. 1636/1532 as per Annexure A-1 is illegal and unauthorised. The act of encroachment of the land of the plaintiffs by the defendants has resulted in blockade of the passage of the plaintiffs shown in red colour from point E to F in the map which prevents the plaintiffs to have an entry as well as exit to and from their land comprised in Khasra No. 1636/1532. They have also sought permanent prohibitory injunction against the defendants, their servants, workman etc. They have also sought permanent prohibitory injunction against the defendants, their servants, workman etc. restraining them from constructing the danga wall as well as blocking/closing the passage of the plaintiffs and also for removing the danga wall already constructed illegally and un-authorisedly and to restore the land to its original shape. In the alternative, they have also prayed for possession of the portion of land of Khasra No. 1632/1532 shown in dotted blue lines from mark A to B in the attached plan. According to the plaintiffs, they are co-sharers in the land detailed herein above. The same has been purchased by them vide registered sale deed dated 22.06.1973. The matter was also reported to the Naib Tehsildar, Dharamshala. The defendants stopped the construction, but on 30.12.1996, they again started the construction of the wall. 4. The suit was contested by the defendants. According to the defendants, no Kuhl and path ever existed on the spot leading from public path to the land of plaintiffs. The land of the defendants was properly demarcated, which was covered by boundary walls from three sides. North-East side of the land of the defendants, school was open. To prevent the entry of stray cattle, a boundary wall was constructed. According to the defendants, they have not encroached upon the land of the plaintiffs nor the boundary wall extended towards their land. 5. Replication was filed by the plaintiffs. Learned Senior Sub Judge, Kangra at Dharamshala, H.P. framed the issues on 16.05.1998. The suit was decreed on 09.05.2001. The defendants preferred an appeal before the learned District Judge, Kangra at Dharamshala (HP). The same was dismissed on 16.11.2002. Hence, this Regular Second Appeal. 6. This Regular Second Appeal was admitted on the following substantial questions of law on 16.10.2003: 1. Whether easementary right can be claimed by the plaintiffs without admitting the ownership and possession of the defendants over the land? 2. Whether the plaintiffs could claim a right to use a path without leading any evidence or in the pleadings giving the description of the land sufficient to identify it by identifying its boundaries or the Khasra numbers in the record of settlement or survey as required under Order 7 Rule-3 of C.P.C.? 7. Mr. Virender Rathore, learned counsel for the appellants has strenuously argued that both the courts below have mis-construed and mis-read the oral as well as documentary evidence. 7. Mr. Virender Rathore, learned counsel for the appellants has strenuously argued that both the courts below have mis-construed and mis-read the oral as well as documentary evidence. According to him, the plaintiffs have not given sufficient description of the land to identify the boundaries of Khasra numbers and the plea of easementary right could not be taken by the plaintiffs without admitting the ownership and possession of the defendants over the suit land. 8. Mr. Ashwani Kumar Sharma, learned counsel for the respondents has 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 records carefully. 10. Since both 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. 11. Learned trial Court has declared the plaintiffs to be the owners in possession of the suit land while deciding issue No. 1. 12. Plaintiff Rajinder Kumar has appeared as PW-1. He has testified that in the year 1974, they constructed a boundary wall on three sides of the land and the fourth side was kept open as there was Kuhal and passage to their land. The path leads from the public path on edge of the Kuhal up to their land. According to him, they had been using the path in question since 1962-63 and in the month of October, 1996, the defendants forcibly encroached upon the Kuhal and the path was blocked. 13. PW-2, Jagdish Chand has testified that in the year 1976, he constructed the plinth in the land of the plaintiffs. He carried all the construction material to the land through the passage leading from the public path, situated on the edge of Kuhal and the said path has been blocked by raising wall by the defendants. 14. PW-4, Hem Raj, Field Kanungo has proved Ex. PW- 4/A. 15. According to PW-5, Ram Swaroop Dutta, there was a path to the land of the plaintiffs, situated on the edge of the Kuhal, which starts from public path upto the land of the plaintiffs and the said path has been blocked by the defendants by constructing a boundary wall in the year 1996. 16. PW- 4/A. 15. According to PW-5, Ram Swaroop Dutta, there was a path to the land of the plaintiffs, situated on the edge of the Kuhal, which starts from public path upto the land of the plaintiffs and the said path has been blocked by the defendants by constructing a boundary wall in the year 1996. 16. DW-1, Smt. Reena, Principal of Sacred Heart School has testified that she worked as a Principal of the School from 1996 to May, 1998. According to her, the defendants had purchased the land in the year 1967 and during 1996-97, when the defendants decided to start Hindi Medium School, they constructed a boundary wall around their land. The defendants moved applications Ex. DW-2/A and Ex. DW-2/B for demarcation by the Revenue Authority. The demarcation was conducted and after demarcation, the defendants constructed the boundary wall on their own land. According to her, there was no path existing on the spot nor any path was blocked by the defendants. 17. Now, the Court will advert to the documentary evidence led by the parties. According to Ex. P-1, the land bearing Khasra No. 1479 is recorded as Gair-Mumkin-Kuhal. In Ex. P-2, the land bearing Khasra No. 1586/1468 is recorded as Gair-Mumkin-Rasta. In Ex. P-3, the defendant No. 1 is recorded as owner in possession of land bearing Khasra Nos. 1585/1468 and 1587/1468. Ex. P-4 is the copy of Aks Shajra Kistwar, wherein lands of the parties and public path are shown. Ex. P-5 is the copy of Aks Shajra Kistwar, wherein the path in question leading from public paths to the land of plaintiffs is shown. 18. Mr. Virender Rathore, learned counsel for the appellants has relied upon the demarcation report Ex. PW-4/A. This report has been proved by PW-4 Sh. Hem Raj, Field Kanungo. He has found that during settlement, the revenue record was wrongly prepared on the basis of wrong measurements. He carried out the demarcation on the spot. He found that position of the road on Khasra No. 1423 was changed in the record and maind on Khasra Nos. 1586/1468 and 1587/1468 was recorded 57 metres, whereas actually it was 54 metres. The South-Western maind in Khasra No. 1585/1468 was recorded 37 metres, whereas it was 35 metres on the spot. According to him, this has caused dispute between the parties. 1586/1468 and 1587/1468 was recorded 57 metres, whereas actually it was 54 metres. The South-Western maind in Khasra No. 1585/1468 was recorded 37 metres, whereas it was 35 metres on the spot. According to him, this has caused dispute between the parties. He has also testified that after partition, new Musabi had been prepared and the dimensions of land in the Musabi did not tally with the actual dimensions on the spot. The plaintiffs have given the description of the suit land on the basis of map and by giving Khasra numbers. 19. What emerges from the facts enumerated herein above, is that on the boundary of Khasra No. 1636/1532 and land owned by the defendants comprised in Khasra No. 1587/1468, there is a path for going to their land comprised in Khasra No. 1636/1532. This path connects public path of Khasra No. 1586/1468. The path passes along-with the water cannel (Kuhal) and reflected in Tatima, Ex. P-5 by points F and E. The land comprised in Khasra No. 1479 has been recorded as Gair Mumkin Kuhal owned by the Gram Panchayat. The plaintiffs have duly proved that there was a Kuhal on the spot and also existed a common public path between two Khasra numbers owned by the defendants. This path was used by the plaintiffs for going to their land comprised in Khasra No. 1636/1532 through a maind. The same has been obstructed by the defendants by raising a wall. 20. The plaintiff has claimed mandatory injunction, seeking removal of the wall raised by the defendants. It is evident from the reading of the pleadings that primarily the case of the plaintiff was that a path existed, which he had been using to reach his land and the same was blocked by the defendants. Thus, the claim was not based upon the right of easement only, as argued by Mr. Virender Rathore, learned counsel for the appellants. The plea of easementary rights has neither been taken in the head note of the plaint nor in the relief clause. Both the Courts below have correctly appreciated the oral as well as documentary evidence. Consequently, there is no substantial question of law involved in this Regular Second Appeal. 21. Virender Rathore, learned counsel for the appellants. The plea of easementary rights has neither been taken in the head note of the plaint nor in the relief clause. Both the Courts below have correctly appreciated the oral as well as documentary evidence. Consequently, there is no substantial question of law involved in this Regular Second Appeal. 21. Accordingly, in view of the observations and discussions made herein above, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.