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2012 DIGILAW 42 (HP)

Ram Lal v. Bachni Devi

2012-01-13

RAJIV SHARMA

body2012
JUDGEMENT Justice Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Sirmaur District at Nahan, H.P. in Civil Appeal No.152-CA/13 of 2000, dated 15.6.2001 reversing the judgment and decree dated 31.3.2000 passed by the learned Senior Sub Judge, Sirmaur District at Nahan in Civil Suit No.32/1 of 1993/96/99. 2.Material facts necessary for adjudication of this regular second appeal are that the appellants/plaintiffs (hereinafter referred to as “plaintiffs” for convenience sake) filed a suit for permanent prohibitory injunction against the respondents/ defendants (hereinafter referred to as “the defendants” for convenience sake) on the ground that they are owners in possession of land comprised in Khata Khatauni No.277/520, Khasra No.2698, measuring 40-14 Square metres, Khasra No.2697 measuring 19-50 square metres, Khasra No.2699 measuring 3-75 square metres, Khasra No.2700 measuring 18-72 square metres and khasa No.2701 measuring 41-80 square metres situate in Mohal Haripur, Nahan, District Sirmaur, H.P. The defendants are interfering in the suit land and claiming path through the same. 3.The suit was contested by the defendants. They claimed that they have access to four feet wide path through the suit land. The predecessors-in-interest of the plaintiffs and defendants had purchased their respective lands through sale deeds from a common vendor and the said common vendor granted a specific right of path to each of the vendees through the suit land. The path connects the plots of the defendants and Smt. Bakshi with the main Municipal Committee street. It is further averred that they have acquired a right of easement on the basis of specific grant and also by way of easement of necessity. The land was purchased by them in the year 1947. According to them by way of mutual compromise dated 7.6.1982, the plaintiffs had given to them the originally provided path by the common vendor. They have claimed the path over Khasra No.2698. 4.Replication was filed by the plaintiffs. Issues were framed by the learned Senior Sub Judge, Sirmaur District at Nahan on 2.5.1994. The suit was dismissed vide judgment dated 17.8.1998 by the learned Senior Sub Judge.The plaintiffs preferred an appeal against the judgment and decree passed by the learned Senior Sub Judge, dated 17.8.1998 before the learned District Judge, Sirmaur District at Nahan. The learned District Judge recast issues No.3 and 4 and also framed three more additional issues. The suit was dismissed vide judgment dated 17.8.1998 by the learned Senior Sub Judge.The plaintiffs preferred an appeal against the judgment and decree passed by the learned Senior Sub Judge, dated 17.8.1998 before the learned District Judge, Sirmaur District at Nahan. The learned District Judge recast issues No.3 and 4 and also framed three more additional issues. The parties were given opportunity to lead their respective evidence.\The plaintiffs tendered in evidence documents Ex.PX-1 to Ex.PX-7, whereas, documents Ex.DX-1 to Ex.DX-3 were placed on record by the defendants. The defendants also filed counter-claim stating therein that after obtaining stay, the plaintiffs took advantage of the holidays and constructed brick walls as shown in the site plan and thereby obstructed the path of the defendants through the suit land. The matter was also reported to the police. 5.The learned Senior Sub Judge decreed the suit vide judgment dated 3 1.3.2000 and the counter claim of the defendants was dismissed. The decree of permanent prohibitory injunction was also passed in favour of the plaintiffs and against the defendants restraining them from causing any sort of interference over the suit land as detailed in the judgment. The defendants preferred an appeal before the learned District Judge Sirmaur District at Nahan against the judgment and decree passed by the learned Senior Sub Judge, dated 31.3.2000. The learned District Judge Sirmaur District at Nahan allowed the appeal and the judgment and decree passed by the learned Senior Sub Judge, dated 31.3.2000 was set aside. The counter claim filed by the defendants was decreed. The plaintiffs were directed through a decree of mandatory injunction to remove the brick walls, lintel and any other construction so raised by them either before or after filing of the suit so as to enable the defendants to have egress and ingress from the municipal street and through their land, within a period of three months from the date of judgment. The plaintiffs were also restrained from causing any type of interference to the egress and ingress of the defendants in the suit land. It is in these circumstances that this regular second appeal has been preferred by the plaintiffs against the judgment and decree, dated 15.6.2001 passed by the learned District Judge Sirmaur District at Nahan. 6.This regular second appeal was admitted on the substantial questions of law No.3 and 7 framed alongwith appeal, on 19.11.2001. 7.Mr. It is in these circumstances that this regular second appeal has been preferred by the plaintiffs against the judgment and decree, dated 15.6.2001 passed by the learned District Judge Sirmaur District at Nahan. 6.This regular second appeal was admitted on the substantial questions of law No.3 and 7 framed alongwith appeal, on 19.11.2001. 7.Mr. Bimal Gupta, learned counsel for the plaintiffs on the basis of substantial questions of law framed, has strenuously argued that there is another alternative path available to the defendants. He then argued that the compromise Ex.D-L, dated 7.6.1982 does not create any right in the parties. According to him, plaintiffs No.2 and 3 were not parties to agreement/ compromise Ex.D-L, dated 7.6.1982. He lastly contended that the passage used by the defendants was interrupted in the year 1982 and the suit could not be filed in 1993. 8.Mr. Bhupender Gupta, learned Senior Advocate assisted by Mr. Neeraj Gupta, learned counsel for the defendants has supported the judgment and decree passed by the learned first appellate court. According to him the passage was given to the parties as per Ex.DX-2 and shown as per tatima annexed with this sale deed. He then argued that a compromise was arrived at between the parties whereby the plaintiffs have permitted the defendants to use that path which was earlier used by them. He further argued that the Court has appointed Advocate Commission and according to him, as per his report Ex.D-A the defendants have no alternative path. He lastly contended that the plaintiffs have not filed any objections to the report of Local Commissioner. 9.I have heard the learned counsel for the parties and gone through the pleadings carefully. 10. Since both the substantial questions of law are interlinked and interconnected, they are taken up together for determination to avoid repetition of discussion of evidence. 11. The plaintiffs have placed on record the copy of jamabandi Ex.PW-2/A pertaining to the suit land comprised in Khasra Nos.2697, 2698, 2699, 2700 and 2701 measuring 123-91 square metres. The land comprised in Khasra No.2698 measuring 40-14 square metres has been shown as gain-mumkin sehn. The plaintiffs have also placed on record the copy of missal hakiat bandobast jaded, Ex.PX-2 pertaining to the landed property of defendants comprised in Khasra Nos.2702 to 2709 measuring 128- 47 square metres. According to missal hakiat Ex.PX-3, the land comprised in Khasra Nos. The land comprised in Khasra No.2698 measuring 40-14 square metres has been shown as gain-mumkin sehn. The plaintiffs have also placed on record the copy of missal hakiat bandobast jaded, Ex.PX-2 pertaining to the landed property of defendants comprised in Khasra Nos.2702 to 2709 measuring 128- 47 square metres. According to missal hakiat Ex.PX-3, the land comprised in Khasra Nos. 2697, 2698, 2699, 2700 and 2701 is shown in exclusive ownership and possession of the plaintiffs. Khasra Nos.2161/5 min (old), 2161/4 min (old) and 2161/3 min (old) were in joint ownership of one Shri Sewa Ram, father of DW-4, Shri Phool Chand who had sold these different portions of joint land to the predecessor-in-interest of plaintiffs, deceased Sant Lal, predecessor-in-interest of defendants, deceased Kartara as well as one Shri Inder Singh, husband of DW-6, Smt. Bakshi Devi vide sale deeds Ex.DC, Ex.DD and Ex.DE. These sale deeds are in Urdu language and their Hindi translations have also been placed on record. The Hindi translation of the sale deed of Inder Singh, husband of DW-6, Smt. Bakshi Devi is Ex.DX-1. The Hindi translation of the sale of deed of predecessor-in-interest of plaintiffs, Shri Sant Lal is DX-2. The Hindi translation of the sale deed of predecessor-in-interest of the defendants, deceased Kartara is Ex.DG. These sale deeds were executed in the year 1947. There is a reference in Ex.DG sale deed that the passage to the house of vendee Sant Lal would be from the road and this passage would further lead to the plots of vendees Kartara and Inder Singh and to their houses. The same position is reflected in tatima annexed with sale deed Ex.DX-2. This passage has been shown by way of arrow. 12. According to the written statement, the path was being used by the defendants till 1982. The plaintiffs have blocked the passage of the defendants through the suit land. The matter was amicably settled vide compromise dated 7.6. 1982, Ex.D-L. 13. Plaintiff while appearing as PW-2 has admitted his signatures on Ex.D-L though he has stated that the dispute pertains to use of water. The plaintiffs have agreed in the year 1982 to provide the passage to the defendants in the shape of stairs through the suit land. According to PW-2, the defendants are having an alternative path which goes behind the Hathi Ki Grave to the municipal lane. 14. The plaintiffs have agreed in the year 1982 to provide the passage to the defendants in the shape of stairs through the suit land. According to PW-2, the defendants are having an alternative path which goes behind the Hathi Ki Grave to the municipal lane. 14. Ajeet Singh, DW-5 has stated that there is no passage except the passage through the suit land to go to the Municipal street. He has further stated that about four years back the plaintiffs have closed the passage. They have to go to the main road through a drain which is about 11/2’ wide and cannot be used for taking heavy/big luggage etc. DW-6 has supported the version of defendants. According to her, her husband Inder had also purchased the land from the same owner from whom the predecessor-interest of the plaintiffs purchased the land. The Court has appointed Shri Prithivi Singh, Advocate as Local Commissioner. He has submitted the report Ex.DA. The Local Commissioner has also been examined by the defendants as DW-1. The Local Commissioner has categorically stated in his report Ex.D-A that there is no other path available to the defendants. Now the passage has been blocked by the plaintiffs and the defendants have to go to the main street through Khasra No.2711. Khasra No.2711 is owned by Som Dutt etc. and in case Som Dutt does not permit the defendants to use the passage, the defendants have no other passage. However, in the concluding portion of the report Ex.DA, the Local Commissioner has categorically stated that except the path through the suit land, there is no other passage available to the defendants. The plaintiffs have not filed any objections to the report filed by the Local Commissioner. In case they were aggrieved by report Ex.DA, it was open to them to file objections. In other words, they have accepted the report Ex.DA. It has come in the statements of DW-5 and DW-6 read with Ex.DA and Ex.DL that the defendants had been using the passage through Khasra No.2698 from 1947 to 1982 and it was only in 1982 that the path was interrupted and as per compromise, Ex.DL, they have been using this passage till 1993 when the plaintiffs dismantled the stair case. In these circumstances, it cannot be said that the counter claim filed by the defendants was barred by limitation. 15. In these circumstances, it cannot be said that the counter claim filed by the defendants was barred by limitation. 15. The plaintiffs have permitted the use of passage to the defendants from 1947 to 1982. It was only interrupted in 1982 and thereafter compromise was arrived at between the parties and after that the defendants had been using the passage till 1993. The defendants have acquired right to use the passage by way of grant and the provisions of Section 11 of the Transfer of Property Act ipso facto will not be applicable as argued by Mr. Bimal Gupta, learned counsel for the plaintiffs. Mr. Bimal Gupta has also argued that in the earlier part of the sale deed no passage has been given, but there is reference of the same towards the end. However, the sale deed has to be read as a whole, more particularly, in view of the tatima whereby there is a mention of providing the path as per arrow head annexed with Ex.DG. Moreover, the defendants have specifically pleaded the right of path by easement of necessity and also by way of grant. The defendants have duly proved the easement by necessity and grant, as discussed above. 16. Consequently, the defendants have amply proved that they have no other path except the passage through Khasra No.2698. The learned first appellate Court has correctly appreciated the oral as well as documentary evidence while allowing the appeal and dismissing the suit filed by the plaintiffs and decreeing the counter claim filed by the defendants. 17 Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this regular second appeal and the same is dismissed. The pending application(s), if any, also stands disposed of. No costs.