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2014 DIGILAW 1280 (PNJ)

Nahar Singh v. Charan Singh

2014-09-10

INDERJIT SINGH

body2014
JUDGMENT : Inderjit Singh, J. 1. This regular second appeal has been filed by Nahar Singh-appellants/defendants against Charan Singh-respondents/plaintiffs challenging the judgment and decree dated 15.1.2010 passed by the learned Additional District Judge, Patiala, whereby the appeal filed by the appellants against the judgment and decree dated 20.3.2009 passed by the learned Civil Judge (Junior Division), Nabha has been dismissed. 2. It is mainly stated in the appeal that the judgments and decrees passed by the first appellate Court and the lower Court are wholly wrong, illegal, perverse, against the facts and law and are liable to be set side and the suit of the plaintiffs/respondents is liable to be dismissed. 3. Notice of motion in this case was issued to the respondents, who appeared through counsel and contested the appeal. 4. The brief facts of the case are that Charan Singh and Shamsher Kaur-plaintiffs/ respondents herein filed a suit against Nahar Singh, Jagroop Singh, Bakhshish Singh and Darbara Singh-defendants/appellants herein for permanent injunction restraining the defendants from blocking the Pahi and restraining the plaintiffs from using the Pahi (3 Karams wide throughout) starting from the north-west corner of Khasra No. 471 and going along side the western edge of Khasra numbers as described in the plaint. It is stated in the plaint that the plaintiffs are owners in possession of land measuring 35 Bighas as fully detailed in the head note of the plaint, which was purchased by plaintiff No. 1 and Dharam Singh (sons of plaintiff No. 2) from defendants No. 1 to 3, vide registered sale deed dated 12.6.1975. After the death of Dharam Singh, his share was succeeded by plaintiff No. 2 and thus, the plaintiffs are owner in possession of the suit land in equal shares. The suit land is land locked on all sides i.e. on one side by land of Village Ichhewal, on second side land of Village Rohti Basta and on the remaining sides the land of the defendants. It is also stated in the plaint that the Pahi, as depicted in the field map, is the only source of ingress and egress from the land of the plaintiffs. The said Pahi is being used since the date of its purchase, as it was earlier being used by defendants No. 1 to 3. Hence, the plaintiffs are using the said Pahi as an easement of necessity. The said Pahi is being used since the date of its purchase, as it was earlier being used by defendants No. 1 to 3. Hence, the plaintiffs are using the said Pahi as an easement of necessity. It is stated that the defendants are threatening that they would not allow the plaintiffs to use the Pahi. 5. The defendants' case in the written statement is that the plaintiffs purchased some land from them. The factum of the land measuring 35 Bighas to plaintiffs being land locked was denied. It was also averred that the plaintiffs have wrongly shown the Pahi in the land of the defendants. In fact, a passage on the side of Village Ichhewal is in existence to approach the land of the plaintiffs, and the plaintiffs are using the same. 6. The learned trial Court framed the issues and both the parties produced the evidence. The learned Civil Judge (Junior Division), Nabha in his judgment dated 20.3.2009 after appreciating the evidence found that as per sale deed dated 12.6.1975 Ex.P.1, plaintiff No. 1 Charan Singh and Dharam Singh (sons of plaintiff No. 2) purchased land from defendants No. 1 to 3. The Jamabandi also shows the defendants to be in possession of their land. The other Jamabandi Ex.P.2 shows the plaintiffs as owners in possession. Local Commissioner was appointed and was directed to visit the spot and report regarding the exact position of Pahi in question, along with its width and length. Ex.P.4 is an original notice to both the parties. A notice was given for demarcation of land on 7.11.2001, but the defendants refused to accept the notice. Ex.P.5 is the report of the Local Commissioner which shows that a Pahi starts from Khasra No. 471 and passes through Khasra numbers 470, 464, 463, 457, 458, 452, 451 and thereafter it enters into Khasra No. 446. Its total length was reported to be 400 Karams and 3 Karams as width. As per the record the Pahi exists in the land of the defendants and enters Khasra No. 446, which stands in the ownership of the plaintiffs. Ex.P.6 is site plan prepared by the Local Commissioner, which shows the existence of Pahi as per Ex.P.5. 7. A perusal of Ex.P.11 shows that Khasra numbers of the plaintiffs are surrounded by Khasra Nos. 226 and 225 on one side. Ex.P.6 is site plan prepared by the Local Commissioner, which shows the existence of Pahi as per Ex.P.5. 7. A perusal of Ex.P.11 shows that Khasra numbers of the plaintiffs are surrounded by Khasra Nos. 226 and 225 on one side. Khasra No. 226 stands in the name of Jangir Kaur and Khasra No. 225 and 226 stand in the name of Hamir Kaur of Village Ichhewal. The Court of learned Civil Judge (Junior Division), Nabha found from the record, revenue record and other evidence that the suit land is surrounded by various other persons including the land of the defendants and no other Pahi is in existence except the Pahi in dispute. The Court held that DW-1 in cross-examination admitted that the land of the plaintiffs is surrounded by the land as mentioned in the plaint. He further admitted that the plaintiffs were not called at the time of partition which took place about four years ago i.e. in the year 2004. The defendants/appellants now claim that after the partition, the new Pahi has been left by the revenue authorities. The learned lower Court after going through the record held that there is no such pleading regarding carving out of fresh Pahi by the revenue authorities to go to the land of the plaintiffs. 8. At the time of arguments also, learned counsel for the appellants admitted that neither the plaintiffs were made party in the partition proceedings before the revenue authorities nor in the civil suit these facts have been brought by way of amendment in the written statement. Learned counsel for the appellants only argued that now as the revenue authorities have carved out a fresh Pahi, therefore, the plaintiffs are not entitled to the relief. Learned counsel for the appellants argued that the judgments and decrees passed by the Courts below are perverse, illegal and not as per law. Learned counsel for the appellants argued that revenue authorities have already left a Pahi almost in between the land of the defendants and after the carving out of the new Pahi by the revenue authorities, there is now no easement of necessity applicable to the Pahi in dispute. 9. Learned counsel for the appellants argued that revenue authorities have already left a Pahi almost in between the land of the defendants and after the carving out of the new Pahi by the revenue authorities, there is now no easement of necessity applicable to the Pahi in dispute. 9. On the other hand, learned counsel for the respondents argued that neither the plaintiffs were made party in the revenue proceedings nor this fact was brought to the notice of the Court by amending the pleadings and this Pahi has been carved out during the pendency of the proceedings. Actually, there is no Pahi on the spot to go to the land of the plaintiffs and there is agricultural land being irrigated by the defendants which have been shown as new Pahi in the revenue record. 10. From the record and as per the evidence on the record, I find that the plaintiffs have duly proved the existence of the Pahi in dispute, which is used by them to go to their agricultural land. It is also proved on the record that there is no other Pahi attaching the land of the plaintiffs from where the plaintiffs can go to their land. Therefore, the Pahi in dispute has been left at the time of purchasing of land and which is used by the plaintiffs as easement of necessity. Only on the ground that a new Pahi has been carved out by the revenue authorities, the suit of the plaintiffs cannot be dismissed because neither the plaintiffs were party to the revenue proceedings nor these have been brought in the pleadings of the defendants in the present suit. Therefore, the plaintiffs could not get the opportunity to lead the evidence regarding the same. 11. Therefore, from the above, I find that the findings given by the learned lower Court are correct and are as per law. 12. The learned lower appellate Court also upheld the judgment and decree passed by the learned Civil Judge (Junior Division), Nabha after passing legal order and re-appreciating the evidence. 13. Learned counsel for the appellants failed to show which material evidence has not been discussed or which material evidence has been misread by the Courts below. The judgments passed by the Courts below cannot be held as perverse. There are concurrent findings of the Courts below after appreciating the evidence. 13. Learned counsel for the appellants failed to show which material evidence has not been discussed or which material evidence has been misread by the Courts below. The judgments passed by the Courts below cannot be held as perverse. There are concurrent findings of the Courts below after appreciating the evidence. No substantial question of law arises in the present appeal. Both the judgment and decrees being correct and as per law do not require any interference from this Court and the same are upheld. 14. Finding no merit in the present regular second appeal, the same is dismissed.