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2014 DIGILAW 1976 (HP)

Rajinder Kumar v. Jagdish Chand

2014-12-23

RAJIV SHARMA

body2014
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Hamirpur, H.P. dated 14.10.2003, passed in Civil Appeal No.34 of 1997. 2. Key facts, necessary for the adjudication of this regular second appeal are that the respondent Jagdish Chand instituted a suit in the Court of learned Sub Judge (II), Hamirpur, for declaration and permanent injunction against the appellants-defendants (hereinafter referred to as the defendants and proforma defendant, namely Dev Raj, for the convenience sake). According to the facts enumerated in the plaint, the land bearing Kh. No. 158 was divided into three parts i.e. Kh. No. 158/1, 158/2/1 and 158/2/2. It was in the ownership and possession of predecessor of defendants No. 4(i) to 4(v), namely Sh. Puran Chand. The portion of the same was sold to defendants No. 1 to 3, namely Rajinder Kumar, Pushpam Devi and Dinu Ram. Kh. No. 158/2/1 comprising the disputed path, came to the share of defendant No. 1, Sh. Rajinder Kumar. The house of the plaintiff as well as the proforma defendant was situated over land comprised in Kh. No. 150 and 152. They had access to their house by use of the said path over the land of Rajinder Kumar for the last 20 years, continuously, openly, peacefully and without any interruption from any quarter including the defendants as an easement of way and as of right. They have acquired easementary right over the path by way of prescription. The path was shown in Aks Tatima Mashmula with letters 'A', 'B', 'C'. From point 'A' to point 'X', there existed a public path between Kh. No. 117 and 149 and also a public path from point 'A' to 'Y' which passes through Kh. No. 114 and on the western meend of Kh. No. 158/2/1. The path, according to the plaintiff, was also beyond point 'Y' and goes to Tika Didwin. The defendants have no legal right to cause any obstruction in the path in question. The defendants in collusion with each other have started interfering with the path. The matter was also reported to the local Panchayat. The Panchayat visited the spot on 29.1.1991. It is, in these circumstances, suit for declaration and permanent injunction to the effect that plaintiff and proforma defendant have acquired easementary right of path by way of prescription was filed. 3. The matter was also reported to the local Panchayat. The Panchayat visited the spot on 29.1.1991. It is, in these circumstances, suit for declaration and permanent injunction to the effect that plaintiff and proforma defendant have acquired easementary right of path by way of prescription was filed. 3. The suit was contested by defendants No. 1,2 & 4. They have filed the written statements. According to them, there was no path in existence over Kh. Nos. 158, 117 and 150 being used by the plaintiff and proforma defendant. It was denied that path existed over Kh. No. 158/2/1. The land in Kh. No. 158/2/1 was stated to be in the ownership and possession of defendant No. 1. According to them, there was alternative path available on the spot from the eastern side of the house of the plaintiff, which he was using since long to have access to his house. 4. The replication was filed by the plaintiff. The trial Court framed the issues on 10.12.1991. The suit was decreed by the learned Sub Judge (II), Hamirpur on 29.8.1997. The defendants filed an appeal before the learned District Judge, Hamirpur against the judgment and decree dated 29.8.1997. The learned District Judge, Hamirpur dismissed the same on 14.10.2003. Hence, this regular second appeal. 5. The regular second appeal was admitted on the following substantial questions of law: "1. Whether the impugned judgment and decree is the result of non-consideration of the provisions of Section 15 of the Easements Act, 1882? 2. Whether the impugned judgment and decree can be sustained when the findings given by the learned trial Court with respect to the documents Exts. P1 and P2 having not been assailed by the plaintiff ? 3. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as mis-appreciation of the law laid down by this Hon'ble Court reported in 2000 (1) S.L.J. 404? 4. Whether the learned lower appellate court was right in reversing the findings of the learned trial court especially when there were no cross-objections or appeal having been filed by the plaintiff ?" 6. Mr. Ramakant Sharma, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that both the Courts below have not taken into consideration provisions of Section 15 of the Easements Act, 1882. Mr. Ramakant Sharma, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that both the Courts below have not taken into consideration provisions of Section 15 of the Easements Act, 1882. He has contended that the documentary evidence placed on record has not been correctly appreciated by both the Courts below. He has also contended that the findings recorded by the learned trial Court could not be set aside by the first appellate Court since no cross-objection or appeal was filed by the plaintiffs. On the other hand, Mr. Rajnish K. Lal, Advocate, has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned Advocates for the parties and gone through the records of the case carefully. 8. Defendant Puran Chand has died during the pendency of this regular second appeal and his legal heirs were brought on record vide order dated 4.1.2014 in CMP(M) No. 12117 of 2013. 9. PW-1 Jagdish Chand has testified that his house was situated over Kh. Nos. 150 & 152. The disputed path starts from Kh. No. 150, 152 and goes up to Kh. No. 158. The house was constructed in the year 1963. They were using this path for the last 28-29 years. This path was only egress and ingress to their house. They continued to use this path till January, 1991. In the month of January, 1991, the defendants obstructed the path in question and the matter was reported to the Panchayat. The path comprised in Kh. No. 158/2/1 is between his house and the house of defendants, there is a distance of 10-15 meters, which only constitutes the path. He has denied the suggestion that from his house, he takes the 'Sare-am rasta' towards the east. He has denied that from the house of Rajinder, the 'Sare-am rasta' is at a distance of 100 yards, but has stated that the same is at a distance of 30 yards. His house faces towards the east. 10. PW-2 Gian Chand stated that the house of Nathu was constructed 25/30 years ago. Nathu had been using the path in dispute for the last 28-30 years. There was no path except the path in dispute for the house of Nathu Ram. The path meets with the 'Sare-am rasta'. Neither Nathu Ram nor his sons were ever stopped. 10. PW-2 Gian Chand stated that the house of Nathu was constructed 25/30 years ago. Nathu had been using the path in dispute for the last 28-30 years. There was no path except the path in dispute for the house of Nathu Ram. The path meets with the 'Sare-am rasta'. Neither Nathu Ram nor his sons were ever stopped. The defendants have blocked this path in dispute by constructing a wall and house over it. The complaint was made by the plaintiff. The members of Panchayat visited the spot and directed the defendants not to obstruct the path. The plaintiff goes to his house through this path. 11. PW-3 Beer Singh deposed that the house of the plaintiff was constructed 30/32 years ago. There was path which the plaintiff has been using since the time of construction of his house. Rajinder constructed the house 4-5 years ago. The path in dispute was closed in January, 1991. There was no other path available to the plaintiff. This is the only path, the plaintiff uses to go to his house. The path in dispute is 20-25 feet in length and 2 feet in width. He has denied the suggestion that there was path in front side of the house of the plaintiff which leads to Bazar. 12. PW-4 Jai Dev has also supported the statement of PW-2. According to him, the path was used by the plaintiff for the last 30 years. 13. PW-5 Desh Raj testified that the house of the plaintiff was constructed by Sh. Nathu Ram, father of the plaintiff, in the year 1963. The path is 7 karams in length and 2 feet in width. The defendants also used this path. Towards the east side of the house of the plaintiff, there are fields of rice. From that side, there is no path which leads to the house of the plaintiff. The plaintiff had been using this path. 14. DW-1 Puran Chand testified that the plaintiff has his own path for egress and ingress to his house. In his cross-examination, he has shown ignorance that the house of the plaintiff was constructed in the year 1963. He has, however, admitted that Kh. No. 158 has been partitioned into 3 plots, of which Kh. No. 158/2/1 is owned by Rajinder. He has admitted that now there was a path from the land of the defendant comprised in Kh. In his cross-examination, he has shown ignorance that the house of the plaintiff was constructed in the year 1963. He has, however, admitted that Kh. No. 158 has been partitioned into 3 plots, of which Kh. No. 158/2/1 is owned by Rajinder. He has admitted that now there was a path from the land of the defendant comprised in Kh. No. 158/2/1. 15. DW-2 Rajinder Sharma deposed that he purchased suit land in the year 1986. He has constructed his house over it in the year 1988. Previously, there was no path in the suit land. The plaintiff used to take the path situated in the eastern direction. From the western side of the house of the plaintiff, there is no path which passes through his land. In his cross-examination, he has admitted that the house of the plaintiff was constructed 32/33 years back. It was situated on Kh. No. 150 & 152. 16. DW- 3 Prabh Dayal deposed that the plaintiff used the path which goes from the eastern side of his house. The house of the plaintiff was constructed 30/35 years ago. 17. DW-4 Bal Raj, deposed that the plaintiff goes to his house from the path which is in the eastern side. Adjacent to the house of Rajinder, there was a path which leads to the house of Rajinder. He has admitted that the house was constructed by plaintiff's father in the year 1963. He also admitted that from the 'Sare-am rasta', one path leads to the house of Rajinder. 18. It is not in dispute that the house of the plaintiff is situated on land bearing Kh. No. 150/152. Kh. No. 158 was divided into 3 parts i.e. 158/1, 158/2/1 and 158/2/2. Kh. No. 158/2/1 was owned by defendant Rajinder Kumar. He has constructed the house in the year 1988. According to the 'Misal haquiyat' for the year 1970-71 Ext. P-3, DW-4 Puran Chand was the owner of the land. According to the remarks column, a path existed over a portion of the land bearing Kh. No. 158. This path, as per the entries in remarks column of Ext. P-3, while leading to Kh. No. 117, goes to Kh. No. 150 over which the house of the plaintiff is in existence. According to 'Aks Shajra' Ext. P-2, the path is shown in existence in Kh. No. 158 in "L" shape. 19. No. 158. This path, as per the entries in remarks column of Ext. P-3, while leading to Kh. No. 117, goes to Kh. No. 150 over which the house of the plaintiff is in existence. According to 'Aks Shajra' Ext. P-2, the path is shown in existence in Kh. No. 158 in "L" shape. 19. According to the ocular statements of plaintiff and his witnesses, the house was constructed in the year 1963. The plaintiff had been using this house for more than 28-29 years. He has no other access, other than the existing disputed path, to reach his house. The plaintiff has specifically denied the existence of alternative path on the eastern side of his house. DW-3 Prabh Dayal and DW-4 Bal Raj have admitted that on the eastern side of the house of the plaintiff, there exists the fields of paddy crop. The plaintiff has also reported the matter to the Panchayat. It has come in the statement of PW-2 that the members of the Panchayat have visited the spot. Defendant No. 4 has appeared as DW-1. He has admitted in his cross-examination that the only passage in existence over the land over Kh. No. 158/2/1 is used by the plaintiff to reach his house. 20. Now, as far as the alternative path suggested by the defendant on the eastern side is concerned, there exist paddy fields. Thus, on the basis of the ocular and documentary evidence, the disputed path is the only path available to the plaintiff to reach his house. The revenue record also supports the case of the plaintiff, more particularly, as per 'Misle Haquiqat' for the year 1970-71 Ext. P-3 and Ext. P-2 copy of 'Aks Shajra'. The plaintiff had been using this path for the last more than 20 years, peacefully and without any interruption or disruption. The path has been obstructed by the defendants. The Courts below have correctly appreciated the oral as well as documentary evidence placed on record. It is the duty of the first appellate Court to appreciate the documentary evidence, if there was misreading of the revenue entries by the trial Court. The substantial questions of law are answered accordingly. 21. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending applications, if any. Appeal dismissed.