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2014 DIGILAW 502 (HP)

Satya Bala v. Onkar Chand

2014-04-30

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, J. The defendants are the appellants before this Court who have preferred appeal against the judgment and decree dated 21.6.2002 passed by learned Addl. District Judge, Hamirpur in Civil Appeal No.90/95 who not only reversed the judgment and decree dated 31 .5.1995 passed by the learned trial Court but also dismissed the cross-appeal. 2. The facts as necessary may be stated thus; the plaintiff/respondent claimed himself to be owner in possession of land comprised in khata No.230/1, khasra No.854, measuring 1 kanal 9 marlas, as per copy of Register Karbai, situated in Tika Hatli, Mauza Galore, Tehsil Nadaun, District Hamirpur, H.P. (to be called hereinafter as suit land). The defendants were owners of Khasra No.853. Both these Khasra numbers were previously part of Khasra No.1564/738 old. Khasra No.853 is on the main road and there is a path through khasra No.853 to khasra No.854. This path has been in use of the plaintiff from the time of his ancestors and therefore, he has easementary right of passage through khasra No.853 for the last more than 100 years. 3.It was averred that previously khasra No.1564./738 was measuring 1 kanal 17 marlas out of which 8 marlas of land was sold by the predecessor-in-interest of the plaintiff to defendant No.1 and one Smt. Bimla Devi while the remaining 1 kanal 9 marlas of land transferred to the plaintiff. The plaintiff and his predecessor-in interest were using the path from the road to the suit land through khasra No.853, from time immemorial. This path was alleged to be necessary for egress and ingress to the suit land for its enjoyment and there was no other alternate path to the suit land and this path has been shown in red colour having width of seven feet in the site plan attached with the plaint. This path was also claimed by the plaintiff as easement of necessity. 4.It was averred that the defendants have collected the material for the purpose of raising construction over the land comprised in khasra No,853 and have openly threatened the plaintiff to block the passage leading to the suit land. The defendants were requested not to block the path to the suit land but of no avail, hence this suit. 5.The suit was contested by the defendants on the grounds of estoppel and want of cause of action. The defendants were requested not to block the path to the suit land but of no avail, hence this suit. 5.The suit was contested by the defendants on the grounds of estoppel and want of cause of action. Maintainability of the suit has also been disputed by the defendants on the ground that the plaintiff had filed suit No.234-I of 1989 titled as Onkar Chand versus Satya Bala etc. on the same cause of action and therefore, this suit was liable to be dismissed. According to the defendants the plaintiff cannot take benefit of his own wrong because the area of the suit land is 1 kanal 9 marlas but it was found 4 to 5 marlas less on demarcation. It was averred that the plaintiff intentionally and deliberately does not want the correct area of land to be measured because a path exists to the suit land from its Western side. 6.It was further averred that with respect to the raising of construction over the land comprised in khasra No.853 they raised construction of double storey structure over a portion of khasra No.853 in 1982-83 without any objection from the predecessor-in­interest of the plaintiff and when in the year 1989 they further started raising construction, the plaintiff obstructed them and filed a civil suit No.234-I of 1989. The defendants denied the existence of any path in khasra No.853. According to the defendants no path was ever used by the plaintiff through khasra No.853 and the plaintiff is trying to obtain benefit from the wrong measurement of the suit land and had made a false claim of easement of necessity. The defendants denied the claim of the plaintiff in respect to the easement by prescription or by necessity. 7.The plaintiff filed replication and controverted the pleas of the defendants made in the written statement and reasserted the pleas taken in the plaint. 8.On the pleadings of the parties, the learned trial Court on 18.4.1990 and 23.2.1994 had framed the following issues:- (1)Whether the plaintiff is entitled to the relief of declaration and permanent injunction, as alleged? OPP (2)Whether the suit is not maintainable as alleged? OPD (3) Whether the plaintiff is estopped from filing this suit by his act and conduct as alleged? OPD(4) Whether the plaintiff has no cause of action to file the suit as alleged? OPP (2)Whether the suit is not maintainable as alleged? OPD (3) Whether the plaintiff is estopped from filing this suit by his act and conduct as alleged? OPD(4) Whether the plaintiff has no cause of action to file the suit as alleged? OPD 4(A) Whether the plaintiff has got right of passage through the suit land as easement by prescription as well as easement of necessity?OPP 4(B) Whether there is any alternative path to the suit land? OPD 4(C) Whether the suit land does not measure 1 K-9M, if so, to what effect?OPD (5)Relief. The learned trial Court dismissed the suit of the plaintiff/respondent by specifically holding that the suit is barred under the provisions of Order 2 Rule 2 CPC. Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff/respondent preferred an appeal before learned lower appellate Court while defendants/appellants preferred cross appeal against the findings recorded by the learned trial Court on issues No.3,4, 4(A), 4(B) and 4(C). The learned lower appellate Court vide its judgment and decree dated 21 .6.2002 has been pleased to allow the appeal filed by the Plaintiff/respondent while the cross appeal preferred by the defendants/appellants has been ordered to be dismissed. It is against this judgment and decree that the defendants/appellants have preferred the present appeal before this Court. 9. This Court on 19.7.2002 admitted the appeal on following substantial questions of law:- (1)Whether the suit filed by the plaintiff was not maintainable in view of the provisions of Order 2 Rule 2 and Order 23 Rule 3 of the code of Civil Procedure? (2) Whether the first appellate Court was justified in granting decree of right of passage as easement of necessity without there being any foundation in the pleadings of the plaintiff? (3) Whether the findings of the first appellate Court are perverse, result of misreading and misappreciation of the material and documentary evidence on record, particularly the sale deed Ex.PW-4/B, Akash Sajra Ex.PW-7/A, D-9 and Ex.DW-1/A? 10.I have heard Mr. K.D. Sood, Senior Advocate assisted by Mr. Rajnish K. Lall, Advocate, for the appellants and Mr. Bhuvnesh Sharma, Advocate for the respondents and have also gone through the record of the case. Substantial questions of law No.1 to 3. 11.Since all the questions of law as framed above are interconnected and interlinked, I proposed to deal with the same by common reasoning. Rajnish K. Lall, Advocate, for the appellants and Mr. Bhuvnesh Sharma, Advocate for the respondents and have also gone through the record of the case. Substantial questions of law No.1 to 3. 11.Since all the questions of law as framed above are interconnected and interlinked, I proposed to deal with the same by common reasoning. 12.The learned lower appellate Court held the suit to be maintainable and not hit by provisions of Order 2 Rule 2 of the Code of Civil Procedure nor was the plaintiff found guilty of suppression of material facts, so as to refuse the relief to the plaintiff. The learned lower appellate Court came to definite conclusion that in the earlier suit the plaintiff had sought relief of injunction restraining the defendants from raising any construction over the suit land till its partition, while the subsequent suit has been filed by the plaintiff for declaration regarding his right of path over the land of the defendants based on his claim of easementary right. It was further held that both the suits were distinct in their form and based on separate cause of action. Therefore, the plea of suppression of material facts was not available. 13.Insofar the applicability of Order 2 Rule 2 of the Civil Procedure Code is concerned, the learned lower appellate Court has held that that there was no occasion for the plaintiff/appellant to claim relief of declaration about his easementary right in respect of the path while preferring the first suit because at that time the property was still joint and had not been partitioned. Therefore, in these circumstances even if he wanted, he could not have claimed such right. 14.I find no infirmity with the findings recorded by learned lower appellate Court in holding that the suit was maintainable and further holding that the provisions of Order 2 Rule 2 CPC are not attracted in the present case.For this, I draw support from the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh versus State of Maharashtra and others AIR 1977 SC 1466 wherein it has been held:- “If at the date of the former suit the plaintiff is not aware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit. The reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in the subsequent suit. A right which a litigant does not know, that he possesses or a right which is not in existence at the time of the first suit can hardly be regarded as a “portion of his claim” within the meaning of O.2 R.2 of the code of Civil Procedure.” 15.The provisions of Order 23 of the Code of Civil Procedure are not attracted to the present case as there is no material whatsoever placed on record to attract the applicability of this provision.Even otherwise no arguments qua this question have been addressed by the learned counsel for the appellants. 16.Insofar, as the granting decree of right of passage as easement of necessity without there being any foundation in the pleadings is concerned, suffice it to say, that during the pendency of the suit application for amendment was preferred by the defendants wherein it has been specifically stated in para-2(iii) of the application as follows: 2(iii) That applicant intends to delete present para no.5 and intends to substitute now para no.5 as under:- “5. That plaintiff’s father was previous owner of the entire khasra No.1564/738 old measuring 1 K-17 M and out of this he has sold only 8 marlas to defendant No.1 and one Smt. Bimla Devi and rest of the land i.e. 1 kanal 9 marlas was transferred to plaintiff. The plaintiff and his predecessor-in-interest were using the path from the road to the plot from time immemorial. The path is necessary as a mean of egress and ingress to the plaintiffs’ plot, was enjoyed before partition and is also necessary to enjoy the same in future. There is no other alternate to this path. The path is shown in the already filed site plan in coloured portion and its width is about 7’. The path is being claimed as easement of necessity and quasi easement. The partition has taken place in jamabandi 1991-92 during consolidation.” This application for amendment was duly allowed by the learned trial Court vide order dated 11.1.1994 which reads as follows:- “Reply filed. The path is being claimed as easement of necessity and quasi easement. The partition has taken place in jamabandi 1991-92 during consolidation.” This application for amendment was duly allowed by the learned trial Court vide order dated 11.1.1994 which reads as follows:- “Reply filed. Arguments heard.Since the khasra numbers of the land in dispute have changed and plaintiff is required to mention the latest khasra numbers in the plaint I find that the proposed amendment is necessary to determine the real controversy between the parties. Hence, I allow this application subjection to cost of 45/- . Now to come up on 3.2.1994 for payment of costs and filing of written statement to the amended plaint.” 17.Though, Mr. K.D. Sood, Senior Advocate, for the appellants would contend that the amendment was allowed only qua the correction of khasra numbers, however, the records of the case belies the submission made by the learned senior counsel for the appellants. As a matter of fact, on 23.2.1994, the learned trial court on the basis of amended pleadings of the parties framed the following additional issues:- 4(A) Whether the plaintiff has got right of passage through the suit land as easement by prescription as well as easement of necessity? OPP 4(B) Whether there is any alternative path to the suit land? OPD 4(C) Whether the suit land does not measure 1 K-9M, if so, to what effect? OPD Had the learned trial Court allowed only the correction of the khasra numbers alone as has been contended then obviously there was no necessity to frame additional issues much less the issues 4(A) to 4(C). Thus, it can be said that the parties were put on trial to the question of easement. 18.Now as the question of easement is concerned, the learned appellate Court came to the conclusion that the land had been sold to defendant No.1 in the year 1989, therefore, uptil 1989 the plaintiff had been going to the road through this land uninterruptedly. 18.Now as the question of easement is concerned, the learned appellate Court came to the conclusion that the land had been sold to defendant No.1 in the year 1989, therefore, uptil 1989 the plaintiff had been going to the road through this land uninterruptedly. It is further concluded that no doubt in the sale deed Ex.PW-4/B no reference of path has been made but since the sale was of 8 marlas of land without any tatima, therefore, it was obvious that the land used by the plaintiff as path for going to road would be used as before so as to go to the last end of the land and come back from there in defined or undefined path. It was further held that the land was claimed by the plaintiff to be 7 feet wide which no agriculturist would allow his land to be used as path. It was observed that it is generally ‘MAIND’ of such land which is used by the farmers for carrying out the work for agriculture purpose. The learned lower appellate Court thereafter decreed the suit of the plaintiff by declaring that the plaintiff had a right of way through khasra No.853 owned and possessed by the defendants by easement of necessity but this use of path of the land of the defendants shall be as per custom in the village and shall be by the side of the ‘MAIND’ of the field and shall not be more than three feet in width. 19 It cannot be disputed that it is a common feature of the villages in Himachal Pradesh that people generally pass over the ‘MAIND’ of the land. Such like customary usage is existing in other parts of India also and has been noticed in Smt. Balley and another vs. Rama Shanker Lal and others AIR 1975 Allahabad 461 in the following manner:- “5. The main question that falls for determination in this appeal is whether the plaintiff can be said to have acquired a prescriptive right of way under Section 15 of the Easements Act on the ‘Danda’ running over the ridge ‘between the two fields Nos. 30 and 31. The main question that falls for determination in this appeal is whether the plaintiff can be said to have acquired a prescriptive right of way under Section 15 of the Easements Act on the ‘Danda’ running over the ridge ‘between the two fields Nos. 30 and 31. Learned counsel for the plaintiff-respondent contended that the learned Judge of the lower appellate Court rightly applied the law in holding that the plaintiff having proved that he has been passing over the disputed passage for over 25 years after purchasing plots Nos. 9 and 10 for enjoyment thereof without any let or hindrance, it would be presumed that he did it as of right. Reliance was placed in this connection on the cases of Hari v. Mahadeo (AIR 1921 Nag 127), Phoolchand v. Murari Lal (AIR 1951 Madh Bha 89) and Tukaram Rajaram Suple v. Sonba Chindu Mali ( AIR 1959 Bom 63 ). In my judgment, the learned Judge of the court below seems to ‘be of the view that once a person establishes his passing over a piece of land for more than 20 years without any evidence of interruption or hindrance, then he would be deemed to be so doing as of right and he would acquire a prescriptive right of way under Sec. 15 of the Easements Act. Even the cases cited by the learned counsel for the plaintiff-respondent do not lay down any such rule of law. It would be seen that in all those cases on the facts and circumstances it was either found that the user was as of right or the user was not as of right but was by way of leave or licence. Here in the instant case the plaintiff came with a case that there was passage one Lattha wide on which bullock carts and Ikkas could pass and he had been using it for over 25 years as of right for access from the main road to his Gher in plots Nos. 9 and 10. This affirmative case pleaded by him has not been found to be established. 9 and 10. This affirmative case pleaded by him has not been found to be established. What has been found established is that on the ridge between the boundaries of the two cultivated fields there was a passage 1 to 2 feet wide which could be used as an access from the public road to the agricultural plots in the village lying to the south of that public road. It is the common feature in our agricultural villages that on the Mend ‘boundary between two cultivated agricultural fields public generally pass and hardly by habit any agriculturist objects to it. I have no hesitation in holding that such passing over the ridges of the field to and fro by the villagers would always the permissive user. Thus an uninterrupted user by any person of a ridge between the two agricultural fields for passing over it could be presumed to be permissive and not as of right. Moreover, it would not be in public interest if this court countenances recognizing acquisition of prescriptive right of way over the boundaries of the agricultural fields as that would lead to complications in the agricultural areas having a baneful effect end completely preventing the re-arrangements of agricultural fields or their divisions. In the circumstances of the instant case in the consolidation proceedings, on the own admission of the plaintiff, Rama Shanker Lal, who appeared in the witness box, he did not ask for a chak road over the disputed land. The view of the court below that such an objection could not have been raised under Section 9 or 20 of the Consolidation of Holdings Act may be a correct view but there was nothing to prevent the plaintiff when the chaks were being carved to ask the Consolidation to leave a passage. The attempt of the plaintiff that the consolidation had put stone pillars demarcating the passage has miserably failed as there is a finding recorded that no such stone pillars were found at the spot which were put as demarcation by the Consolidator. I, therefore, hold that the lower appellate Court has misdirected itself in holding that as of right the plaintiff had ‘been using the ‘Danda’ for access to the plots 9 and 10 from the public road. It would be ‘presumed that the user was permissive. I, therefore, hold that the lower appellate Court has misdirected itself in holding that as of right the plaintiff had ‘been using the ‘Danda’ for access to the plots 9 and 10 from the public road. It would be ‘presumed that the user was permissive. The plaintiff could not succeed therefore merely on the evidence as adduced by him that any prescriptive right of way has accrued to him under Section 15 of the Easements Act. 20. The learned counsel for the appellants would then contend that the findings recorded by the learned lower appellate Court are totally based on misreading and misappreciation of the material and the documentary evidence available on record (The sale deed Ex.PW-4/B, Aks Sajras, Ex.PW-7/A, Ex.D-9 and Ex.DW-1/A). From the record, it is clear that all the aforesaid documents have in fact taken into consideration by the learned lower Courts below and appreciated in its right perspective. It could not be pointed out by the appellants as to how and in what manner these documents have not been correctly appreciated and in what manner would they affect the out come of the present appeal. In this view of the matter, it can be safely concluded that the documents as referred above have been duly considered and appreciated by the learned lower appellate court in its right perspective. 21.The learned counsel for the appellants has then argued that while alleging the existence of the path, neither the width of the path nor the points of ingress and egress have been pleaded and proved. The evidence led by the respondent does not prove the existence of a path through the land in dispute. For this purpose he has placed reliance upon the judgment of this Court in Jagat Singh vs. Badri Nath and others 1997 (2) Sim.L.C. 353 wherein it has been held that:- “11. As stated above, the pure and simple case set up by the plaintiffs in their plaint is that there exists a path in the land belonging to the defendant since time immemorial. However, while alleging the existence of the path, neither the width of the path nor the points of ingress and/or egress have been pleaded and proved. The evidence led by the plaintiffs does not prove the existence of a path through the land comprising of khasra No.1584/1482/1. However, while alleging the existence of the path, neither the width of the path nor the points of ingress and/or egress have been pleaded and proved. The evidence led by the plaintiffs does not prove the existence of a path through the land comprising of khasra No.1584/1482/1. 22.I am not in agreement with the submission made by learned counsel for the appellants because the defendant had amended the written statement setting out therein the detail of the path and had annexed a site plan showing the width of the path alongwith the points of ingress and egress. 23.Lastly, the learned counsel for the appellants would contend that the right, if any, of the defendant with respect to the use of ‘MAIND’ can only be in connection with and for agricultural purpose alone and the so called path cannot be general mode of ingress and egress as the same would constitute nuisance. I find considerable force in the submission made by learned counsel for the appellants because the easementary right is a right which is claimed over someone else’s land. This is clear from the definition of easement as contained in the Indian Easements Act, 1882, which defines easement in Section 4, as follows:- 4.”Easement” defined.- As easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owners.- The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation.- In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth; the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.” Therefore, such easementary right cannot be permitted to be converted into nuisance. The questions of law as framed above are answered accordingly. 24.Consequently, the present appeal is partly allowed and the judgment and decree passed by the learned lower appellate Court is modified to the extent that the usage of the path by the plaintiff through khasra No.853 owned and possessed by the defendants by way of easement shall only be available strictly for agricultural purpose like going to the fields for agriculture work to be carried out, like ploughing the fields, bullocks, transporting the agriculture equipments, tools etc. With these observations the judgment and decree of the learned lower appellate court is modified, leaving the parties to bear their own costs.