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2015 DIGILAW 1493 (HP)

Gopal Saran v. Devi Dayal

2015-10-13

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. The appellants/defendants have filed this appeal against the concurrent findings of fact recorded by the learned Courts below. The facts of the case may be noticed as follows:-- "The plaintiff/respondent herein filed a suit stating therein that he was owner in possession of land comprised in Khata/Khatauni No. 99/152 Khasra Nos. 82, 85, 1125/1128 measuring 14 biswas and Khata/Khatauni No. 115/175, Khasra No. 1126/1128 measuring 16 biswas and Khata/Khatauni No. 68/119 Khasra No. 1190/84, measuring 5 biswas, situated at Mauja Garkhal, Pargana Lachhrang, Tehsil Kasauli, District Solan, Himachal Pradesh (herein after referred to as the suit land) It was stated that the appellants/defendants have no right, title or interest over the above said land and they had started interference in the peaceful possession of the plaintiff without any right to do so by trespassing over the same and by passing through the said land forcibly and illegally, they had threatened to cause damage to the suit land and to raise construction thereon. It was further stated that the plaintiff had requested the defendants not to do any illegal act but in vain. It was stated that on 8.8.1995 the defendants had interfered in the peaceful possession of the plaintiff by passing through the land forcibly, hence the suit." 2. The suit was resisted and contested by defendants by filing written statement, wherein it had been averred that the plaintiff had suppressed material facts from the Court. In fact, there was a path which starts from Dharampur-Kasauli Road just near the house of Sh. Mewa Lal and goes to the house of the defendants and the plaintiff and also to the temple belonging to defendant No. 5. It was further stated that the said path was in existence from time immemorial and was being used and enjoyed by the owners of the properties adjoining to the land of the plaintiff, by defendants and their predecessors. It was further stated that the said path was in existence for the last more than 30 years which was being used by the plaintiff, his family members, defendants, their predecessors, other owners of the property and also public at large including the devotees of the temple who visit the said temple. It was further stated that the said path was in existence for the last more than 30 years which was being used by the plaintiff, his family members, defendants, their predecessors, other owners of the property and also public at large including the devotees of the temple who visit the said temple. It was further stated that the path was certain, definite, ancient, regular and being used by the defendants and their predecessors, defendant No. 5 and the public at large, continuously, peacefully, openly to the knowledge of the public at large, as a matter of right. It was also alleged that the plaintiff had filed the present suit with an intention to get the path closed and to cause obstruction in the user and enjoyment of the defendants and to cause inconvenience to the public at large. It was alleged that the plaintiff wanted that the path should be used exclusively by him. It was further stated that there was a gate of the temple of Defendant No. 5 which was in existence for the last more than 30 years and nobody objected for the said path and the gate till date. It was also stated that there was no other path or possibility of construction or making of any other path to the house of the defendants and thus the defendants have right to use the path in dispute, as an easement of necessity. It was further stated that plaintiff had no right, title or interest to cause obstruction in the user and enjoyment of the said path. It was further stated that no loss or injury would be caused to the plaintiff in case the suit is dismissed and prayed that the suit of the plaintiff be dismissed with cost. 3. The learned trial Court vide orders dated 18.12.1996 framed the following issues:-- "1. Whether the defendants are causing interference in the land of the plaintiff? OPP 2. Whether there exist a path to the suit land from the time immemorial and is being used by the defendants or enjoyment of their property adjoining to the land of the plaintiff? OPD 3. Relief." 4. After recording evidence, the learned trial Court decreed the suit. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants preferred an appeal before the learned lower Appellate Court and the same also was also dismissed. OPD 3. Relief." 4. After recording evidence, the learned trial Court decreed the suit. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants preferred an appeal before the learned lower Appellate Court and the same also was also dismissed. Undeterred, the defendants have preferred the present appeal. 5. This Court admitted the appeal on the following substantial question of law:-- "Whether through the suit land, there passes path, which is shown in Tatima Ex. D.W.-4/A and the existence of this path having been admitted by the respondent, whether the plaintiff is not entitled to the discretionary and equitable relief of injunction?" I have heard the learned counsel for the parties and have gone through the records of the case. 6. Indisputably, the ownership of the respondent over the suit land has not been disputed and the only plea raised by the appellants is regarding the easmentary right over the suit land. Even otherwise the ownership of the respondent over the suit land draws support from the revenue record, more particularly, Ex. P-A, P-C and P-E. 7. Now adverting to the oral evidence, it would be seen that the respondent in order to prove his case has stepped into the witness box as PW-1 and stated that he is owner in possession of the suit land. He further states that the appellants used to trespass into his land and would illegally claim the path. He specifically stated that there is another path available to the appellants, which passes through PWD Colony, but since the same is long, therefore, the appellants used to trespass on his land and used it as a shortcut. Nothing material could be extracted from the cross-examination of this witness and apart from questioning him with respect to there being houses in the vicinity, no question regarding the ownership of the path has been asked. 8. PW-2 is Kuproo Ram, who has categorically stated that there is no public path through the land of the respondent and the so called path is a private path which exists over the land belonging to the respondent and further leads to the house of the respondent. He has also specifically stated that there is another path which goes to the houses of the appellants through PWD Colony, but since it is long, therefore, this path is illegally used as a shortcut by the appellants. He has also specifically stated that there is another path which goes to the houses of the appellants through PWD Colony, but since it is long, therefore, this path is illegally used as a shortcut by the appellants. Nothing worthwhile to notice has come out in the cross-examination of this witness. This witness too has only been cross-examined to establish that there are houses adjoining to the house of the respondent who too, according to the appellants, are using the path. 9. To rebut this evidence, the appellants have examined one Sh. Bihari Lal as D.W.-1, who stated that the alleged path goes from Dharampur to Kasauli from the side of the house of Mawa Lal. He further stated that the path is about 1 and 1/2 meters wide and leads to the houses of Kulwanti and Goverdhan. He further states that some part of this path is kachha and some part is puckka. He further states that he is using this path for the last about 25 to 30 years without any interference and even people of the area used this path to go to temple. He further states that people also go through this path to their Ghasni and even the students and teachers used this path. He further states that there is no other path going through the PWD Colony. In cross-examination he stated that he had purchased land from one Sh. Rajinder Sharma in the year 1970-71, but there is no map of path along with the registered sale deed. He has admitted that he has given affidavit Ex. PX which is regarding the G.I. Pipe lines laid by the appellants through the land of the respondent. He has specifically admitted that no path is recorded in the revenue record. In further cross-examination, he admits that there is another path which is outside the suit land. 10. D.W.-2 Rajinder Prakash states that there is a path, which goes to the temple and the appellants are using this path to go to their houses. But then he feigned ignorance about this path as he has not gone through this path for a considerable long time. He further states that path is ancestral one and the respondent has no right to obstruct the same. But then he feigned ignorance about this path as he has not gone through this path for a considerable long time. He further states that path is ancestral one and the respondent has no right to obstruct the same. In cross-examination he admitted that he is in litigation with the respondent for the last 24 years, which establishes that he is nothing, but an interested witness and has been simply planted to depose against the respondent. 11. D.W.-3 Prabhu Dayal states that the path in question is the only path for the appellants and is about 3-4 feet wide. He further states that this path was never obstructed by any one. In cross-examination he has admitted that the appellants had given an application Ex. P-B to the Panchayat regarding the path, which goes from behind the PWD Colony. He further states that he does not know to what extent the path goes from the land of the respondent. 12. D.W.-4, Jagdish Ram, Field Kanungo has prepared the tatima Ex. D.W.-4/A. In cross-examination he has admitted that there is no path shown in the revenue record and further states that he had not verified the path which has been shown in Ex. PB placed on record by the respondent. He further stated that the path is kachha and he has not seen any pipe line over this path. 13. D.W.-5, Har Dayal Singh states that he went on the spot and prepared map Ex. D.W.-5/A and states that there is only one path at the spot. In cross-examination, he admitted that he had not shown the approach road which leads to the Rest House in this map and further admitted that there was other path which leads towards the ghasni and fields. 14. It would be evident from the aforesaid oral evidence that the appellants have miserably failed to prove the right of easement over the land. It was the specific case of the appellants that they had been using the alleged path from time immemorial and simply pleaded that they had been using it for the last 30 years, since the time of their predecessor, continuously, openly and peacefully to the knowledge of the public at large and as a matter of right. It was further averred that there was no other alternative path. Thus the plea set up by the appellants was clearly that of easement of necessity. It was further averred that there was no other alternative path. Thus the plea set up by the appellants was clearly that of easement of necessity. But then, it has been duly proved on record that there is an alternative path, which is inconvenient to the appellants, as it is longer. If that be so, then the plea of easement of necessity as raised by the appellants falls flat on its face. Rather there is no element of easement what to talk of easement of necessity. 15. In view of the aforesaid discussion, the mere fact that there is a path which in fact is a private path and leads to the house of the respondent, would, therefore, not entitle the appellants to claim any right over the same. Rather this Court is of the firm view that it is the appellants, who have misused the process of law by unnecessarily dragging the respondent into an avoidable litigation. 16. That apart, it would be noticed that despite there being initially 5 defendants, none of them has cared to step into the witness box to depose in support of the case set up by them. Therefore, this Court is left with no other option but to draw an adverse inference against the appellants (refer Vidhyadhar Vs. Manikrao and Another, (1999) 3 SCC 573 . 17. Another fact, which cannot be ignored, is that the appellant No. 4 died during the pendency of the appeal and an application bearing CMP No. 1681 of 2013 was preferred by the remaining appellants for deletion of his name on the ground that neither the actual date of his death nor the details of legal representatives left behind by this appellant were known. This application came up for consideration on 6.3.2014 and the name of appellant No. 4 was ordered to be deleted from the array of the appellants subject to all just exceptions. What therefore, emerges is that the decree in so far as the deceased appellant No. 4 is concerned, has attained finality. This application came up for consideration on 6.3.2014 and the name of appellant No. 4 was ordered to be deleted from the array of the appellants subject to all just exceptions. What therefore, emerges is that the decree in so far as the deceased appellant No. 4 is concerned, has attained finality. It is not in dispute that all the appellants had pleaded a common right based on necessity and when the decree proceeded on ground common to all the plaintiffs or defendants, then if all the plaintiffs or defendants appeal from the decree and any one of them dies and his legal representatives have not been brought on record, the decree becomes final as against such plaintiff or defendant and the suit would, therefore, abate as a whole. 18. In view of the aforesaid discussion, there is no merit in this appeal and the same is dismissed. The respondent has been unnecessarily dragged into these litigations for the last two decades, therefore, the appellants are burdened with costs of Rs. 5,000/- each to be paid to the respondent.