Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2312 (HP)

Papinder Singh v. Gokal Chand

2016-11-01

CHANDER BHUSAN BAROWALIA

body2016
JUDGMENT : Chander Bhusan Barowalia, J. The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellant against the judgment and decree passed by learned Additional District Judge (Presiding Officer, Fast Track Court) Solan, District Solan, H.P, in Civil Appeal No.22FT/13 of 2006, dated 17.11.2006, vide which the learned Appellate Court has partly modified the judgment and decree passed by learned Civil Judge (Senior Division), Kasauli, District Solan, H.P, in Civil Suit No.303/1 of 2002, dated 20.6.2006. 2. Briefly stating facts giving rise to the present appeal are that appellant/plaintiff (hereinafter referred to as =the plaintiff') has succeeded to the original plaintiff Neelam, maintained a suit against the respondents/defendants (hereinafter referred to as =the defendant') claiming that plaintiff is owner-in-possession of land and building comprised in Khata/Khatauni No.19/40 and 41, Khasra Nos.853, 854, 855, Kitas 3, measuring 144.33 sq. meters, situated in mauza Dangyar, Tehsil Kasauli, District Solan, H.P (hereinafter referred to as =the suit land'). The alleged property was owned and possessed by Fakir Chand, who sold it to the plaintiff in the year 1985. It is alleged that the plaintiff is owner-in-possession of the same since 1979, but the sale deed was executed in the year 1985. The dispute is with regard to =gair mumkin gali' of defendant No.1 in Khasra No.850, which is in the shape of staircase of the plaintiff, which is being used by the plaintiff as approach to reach the ground floor of his building. So, the =gali' is claimed as path on the ground of easement of necessity as well as on the basis of easement by prescription. As per the defendants, the plaintiff purchased only two biswas of vacant land denoted as Khasra No.80/2/2/1 (6 karms x 6 karams) from Fakir Chand through sale deed No.186, dated 6.8.1985. The husband of the plaintiff, who is property dealer manipulated the things and instead of showing the measurement of two biswas, which is 84 square meters, shown 144 sq. meters of the land in her ownership and possession. The existence of building on the spot for the last more than 50 years is denied. It is further submitted that the plaintiff has constructed the building and the same has been renovated and the staircase from the first floor to the ground floor has been removed. meters of the land in her ownership and possession. The existence of building on the spot for the last more than 50 years is denied. It is further submitted that the plaintiff has constructed the building and the same has been renovated and the staircase from the first floor to the ground floor has been removed. The door and windows from the back side of the building have been closed and additional godown has been added in the back side of the building towards the vacant land. It is further alleged that defendant No.1 is owner-in-possession of said =gair mumkin gali' situated in Khasra No.850. Defendants constructed his building in the year 1971-72 and they had left the vacant space, as the set back which was duly fenced and possessed by the defendants and their family members. The plea of easementary rights through the =gali' by way of necessity is denied. Further submitted that the plaintiff does not reside in Parwanoo and settled in Mumbai with her family, her husband occasionally visits Parwanoo. As per the defendants, the plaintiff recently removed the staircase, which was on the back side of the first floor and is claming the =gali' on the basis of easement. 3. The learned trial Court framed following issues on 21.5.2003 : ?1. Whether the plaintiff is owner-in-possession of the property i.e. land and building, as alleged? 2. Whether the building and the suit property is existing for the last more than 50 years, as alleged? OPP 3. Whether the suit property was owned and possessed by Sh. Fakir Chand s/o Sh. Bhagi Ram, who had sold the same to the plaintiff in the year 1985, as alleged ? OPP 4. Whether in the year 1985 the plaintiff has renovated and reconstructed the building at the spot, as alleged? OPP 5. Whether the defendants are stranger to the suit property and have no concern with the suit property? OPP 6. Whether the disputed gali is the only path which leads to the ground floor of the building of the plaintiff and without which path/gali the plaintiff cannot approach and reach to the ground floor, as alleged? OPP 7. Whether the plaintiff has been using the disputed gali as path for the last more than 50 years by herself and through her predecessors in interest openly, continuously and without any interruption, obstruction, as alleged? OPP 8. OPP 7. Whether the plaintiff has been using the disputed gali as path for the last more than 50 years by herself and through her predecessors in interest openly, continuously and without any interruption, obstruction, as alleged? OPP 8. Whether the plaintiff has been using the disputed gali as easement of necessity for going to the ground floor of the building, as alleged? OPP 9. Whether the defendants in connivance and in collusion with each other had illegally constructed a brick wall towards eastern side of the disputed gali touching Khasra No. 628, as alleged? OPP 10. Whether the defendants have also put up a grill gate towards western side of the disputed gali and had put up a lock on the said grill gate, as alleged? OPP 11. Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendants to open the lock of the grill gate and remove the grill gate from the western side of the disputed gali and also to dismantle and remove the brick wall from the eastern side of the disputed gali, as alleged? OPP 12. Relief.? 4. The learned trial Court has decided Issue No.1 partly in favour of the plaintiff, Issues No.2, 6, 7, 8, 10 and 11 against the plaintiff, Issue No.3 in favour of the plaintiff, Issue No.4 and 9 not pressed and dismissed the suit. Thereafter, the appeal was maintained before learned Addl. District Judge, (Presiding Officer Fast Track Court), Solan, has partly allowed the appeal of the plaintiff and set aside the judgment and decree of the learned Court below, but upheld the findings of learned Court below to the extent that the plaintiff has no easementary right to use the =gali' of the defendants. Against the findings of the learned lower Appellate Court that the plaintiff has no easementary right to use the =gali' of the defendants, the plaintiff has come in appeal before this Court. No cross appeal is maintained by the defendants. Hence, the present regular second appeal, which was admitted on the following substantial question of law: ?Whether the Courts below have misappreciated and misconstrued the evidence and the provisions of law?? 5. Mr. No cross appeal is maintained by the defendants. Hence, the present regular second appeal, which was admitted on the following substantial question of law: ?Whether the Courts below have misappreciated and misconstrued the evidence and the provisions of law?? 5. Mr. Bhupinder Gupta, learned Senior Counsel for the plaintiff has argued that report of Local Commissioner clearly shows that there is no other path to go to the lower storey of the house of the plaintiff and the findings of the learned lower Appellate Court to this extent holding that the plaintiff has no right to use the =gali' is required to be set aside. He has further argued that these perverse findings are required to be set aside. 6. On the other hand, Mr. G.D. Verma, learned Senior Counsel for the defendants has argued that there was a staircase from the back side of his house in the first floor to go to the lower side, which he has removed and claiming the =gali' of the defendants on the basis of easement of necessity, therefore, the appeal deserves to be dismissed. 7. In rebuttal, learned Senior Counsel appearing on behalf of the plaintiff has argued that the easement of necessity still subsists, as per the report of Local Commissioner, therefore, the appeal requires to be allowed and suit be decreed in totality. 8. To appreciate the arguments of learned Senior Counsel for the parties, I have gone through the record in detail. 9. The only question which arises determination in this appeal is that whether the findings of the learned Appellate Court are perverse in not holding that the plaintiff has easementary right to use the =gali' in the nature of staircase for going to his ground floor, as rest of the suit of the plaintiff is decreed by the learned lower Appellate Court and no cross objections or cross appeal is there and rest of the findings attained finality. Now, as far as the staircase in the form of =gali' is concerned, the same is admittedly on the land of the defendants. It is proved on record that the plaintiff is neither entitled to claim the path by way of necessity nor by prescription. The plaintiff is not entitled for claiming the easementary rights either by necessity or by prescription. It is admitted fact that the said =gali' is owned and possessed by defendant No.1. It is proved on record that the plaintiff is neither entitled to claim the path by way of necessity nor by prescription. The plaintiff is not entitled for claiming the easementary rights either by necessity or by prescription. It is admitted fact that the said =gali' is owned and possessed by defendant No.1. Once the property is owned by defendants, it is the =sweet will' of the defendants to raise construction as desire by them. The defendants illegally constructing the brick wall towards eastern side of the disputed =gali' touching Khasra No.628, does not give any fruitful purpose to the plaintiff to claim demolition of the said wall. The case of the plaintiff fails by its own force and has no right to point against the defendants those had constructed the wall upon their own land. Further, there is no deposition of plaintiff and her witnesses to show the illegality in the said wall. 10. From the above, it is clear that the plaintiff was having stairs from inside the house and also an alternative path through the plot from its back side of the plaintiff's building. So, in these circumstances the findings of the learned Appellate Court to the extent that the plaintiff has no right to use the staircase/'gali' of the defendants, needs no interference, as the same have been arrived at after appreciating the facts to its true perspective and the law has been applied correctly. It is again reiterated that rest of the suit of the plaintiff was decreed by the learned lower Appellate Court. There is neither any cross objections nor any appeal has been filed against the said decree, therefore, the same has attained finality. The substantial question of law, as framed by this Court, is answered holding that the findings arrived at by the learned lower Appellate Court are just, reasoned and after appreciating the facts, which has come on record, to its true perspective and the law has been correctly applied. 11. With these observations, the appeal of the appellant/plaintiff being without any merit deserves dismissal, hence the same is dismissed. However, in the peculiar facts and circumstances of this case, parties are left to bear their own cost (s). Pending application (s), if any shall also stands disposed of.