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2016 DIGILAW 255 (HP)

Shrawan Singh v. Ramel Singh

2016-03-15

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Kangra at Dharamshala, H.P. dated 31.7.2007, passed in Civil Appeal No. 47-J/XIII-04. 2. Key facts, necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff) has filed a suit for perpetual and prohibitory injunction restraining the respondents-defendants (hereinafter referred to as the defendants) from interfering in the ownership and possession of the plaintiff, raising any construction, removing trees and changing the nature of the land, as detailed in the plaint. According to the plaintiff, the land is owned and possessed by him and he has got his abadi and other vacant space alongwith other co-sharers, which is situated at higher level. The land of the defendants is situated in Kh. No. 533 at lower level and all the rainy water of residential house of the plaintiff and other vacant land has been passing through the site since the time immemorial without any interruption for the last more than 30 years before filing the suit. He has acquired right of easement by prescription and the plaintiff has also got customary right of easement. The defendants demolished their old cowshed situated over Kh. No. 533 and constructed new house over the portion with intention to divert the natural flow of water which was passing through points A to C and now they were threatening to divert the same from point A. They have forcibly dug a drain just adjoining to the boundary wall of the plaintiff. The plaintiff's wall was damaged and it has caused damage to the tune of Rs. 12,000/-. 3. The suit was contested by the defendants. According to them, the abadi of the plaintiff is situated at higher level. The water, as alleged by the plaintiff, has acquired no right of easement by necessity or prescription. The plaintiff has no right, title or interest to pass the water to the land of defendants as the defendants are absolute owner of Kh. No. 533. 4. Replication was filed by the plaintiff. The learned Civil Judge, (Jr. Divn.), Jawali, Distt. Kangra, H.P., framed the issues on 2.5.2000 and suit was dismissed on 16.2.2004. Feeling aggrieved, the plaintiff preferred an appeal before the learned District Judge, Kangra at Dharamshala. The learned District Judge, Kangra at Dharamshala, dismissed the same on 31.7.2007. No. 533. 4. Replication was filed by the plaintiff. The learned Civil Judge, (Jr. Divn.), Jawali, Distt. Kangra, H.P., framed the issues on 2.5.2000 and suit was dismissed on 16.2.2004. Feeling aggrieved, the plaintiff preferred an appeal before the learned District Judge, Kangra at Dharamshala. The learned District Judge, Kangra at Dharamshala, dismissed the same on 31.7.2007. Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law on 13.8.2008: ?1. Whether the plaintiff had acquired the right of free flow of water from the higher level to the lower level on account of continuous, open and uninterrupted user by prescription as also under custom and the obstruction caused by the defendants had interfered with the right of the plaintiff and resulted in irreparable loss and injury to the appellant and entitling the plaintiff to decree for mandatory as also prohibitory injunction? 2. Whether the judgment of the learned District Judge is vitiated for non-consideration of the oral and documentary evidence as also evidence adduced in appeal and ignoring the report of demarcation and is vitiated for not critically examine the evidence and giving the judgment on issue-wise and in violation of Order 20 Rule 5 CPC as also judgment of this Honble Court in Om Parkash versus State of H.P. reported in AIR 2001 HP 18 ?? 6. Mr. Rajnish K. Lall Advocate, on the basis of substantial questions of law framed, has vehemently argued that his client has acquired the right of free flow of water from higher level to the lower level on account of continuous, open and uninterrupted user by prescription as also under custom. He then contended that both the Courts below have not correctly appreciated the oral as well as documentary evidence, more particularly, demarcation report. He lastly contended that the courts below have not given the judgment issue-wise. On the other hand, Mr. R.K.Sharma, Sr. Advocate, has supported the judgments and decrees of both the Courts below. 7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 8. Plaintiff has appeared as PW-1. According to him, he has constructed his house, latrine, bath-room and courtyard on both sides of the house and a cowshed. The land of the defendants is at lower level. He has constructed his house 27 to 28 years ago. 8. Plaintiff has appeared as PW-1. According to him, he has constructed his house, latrine, bath-room and courtyard on both sides of the house and a cowshed. The land of the defendants is at lower level. He has constructed his house 27 to 28 years ago. There was a cowshed on the portion where the defendant had constructed his new house. When the plaintiff constructed his house, he has also raised boundary wall after leaving one meter wide land to the other side of the boundary wall. In that portion of land, rain water from his house fell towards the courtyard of the defendants. Thereafter, the natural flow of water goes towards the share-am-path. He has also placed on record site plan Ext. PW-1/A. There was no other way to pass this water. He was earlier working at Lucknow. The defendant has constructed his house on the place of cowshed 6-7 years ago. The defendants have excavated a drain towards his boundary wall due to which, the water from his abadi has been blocked and damage was caused to his boundary wall. He had also moved an application before the Deputy Commissioner and SDM and they have directed him to file a civil suit. The defendants have also constructed stairs at point ?A? due to which the water from his abadi has been blocked. The water was passing through this passage right from his ancestors. He had also initiated proceedings under the Criminal Procedure Code. The Tehsildar had also visited the spot and submitted his report to the S.D.M.In his crossexamination, he admitted that his house is situated in the abadi-deh. All the villagers are share holders in that abadi-deh land including defendants. He has admitted that the abadideh is still joint amongst the parties. He further admitted that he has not taken the consent of other co-sharers when he has raised the boundary wall. Voluntarily deposed that he was in possession of that part of land. He further admitted that the land has never been demarcated by any agency. He also admitted that there is a public path by the side of his house and the house of defendants. He admitted that the Panchayat had visited the spot and asked him that he is harassing the defendants intentionally. He further admitted that the land has never been demarcated by any agency. He also admitted that there is a public path by the side of his house and the house of defendants. He admitted that the Panchayat had visited the spot and asked him that he is harassing the defendants intentionally. He denied the suggestion that Panchayat has decided that he should pass half of the rain water through the backside of the house of defendants and rest of the water through the backside of the new house. He denied that he refused to accede to the advice given by the Panchayat. Voluntarily deposed that Chain Singh started quarrelling with him so Panchayat could not arrive to any decision. 9. Defendant Rumel Singh has appeared as DW-1. According to him the suit land is situated in Lal-lakir-abadi. The defendant has constructed a boundary wall around his house. There was a passage which was blocked by the plaintiff by constructing the boundary wall. The plaintiff has kept four holes towards his house and the rain water use to pass through his courtyard. Earlier the water from abadies of the plaintiff use to pass towards the passage. From the passage, it passes through the backside of his house. The plaintiff has also stacked big stones towards his old house due to which his walls have developed dampness. He reported the matter to the Panchayat. The Panchayat decided and asked the plaintiff to divert half of the water from his abadi through the backside of old house and rest of the water through the backside of the new house. The Sub Divisional Magistrate, Jawali had also asked the plaintiff to bifurcate the rain water into two parts but he refused. He admitted that he has added one room to his old house and increased the width of the room. He has denied that the boundary wall was in bad shape as he has dug the land near to the alleged wall. 10. DW-2 Sudershana Kumari, Pardhan of the Gram Panchayat Amlela deposed that house of the Sarwan is on the higher side. The plaintiff has kept holes in his boundary wall due to which there is danger to the house of the defendant. The water from the abadi of the plaintiff could pass through the backside of the house of the defendant. DW-2 Sudershana Kumari, Pardhan of the Gram Panchayat Amlela deposed that house of the Sarwan is on the higher side. The plaintiff has kept holes in his boundary wall due to which there is danger to the house of the defendant. The water from the abadi of the plaintiff could pass through the backside of the house of the defendant. She tried to persuade the plaintiff, but he refused to accede to the request. The Sub Divisional Magistrate, Jawali has also visited the spot. In case the holes kept by the plaintiff in the wall will not be plugged, the house of defendant can fall at any time. 11. DW-3 Gulzar Singh, Ex-Pardhan of the village Amlela for the year 1993-1996 has deposed that the wife of defendant moved an application on which he went to the spot. Sarwan Kumar was also in his house. The application was related to the holes kept by the plaintiff towards the house of the defendant. He has also placed on record the photo-copy of the order passed on the application of defendant No. 2. Many higher officials have visited the spot but the plaintiff refused to adhere to the requests made by them. 12. The plaintiff has claimed right of easement by prescription and also customary right of easement. However, the evidence on record establishes that the plaintiff himself has deposed that he has constructed house in the place of cowshed. He has raised boundary wall in the abadi deh land. The plaintiff has constructed his house 26-27 years back. The rain water from the house of the plaintiff only started flowing towards the land of the defendant 26 to 27 years ago and not prior to that, though plaintiff is claiming this right from the time of his forefathers. The plaintiff has not adduced any other evidence. No covillagers have been cited as witnesses by the plaintiff. 13. According to the statement of DW-2 Sudershana Kumari, the house of the plaintiff is on the higher side. He has kept holes in the boundary wall. There was danger to the house of the defendant. The water from the abadi of the plaintiff could pass through the back side of the house of the defendant. Similarly, DW-3 Gulzar Singh, Ex-Pardhan of villag Amlela has testified that he has visited the spot. He has kept holes in the boundary wall. There was danger to the house of the defendant. The water from the abadi of the plaintiff could pass through the back side of the house of the defendant. Similarly, DW-3 Gulzar Singh, Ex-Pardhan of villag Amlela has testified that he has visited the spot. He had asked the plaintiff not to open holes of the retaining wall towards the courtyard of the defendant. He has also placed on record the photocopy of the order passed on the application of defendant No. 2. The plaintiff has constructed wall without taking the permission or consent of the other proprietors of the village. 14. The appellant had also examined Sh. R.P. Shandilya as AW-1 on the basis of an application filed under Order 41 Rule 27 CPC. AW-1 Sh. R.P. Shandilya has deposed that the plaintiff has filed an application under Sections 133 and 145 of the Code of Criminal Procedure on the basis of which he conducted the demarcation of the dispute land and he prepared his report Ext. A-1. The report proves that AW-1 R.P. Shandilya had visited the spot and conducted demarcation but vide para 3 of the demarcation report, it has been stated that one Sh. Chain Singh had encroached upon two meters wide stretch of land out of the suit land, who was the owner of the adjoining khasra number. He advised the plaintiff to get proper demarcation. He could not narrate whether the plaintiff had kept 4 holes in the boundary wall or whether water from those holes was flowing in the land of the defendants. No reference of the channel has been given in the report. He did not tell about the fate of the decision of the Sub Divisional magistrate on the basis of report Ext. A-1. He has not clarified in his report as to whether he demarcated the land of both the parties. Had he demarcated the land of both the parties properly, there was no occasion for him to direct the plaintiff to obtain proper demarcation. There is nothing on record to prove whether his report Ext. A-1 was accepted by the Sub Divisional Magistrate or the same was set aside. Person who has prepared the spot map Ext. PW-1/A has not been examined. The learned Courts below have decided all the issues framed on 2.5.2000. There is nothing on record to prove whether his report Ext. A-1 was accepted by the Sub Divisional Magistrate or the same was set aside. Person who has prepared the spot map Ext. PW-1/A has not been examined. The learned Courts below have decided all the issues framed on 2.5.2000. Thus, the judgment in the case of Om Prakash and others vrs. State of Himachal Pradesh and others, reported in AIR 2001 HP 18 , is not at all attracted in the instant case. 15. The report Ext. A-1 has been correctly appreciated by the learned first Appellate Court. The plaintiff has got no easementary right by way of prescription or by necessity as there is alternative way to the passage of rain water towards the back side of the house of the defendant. The substantial questions of law are answered accordingly. 16. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application (s), if any.