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2016 DIGILAW 906 (HP)

Babu Ram v. Bhagwan Dass

2016-05-24

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. This appeal has been filed by the appellant-defendant against the judgment and decree dated 30.06.2006, passed by the learned Additional District Judge, Fast Track Court, Hamirpur, District Hamirpur, H.P., decreeing the suit of the respondent-plaintiff and reversing the judgment and decree dated 05.04.2000, passed by the learned Sub Judge Ist Class, Barsar, District Hamirpur, whereby the suit filed by the respondent-plaintiff has been dismissed. 2. The brief facts of the case are that the respondent-plaintiff (herein after referred to as the `plaintiff’), filed a suit for permanent prohibitory injunction against the appellants-defendants (hereinafter referred to as the `defendants’) restraining them from interfering with or digging or constructing any path/road or raising any construction or changing the nature of the land comprised in Khta No.22, Khatauni No.22 min, Khasra No.122, measuring 2K-1M, as per Jamabandi for the year 1992-93, situated in Tikka Suffan, Tappa Lohdar, Tehsil Barsar, District Hamirpur, H.P. (hereinafter referred to as the `suit land’), with a further prayer that in case the defendants succeeded in raising construction or changing the nature of the suit land, for mandatory injunction directing the defendants to put the land in original state. It was averred that the plaintiff was owner in possession of the suit land and the defendants were strangers and had no right, title or interest therein. It was alleged that the defendants threatened to construct a passage/road over the suit land where the Abadi of the plaintiff was situate. The plaintiff requested the defendants not to interfere or construct any passage over the suit land, but they did not pay any heed to his requests and threatened to construct the passage over the suit land. However, when in the last week of May, 1994 the defendants started interfering and threatening to raise construction of the path, he filed the present suit. 3. Defendants, by way of filing written statement, took preliminary objections regarding cause of action, locusstandi, estoppel, limitation, non-joinder of the necessary parties and maintainability of the suit in the present form. However, when in the last week of May, 1994 the defendants started interfering and threatening to raise construction of the path, he filed the present suit. 3. Defendants, by way of filing written statement, took preliminary objections regarding cause of action, locusstandi, estoppel, limitation, non-joinder of the necessary parties and maintainability of the suit in the present form. On merits, it is submitted that there was a passage/path over the suit land, 125 feet in length and 8 feet in width, which was being used by the defendants and other villagers since time immemorial and they alongwith other villagers have a right of easement by way of prescription to use the path which they are using continuously, openly, peacefully and uninterruptedly without any objection. It is averred that this path was used by the defendants and others for agriculture purposes which also connected other villages. It is further averred that in case the right of easement by way of prescription was not proved, then the defendants had got customary right of passage and also by way of custom over the suit land. It was alleged that the plaintiff had put a gate over the path and locked the same in the month of June, 1993 through Shri Megh Singh and Sunder Singh. It was also averred that this passage was used by the defendants for hand-pump. The defendants denied the claim of the plaintiff and prayed for dismissal of the suit. 4. In his replication filed by the plaintiff while denying the allegations made in the written statement, reaffirmed the averments made in the plaint. 5. On the pleadings of the parties, the learned trial Court framed the following issues:- “1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for? OPP. 2. Whether in alternative, the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff has no cause of action? OPD. 5. Whether the defendants have right of passage through the suit land as prayed for ? OPD. 6. Whether the suit is bad for non-joinder of necessary parties? OPD. 7. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD. 8. Whether the defendants are entitled to special costs under section 35-A CPC ? OPD. 9. OPD. 6. Whether the suit is bad for non-joinder of necessary parties? OPD. 7. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD. 8. Whether the defendants are entitled to special costs under section 35-A CPC ? OPD. 9. Relief.” 6. The learned trial Court, except issue No.6, decided all the aforesaid issues in favour of the defendants and accordingly dismissed the suit of the plaintiff. The appeal preferred by the plaintiff before the learned Appellate Court was decreed. 7. This second appeal was admitted on the following substantial question of law: “(1) Whether the judgment of reversal passed by the lower appellate court is sustainable in law? 8. Pleadings of the case suggests that controversy in the present case is that whether there is any path/road passes through the suit land and whether the defendants have any right to use path over the suit land in shape of easementary right by way of prescription as they have been allegedly using the same continuously, openly, peacefully and without any interruption. Though the suit of the plaintiff was dismissed by the learned trial Court, but subsequently, in appeal learned Additional District reversed the findings given by the learned trial Court and suit was decreed in favour of the plaintiff and against the defendants restraining them permanently from interfering or creating any passage over the suit land in any manner. Accordingly, this Court, solely with a view to answer the substantial question framed hereinabove, intends to examine the evidence available on record. 9. I have heard learned counsel for the parties and have gone through the record of the case. 10. Mr. Nitin Thakur, learned counsel appearing for the appellant-defendant, vehemently argued that the judgment passed by the learned first Appellate Court is not sustainable in the eye of law and the same deserves to be quashed and set aside. He forcefully contended that the bare perusal of the impugned judgment passed by the learned first appellate Court suggests that the Court itself has made out a case for the respondents which was neither pleaded nor proved by him before the trial Court. He also contended that while passing the impugned judgment, learned first appellate Court misread and misinterpreted the documentary evidence available on record and as such, findings returned by the first appellate Court deserve to be quashed and set aside. 11. Mr. He also contended that while passing the impugned judgment, learned first appellate Court misread and misinterpreted the documentary evidence available on record and as such, findings returned by the first appellate Court deserve to be quashed and set aside. 11. Mr. Thakur also stated that it is a settled law that the findings of the trial Court based on appreciation of evidence should normally be not disturbed by the lower appellate Court because the entire evidence has been re-appreciated and a judgment has been made by the Court after carving out a new case for the plaintiff. Mr. Thakur forcefully contented that in the present case the plaintiff has miserably failed to prove his case, rather he approached the Court with un-clean hands, suppressing the material facts and failed to implead the other villagers as party in the suit. Apart from this, he also stated that the person who supported the case of the plaintiff, PW-2 Shri Banku Ram, is an interested witness and could not be relied upon by the appellate Court since he has been using the path in question with the plaintiff. Moreover, he is having his house on the land adjoining to the land in dispute. During arguments having been made by Mr. Thakur, he invited the attention of the Court to the statement of plaintiff’s witnesses to demonstrate that both the plaintiff’s witnesses i.e. PW-1 and PW-2 have taken contradictory stand in their cross-examination. PW-2 though stated in his examination-in-chief that he had taken due permission to use the path in question from PW-1, whereas PW-1 denied of giving any permission. He vehemently contended that the existence of hand pump is not in dispute as such the plaintiff merely with a view to have the exclusive ownership of the hand pump has filed the suit for restraining other from going through the path in question. Learned counsel also stated that defendant No.1 duly proved the compromise by producing the witnesses/signatories to the same in the Court and they categorically denied the suggestions of duress/force used on the plaintiff at the time of signing the compromise deed Ex.D-1. Learned counsel also stated that defendant No.1 duly proved the compromise by producing the witnesses/signatories to the same in the Court and they categorically denied the suggestions of duress/force used on the plaintiff at the time of signing the compromise deed Ex.D-1. He stated that the stand of plaintiff-respondent No.1 to the effect that his signatures were taken by force and under the threat of sending him to jail could not be taken into consideration by the first appellate Court because admittedly there was no material on record which suggests that the plaintiff had actually taken steps against the police officials, who had advanced threats of sending him to jail in case he does not sign the compromise. 12. Mr. Thakur also invited the attention of this Court to the judgment passed by our own High Court in Rup Chand vs. Daulatu and Others, 1991(2) Sim.L.C. 94, wherein it has been held: “… … …the Right of using edges of each others fields for going to their respective fields by agriculturists is a customary right of easement.” 13. At this stage, it is also noticed that present appellant had moved an application under Order 41 Rule 27 of the Code of Civil Procedure (in short `CPC’) for permission to lead additional evidence, which was taken up by this Court on 24.11.2008 and it was ordered that the same would be considered at the time of final hearing of the main appeal. 14. Accordingly, before adverting to the merits of the case, this application, being CMP No. 855 of 2006, is taken up by this Court to ascertain the effect, if any, in the event of it is being allowed, on the merits of the case. Perusal of this application suggests that the applicant-appellant intended to place on record some evidence with regard to path/link road connecting Meena-Dehra with village Suman which was constructed with grant given by the government in the year 1983-84. Para-3 of the application is reproduced below: “3. Perusal of this application suggests that the applicant-appellant intended to place on record some evidence with regard to path/link road connecting Meena-Dehra with village Suman which was constructed with grant given by the government in the year 1983-84. Para-3 of the application is reproduced below: “3. That repair of this link Road was also carried out by the Gram Panchayat Lodhar when respondent Bhagwan Dass was Up-Pradhan and expenditure for this was incurred by the grant given the Government in this regard, which facts can be ascertained by calling a report in this regard from SDO Block Bhijhrin, Tehsil Barsar/SDM Barsar, which is necessary for just decision of the case which is main issue in the appeal in question, which could not be produced by the appellant when decree was passed against him by the lower appellate Court.” 15. It may be pointed out that, with the instant application, no documents, whatsoever, have been annexed which can be taken by the Court as an additional evidence in terms of Order 41 Rule 27 CPC, rather a very strange prayer has been made that detail of expenditure incurred on the repair of link road carried out by Gram Panchayat Lodhar when the present respondent Bhagwan Dass was Up-Pradhan be called from the office of BDO Block Bhijhrin, Tehsil Barsar/SDM Barsar, which is necessary for just decision of the case. The aforesaid prayer, made by the appellant in the application moved under Order 41 Rule 27 CPC, cannot be accepted at all because information, being sought by the appellant, does not appear to be necessary as far as adjudication of the present case is concerned. Hence the application is dismissed. 16. On the other hand, Shri Ajay Sharma, learned counsel appearing for the respondent No.1, supported the judgment passed by the Court below and vehemently argued that no interference of this Court is warranted in the present facts and circumstances of the case because the judgment passed by the learned first appellate Court is based upon correct appreciation of the evidence available on record. He forcefully contended that as per revenue record no path/passage exists over the suit land, rather revenue record itself suggests that the plaintiff is exclusive owner of the suit land. He forcefully contended that as per revenue record no path/passage exists over the suit land, rather revenue record itself suggests that the plaintiff is exclusive owner of the suit land. Moreover, present appellants have failed to place on record any evidence to suggest that they have any right in the shape of easementary rights by way of prescription to use the path over the suit land, which is admittedly owned and possessed by the plaintiff as per revenue record and prayed for dismissal of the appeal. 17. In the present case, the plaintiff, who had filed the suit for permanent prohibitory injunction against the defendants, restraining them from interfering with or digging or constructing any path/road or raising any construction or changing the nature of the land, averred that he is the owner in possession of the suit land and defendants being stranger have no right, title or interest therein. Though defendants by way of written statement stated that there was a passage over the suit land being used by them and other villagers since time immemorial as a matter of right, but, admittedly there is no evidence available on record to suggest that the passage which is being claimed by the defendants is actually recorded as same in the revenue record. The defendants also claimed that all the villagers have been using this path over the suit land for years together and as such they have right of easement by way of prescription to use the path which they have been using continuously, openly, peacefully, uninterruptedly and without any objection since long but there is no record to substantiate the plea of defendants. 18. Plaintiff with a view to support his case examined two witnesses. However, his statement was also recorded in rebuttal. He stated that he is owner in possession of the suit land and defendants have nothing to do with it. It is only in the year 1994 when the defendants started construction over the suit land. He specifically denied that for approaching hand pump this is the only passage which passes through the suit land. Though he admitted that once a truck passed through the suit land in order to install hand-pump but there was no agreement with the defendants with regard to the passage. He also stated that police forcibly got the compromise deed executed but there is no passage over the suit land. 19. Though he admitted that once a truck passed through the suit land in order to install hand-pump but there was no agreement with the defendants with regard to the passage. He also stated that police forcibly got the compromise deed executed but there is no passage over the suit land. 19. PW-2 Shri Banku Ram also stated that the plaintiff is owner in possession of the suit land and defendants have nothing to do with the suit land. He also stated that defendants tried to forcibly create a path over the suit land in May, 1994. In his cross-examination he admitted that there was complaint regarding closure of the path by the defendants and police had come to the site and agreement dated 17.11.1994 was entered into between the parties at the instance of the police. He stated that the agreement Mark `A’ bears his signatures. He specifically denied that the plaintiff agreed to offer the passage. He also stated that he took the material of his house through the land of the plaintiff with his permission though that fact has been denied by PW-1. He also stated that the truck went through the suit land to install the hand-pump but he clarified that there is a different path for fetching the water and there is no passage over the suit land. PW-3 (Plaintiff) again appeared in rebuttal and has stated that there is no passage over the suit land and a passage exists over the government land which leads to the fields of the defendants. He specifically denied that any offer of passage was made to the defendants by way of compromise. Rather he stated that the police arrested him on the complaint of the defendants and compelled/forced him to put his signatures and also threatened him to send him to jail in case he did not sign. Though he admitted his signatures on the compromise deed Ex.D-1, but candidly stated that the signatures were taken forcibly by the police. 20. On the other hand, defendant Shri Babu Ram, who appeared as DW-1, has stated that there is a passage, measuring 122 feet in length, over the suit land since the time of his forefathers. He has stated that as per the custom, the people of the village pass through the lands of each other and accordingly they have also been using the passage over the suit land. He has stated that as per the custom, the people of the village pass through the lands of each other and accordingly they have also been using the passage over the suit land. He stated that plaintiff in the year 1994 blocked the passage by putting a gate and they were left with no other passage. It has also come in the statement of this witness that this passage is being used by the villagers to approach the main road as well as for agriculture purposes. He stated that the plaintiff agreed to give passage over the suit land vide agreement Ex.D-1 though in cross-examination he admitted that there is no passage in the revenue record. He also denied that the police compelled and forcibly took signatures of the plaintiff. He stated that the people of the village pass through the land of each other with the consent of the owner. He stated that the defendants demanded the passage over Khasra No. 87, which is the old number of the suit land, which was denied by the plaintiff. But fact remains that the defendants did not plead any specific custom in the plaint as well as while deposing before the Court in the examination-in-chief, though specific plea with regard to using of passage over the suit land as an easementary right or by way of prescription were taken but no material whatsoever, have been placed on record that the defendants have been using this passage over the suit land for continuous period of 20 years without any interruption, continuously and as a matter of right. To the contrary, there is nothing in the statement that there is old path over the suit land. The revenue record i.e. copy of Misalhaquiat for the year 1992-93 Ex.P-1 clearly suggest that the plaintiff is the owner in possession of the suit land and there is no mention of path. 21. DW-2 Shri Dalip Singh and DW-3 Shri Raghubir Singh though have supported the case of the defendants by stating that the plaintiff blocked the passage in the year 1996 and it is an old passage over the suit land. But it has come on record that both these defence witnesses are inimical towards the plaintiff due to the on going litigation between them in the Courts. 22. But it has come on record that both these defence witnesses are inimical towards the plaintiff due to the on going litigation between them in the Courts. 22. DW-4 Shri Basant Singh who prepared the site plan Ex.DW-4/A though proved the same, but categorically admitted that he had not called any Patwari and Kanoongo before preparing the site plan nor he shown the adjoining land nor he took the signatures of any of the parties on the plan. Moreover, he had no licence to prepare the site plan, thus, the statement of this witness cannot be said to be of any help to the case of the defendants. 23. DW-5 Shri Vijay Paul Singh has not brought the record i.e. compromise deed Ex.D-1, but fact remains that it is not registered in the Panchayat. Though perusal of Ex.D-1 clearly suggests that this compromise was entered into between the parties at the behest of Gram Panchayat, but as per statement made by DW-5 this compromise deed Ex.D-1 was never registered in the Panchayat and as such it cannot be looked into. 24. Careful analysis of evidence led on record by both the parties suggests that plaintiff is the owner in possession of the suit land over which path is being claimed by the defendants. By way of specific evidence i.e. Ex.D-1 i.e. Missalhaquiat for the year 1992-93 plaintiff has been able to establish that he is the owner of the suit land rather perusal of this aforesaid revenue document nowhere suggests that any passage, which is being claimed by the defendants, exists over the suit land. Moreover, as has been discussed, the defendants have not led any cogent and reliable, convincing evidence to suggest that actually there was some path over the suit land, which they have been using from the time of their forefathers. Though defendants attempted to claim passage over the suit land as an easementary right by way of prescription but as has been observed above that there is no evidence worth the name to suggest that actually defendants as well as co-villagers have been using this passage for the continuous period of 20 years without any obstruction, continuously. As a matter of right there is only statement of DW-1 who has stated that all the villagers have been using this passage, which is 120 feet in length over the suit land since their forefathers. As a matter of right there is only statement of DW-1 who has stated that all the villagers have been using this passage, which is 120 feet in length over the suit land since their forefathers. It has been also stated by the defendants that, as per custom, the people of the village pass through the lands of each other and accordingly they have also been using the passage over the suit land, but again no evidence worth the name to prove the customary right, if any, have been led on record by the defendants. Statements of DW-2, DW-3 who have also supported the version of DW-1 cannot be taken into consideration as has been observed above, so on the basis of material evidence available on record i.e. revenue record, it can be safely inferred that the plaintiff is the owner in possession of the suit land and no path whatsoever as is being claimed by the defendants, exists over the suit land. As far as signing of the agreement Ex.D-1 is concerned, it is not to be looked into especially in view of the revenue entries, wherein the plaintiff has been shown to be owner in possession. Moreover, plaintiff has specifically stated that he was made to sign the compromise by the police under the threat of his being sent to jail. Defendants cannot be allowed to take benefit of compromise, if any, rendered by the plaintiff that too under the pressure of the police. Moreover, any recital given in the compromise will not take over ownership right of the plaintiff over the suit land which stands duly proved by way of the revenue entries made in his favour i.e. Ex.P-1. 25. As far as Rup Chand’s case, cited above, is concerned, the same cannot be made applicable in the given facts and circumstances of the present case. Undisputedly, the right of using edges of each others fields for going to their respective fields by agriculturists is a customary right of easement, as has been held in the case relied upon by the defendants. Undisputedly, the right of using edges of each others fields for going to their respective fields by agriculturists is a customary right of easement, as has been held in the case relied upon by the defendants. But in the present case, as has been discussed above in detail, there is no iota of evidence brought on record by the defendants which could be suggestive of the fact that the path over the suit land was being used by the defendants as well as villagers as a customary right of easement except the statement of DW-1, wherein he has stated that villagers have been using this path over the suit land since the time of their forefathers, no document worth the name, has been placed on record from where it could be inferred that villagers have been using land in question continuously for more than 20 years that too without any obstruction. Rather, Ex.D-1 misalhaquiat for the year 1992-93 clearly establish that the plaintiff is the owner of the suit land, more over, no specific evidence has been led on record by the defendants to the effect that villagers have been using edges of each other fields for going to their respective fields. Rather, in the present case specific plea put forth by the defendants is that a path exists over the suit land which they have been using for years together. Though there is a bald statement that they have easementary/customary right to use the path but in the absence of specific ingredients require for proving customary as well as easementary rights, aforesaid plea of the defendants cannot be accepted. Hence the judgment relied upon by the defendants in the present case is of no help. 26. In view of the aforesaid discussion, this Court is of the view that the judgment passed by the learned Additional District Judge, Fast Track Court, Hamirpur setting aside the order passed by the trial Court and thereafter decreeing the suit of the plaintiff and restraining the defendants permanently from interfering or creating any passage over the suit land in any manner is based upon correct appreciation of the evidence available on record and same deserves to be upheld. Hence, the questions are answered accordingly. This appeal is dismissed. All the interim orders are vacated. All miscellaneous applications are disposed of.