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2017 DIGILAW 325 (HP)

Brestua v. Rajinder Singh

2017-04-10

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. The judgment and decree dated 13.6.2003 passed by learned District Judge, Kinnaur, at Rampur Bushahr, H.P. in Civil Appeal No. 26 of 1999 is under challenge in this appeal. The appeal has been admitted on the following substantial question of law: “1. Whether the findings arrived at by the trial Court as affirmed by the first Appellate Court are perverse and dehors the evidence on record?” 2. Therefore, in order to determine the legality and validity of the impugned judgment and decree, facts of the case and evidence produced by the parties on both sides is required to be taken note of briefly. 3. The dispute in the present lis is qua the existence of path allegedly through edges (mainds) of the fields of appellant-defendant No. 2 Rati Sukh bearing Khata Khatoni No. 77 min/151 min Kh. No. 774, measuring 0-40-68 hectares and that of Bhaginar appellant-defendant No. 3 entered in Khata Khatoni No. 80/154, Kh. No. 696 measuring 0-23-58 hectares and Kh. No. 697 measuring 0-01-68 hectares situated in Up-mohal Powari Tehsil Kalpa, Distt. Kinnaur. 4. The plaintiffs (respondents herein) claim that as per the custom prevalent in the area where the above said land is situated, they were exercising their rights of using the edges (mainds) of the western end of upper part of field of defendant No. 3 bearing Kh. No. 697 and that of defendant No. 2 bearing Kh. No. 774 and Kh. No. 775 alongside water channel (Kuhl) shown with points A to B in the tatima Ext. PW-7/A to have access to their adjoining fields and orchard along with other members of their family, labourers, bullocks and cattle etc. openly, continuously and without any interruption by the defendants. It is, however, in June, 1992, the defendants had blocked the said access by fencing the same with barbed wire and thorny bushes at points A to B in the tatima and also by constructing a wall over their fields bearing Kh. Nos. 774 and 775 as well as at the western end of upper portion of Kh. No. 697. The parties, being agriculturist by profession and the fields in their area, generally small in size, surrounded by the fields of others, is not connected by a private or public path. Nos. 774 and 775 as well as at the western end of upper portion of Kh. No. 697. The parties, being agriculturist by profession and the fields in their area, generally small in size, surrounded by the fields of others, is not connected by a private or public path. As such, the right of using edges (mainds) of each other fields to have access to their respective fields along with other members of their families, labourers, cattle and bullock etc. is a customary right and in the exercise of such right, the plaintiffs are entitled to have access and use the passage running alongside edges of the fields of defendants for agricultural purposes. The obstruction to the exercise of their right at the behest of the defendants, was claimed to be illegal, arbitrary and against the factual position on the spot. Therefore, the defendants by a decree of permanent prohibitory injunction were sought to be restrained from causing interference with the plaintiffs’ right of using the said approach to their respective fields through the abovesaid fields of the defendants. 5. The defendants when put to notice, by contesting the suit, in preliminary, have raised various objections qua the maintainability, valuation and jurisdiction of the trial Court etc. On merits, while claiming that the land belonging to the plaintiffs was barren (banjar) up to 1980, they never used the edges of the fields of the defendants to have access to their land for carrying out agricultural pursuits. While disputing the sale-deeds and ownership as well as possession of the plaintiffs over the land in question, it has been claimed that the sale thereof being violative of the provisions of Registration Act, is void abinitio and as such the land in question should vest in the State of H.P. It is denied that there exists a path over their field bearing Kh. Nos. 697, 774 or 775. Points A to B of the Tatima, allegedly prepared by the Patwari, are against the true facts of the case being prepared in connivance with the plaintiffs. No such path is stated to be shown in Shajra of Up-Mohal Powari. The indication drawn in the form of a line in the Shajra infact is local water channel and not a path. The plaintiffs allegedly manipulated and created a false tatima which is contrary to the possession reflected in the Shajra on the spot. No such path is stated to be shown in Shajra of Up-Mohal Powari. The indication drawn in the form of a line in the Shajra infact is local water channel and not a path. The plaintiffs allegedly manipulated and created a false tatima which is contrary to the possession reflected in the Shajra on the spot. The complaint under Section 133 Cr.P.C. filed by the plaintiffs against one Liaq Ram and the defendants allegedly stands dismissed by the Sub Divisional Magistrate, Kalpa. Another complaint in which the plaintiffs have claimed that the disputed path is the only path available for them to have access to their fields is stated to be pending before the SDM, Kalpa. The plaintiffs, who allegedly are claiming the path illegally through the fields of the defendants, are influential persons and they intend to carve out a new path which is not legally permissible. It is denied that the defendants had blocked the path in question in the year 1992 as no such path is in existence on the spot. 6. On such pleadings of the parties, the following issues were framed: “1. Whether the plaintiffs have customary right of easement to pass through the disputed land as alleged? OPP. 2. Whether the defendants have raised temporary structure over the disputed path and thereby blocked the same as alleged? OPP. 3. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed for? OPP. 4. Whether the plaintiffs are entitled for mandatory injunction? OPP. 5. Whether the plaintiffs have no locus-standi to file the present suit? OPD. 6. Whether the suit does not disclose any cause of action and therefore, liable to be dismissed? OPD. 7. Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction? OPD. 8. If issue No. 7 is proved whether this Court has nopecuniary jurisdiction to try the present suit? OPD. 9. Whether the suit is not competent in view of preliminary objection No. 7? OPD. 10. Whether the suit is barred by limitation? OPD. 11. Whether the suit is bad for mis-joinder of the parties? OPD. 12. Relief.” 7. Now, if coming to the evidence, comprising oral as well as documentary, the copy of ‘Wazib-ul-Arj’ is Ext. PB. OPD. 9. Whether the suit is not competent in view of preliminary objection No. 7? OPD. 10. Whether the suit is barred by limitation? OPD. 11. Whether the suit is bad for mis-joinder of the parties? OPD. 12. Relief.” 7. Now, if coming to the evidence, comprising oral as well as documentary, the copy of ‘Wazib-ul-Arj’ is Ext. PB. The relevant extract of the same reads as follows: ^^u- Qly dk'r djrs le; gy ds cSy [kM+h Qly ds gksrs gq, Nhdk ;k jLlh e¡qg esa yxkdj ,d nwljs dks eyfd;r ls fcuk jksds Vksds ys tk ldrs gSA i- ,d nwljs dh ethZ ls euq"; ds pyus ds okLrs tks dk'r djus ls eknwe gks tkrs gS vkSj fQj pyus ls tkjh gks tkrs gS] ,sls jLrs tky esa pyus dh dksbZ jksd Vksd ugha gSA** 8. The document Ext. PB, therefore makes it crystal clear that as per the customs prevalent in the area, edges of the fields of each other in the area are being used by the local residents to have access to their fields along with bullocks, cattle and for carrying agricultural implements for ploughing/cultivating their fields. The only precaution need to be taken is to tie the mouth of the cattle with a cover made of rope or with rope. The another material piece of evidence is the Tatima Ext. PW-7/A, the same has been proved by PW-7 Kishan Singh, the then Patwari, Patwar Circle Tangling. The Tatima has been prepared by this witness after spot inspection The path in existence is alongside the fields bearing Kh. Nos. 774, 775 and the same is marked A to B in red dotted line. This path, according to him is also in existence over the field bearing Kh. No. 696 and 697. There is nothing to disbelieve the statement of PW-7 Patwari Kishan Singh. 9. The position, as reflected in Tatima Ext. PW-7/A, finds support from the oral evidence as has come on record by way of the testimony of PW- 1 Gian Singh (plaintiff No. 4), who has categorically stated that the path shown in the tatima Ext. PW-7/A crosses through the edges of the fields of defendants and that as per the customs prevalent in the area they are using the same to have access to their fields since time immemorial. PW-7/A crosses through the edges of the fields of defendants and that as per the customs prevalent in the area they are using the same to have access to their fields since time immemorial. As per his further version, defendants did not object to the use of the edges of their fields by the plaintiffs to have access to their fields till June, 1992. It is, however, in the month of June 1992, the defendants blocked the passage in question by way of fencing and putting thorny bushes on the spot. The obstruction was removed by them consequent upon the interim order passed by the Civil Court, however, blocked again in violation of the said order. Not only this, but as per his further version a complaint under Section 133 Cr.P.C. was also filed before SDM, Kalpa. 10. Another material witness examined by the plaintiffs is Balak Ram PW-2, the then Field Kanungo, Kalpa. According to him, Mohal Powari where the land of the parties situates was under his jurisdiction and in the year 1988 when he went to the spot to demarcate the land, he used the path in question. When again he went to the spot to demarcate the land of one Surinder in the year 1990, this path was used by him. In the year 1991, when he evicted one Charan Sukh, he used the said path at that time also. When in the year 1992, he visited the spot as per the direction of the Sub Divisional Magistrate, the path was found to have been blocked by the defendants. The path, according to him, exists along side the edges of water channel. The defendants had blocked the path by putting barbed wire and thorny bushes. Prior to 1992, this path, according to him was open. The suggestion given to him that the path in question as a whole exists on the edges of the water channel has been admitted being correct. It is, thus seen that by putting such suggestion to this witness, the defendants have themselves admitted the existence of path on the spot. 11. PW-3 Kundan Sain and PW-4 Sahi Ram, both have deposed qua the existence of the path in question. According to them, the same was being used by the plaintiffs for taking their cattle to their fields and that no alternative path is in existence for being used by them. 11. PW-3 Kundan Sain and PW-4 Sahi Ram, both have deposed qua the existence of the path in question. According to them, the same was being used by the plaintiffs for taking their cattle to their fields and that no alternative path is in existence for being used by them. They have also deposed about the path blocked by the defendants in the year 1992 by putting barbed wire, thorny bushes and raising construction of kiosk (kutcha dhara). PW-5 Bhagi Dass also belongs to the same village and as per his version also, the path in dispute is the only path for the plaintiffs to have access to their fields. He has also deposed about the customs in the area to use the fields of each other to have access to their land for performing agricultural pursuits through the edges of the fields of each other. Similar is the version of PW-6 Kuljan Tenzin as according to him being the employee of Gian Singh (PW-1), during the period from 1974 to 1980, he used the path in question to have access to the fields of said Sh. Gian Singh for performing agricultural pursuits and to take cattle for ploughing the fields. As per his version also, no other path is in existence to have access to the fields of the plaintiffs. 12. The another material witness is PW-8 Vishwa Karma Negi, the then Tehsildar, Kalpa. He remained posted as such during the period from 1990 to 1994. According to him, the land of the parties situate in Mousima Talingpi and he had visited the same many a times for different purposes. On one occasion, he went there to demarcate the land and at that time he had seen the disputed path in existence on the spot. The path, according to him starts from main road Shong Tong-Purvani, Mauza Balinga and reaches at the orchard of Amar Singh, Subhash and Gian Singh etc. The path runs partly along side the kuhl and partly through the land of defendants. 13. On the other hand, Shiv Ram, defendant No. 4 has stepped into the witness-box as DW-1 and examined Narpur DW-2 and Chet Ram DW-3. The path runs partly along side the kuhl and partly through the land of defendants. 13. On the other hand, Shiv Ram, defendant No. 4 has stepped into the witness-box as DW-1 and examined Narpur DW-2 and Chet Ram DW-3. No doubt, they all have stated in one voice that no path is in existence over the land of the defendants, however, in view of the overwhelming documentary as well as oral evidence produced by the plaintiffs and discussed supra belies their testimony. They, as such, have deposed falsely to defeat the just and legitimate claim of the plaintiffs to have access to their fields through the fields belonging to the defendants. 14. The contentions raised on behalf of the defendants that the plaintiffs have neither pleaded nor proved the existence of any customary right to use path in question are without any substance for the reason that the ‘Wazib-ul-Arj’ Ext. PB amply demonstrate that the custom of using mainds of fields of other right holders is long standing and right holders had been using the mainds of the fields of each other to have access to their respective fields to perform agricultural pursuits. The plaintiffs have sufficiently proved so in the plaint. In order to prove the same, plaintiff No. 4 has himself stepped into the witness-box as PW-1. The remaining plaintiffs’ witnesses, whose testimony is discussed in detail in para supra have also supported the plaintiffs case qua existence of customary rights of right holders to use mainds of the fields of each other to have access to their respective fields. The plaintiffs, as such, have established the existence of customary right on record and as such, learned lower appellate Court has not committed any illegality or irregularity while decreeing the suit to the limited extent of restraining the defendants from causing any interference in the rights of the plaintiffs to use the edges of the fields of the defendants bearing Kh. Nos. 696, 697, 774 and 775 to have access to their fields situated in Up-Mohal Powari Khas, Tehsil Kalpa, District Kinnaur, of course, for performing agricultural pursuits alone. The defendants by way of a direction mandatory in nature, have also been rightly directed to remove the barbed wire and thorny bushes put there to block the path in question and also to remove the construction of kiosk raised on the spot. The defendants by way of a direction mandatory in nature, have also been rightly directed to remove the barbed wire and thorny bushes put there to block the path in question and also to remove the construction of kiosk raised on the spot. The plaintiffs, in modification of the judgment and decree passed by learned trial Court have however been rightly not held entitled to claim path from middle of the fields of the defendants. 15. As a matter of fact, the path in question is not a general or public path and rather exists partly along side water channel whereas partly through the mainds of the fields of the defendants. The same is meant to have access by the plaintiffs to their adjoining fields for the purpose of performing agricultural pursuits. The plaintiffs have satisfactorily proved this part of their case. This path may have not been entered in the revenue record and in girdawris being not general path. As already said, the path in dispute is not a general or public path and rather being used for limited purpose i.e. to have access to the fields to perform agricultural pursuits and as such this path is not permanent and rather temporary being not entered in the revenue record and used by the villagers with mutual understanding and as an arrangement personal to them. Support in this regard can be drawn from the judgment of this Court in Smt. Kamla Devi vs. Uttam Singh, RSA No. 241 of 2004 decided on 20.6.2015. The present, as such, is not a case where it can be said that on account of mis-appreciation and misreading of the evidence, the findings arrived at by the trial Court and affirmed by the first appellate Court are perverse and dehors the evidence. The substantial question of law as arises for determination in this appeal is, therefore, answered accordingly. 16. In view of what has been said hereinabove, there is no force in this appeal and the same is accordingly dismissed. No orders as to costs.