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2019 DIGILAW 741 (HP)

Kalyan Singh v. Kartar Singh

2019-06-20

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal has been maintained by the appellant, who was the plaintiff before the learned trial Court (hereinafter to be called as “the plaintiff”), laying challenge to the judgment and decree, dated 03.02.2016, passed by learned Additional District Judge, Hamirpur, H.P., in Civil Appeal No. 139/12 RBT 88/13, 72/14, whereby the judgment and decree, dated 17.05.2012, passed by learned Civil Judge (Sr. Div.), Nadaun, District Hamirpur, H.P, in Civil Suit No. 254/2002 was set aside. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal are that the plaintiff filed a suit for declaration, mandatory injunction, as well as recovery of Rs. 10,000/- qua land comprised in Khata No. 9, Khatauni No. 20, Khasras No. 96/1, 154/1, 167, 179, 184/1, 205, 205/1 and 208, measuring 1-97-11 hectares, situated in Village Jangal-Khor, Mouza Jalari, Tehsil Nadaun, District Hamirpur, H.P. as per Misal Hakiat Bandobast Jadid Sani 1994-95 (hereinafter to be called as “suit land No. 1”). As per the plaintiff, the defendant-respondent is owner in possession of land comprised in Khata No. 10, Khatauni No. 21, Khasra Kita 7, measuring 1-97-93 hectares and Khata No. 4 min, Khatauni No. 11 min, Khasras No. 106 and 181, measuring 0-08-16 hectares situated in village Jangal-Khor, Mouza Jalari, Tehsil Nadaun, District Hamirpur, H.P. as per Misal Hakiat Bandobast Jadid Sani 1994-95 (hereinafter to be called as “suit land No. 2”). Earlier, the land comprised in Khatas No. 9 and 10 was exclusively owned and possessed by the mother of the parties, Smt. Malook Dei and somewhere in the year 1995, she gifted the said land to the plaintiff and the defendant. However, prior to 1995 Smt. Malook Dei alongwith other villagers approached the authorities concerned for construction of road from village Jajoli to village Jangal-Khor upto her house. The authorities on acceding to the request, carried out survey of the road upto old house of Smt. Malook Dei, which was approved by Engineer-in-Chief vide letter dated 17.04.1994 for a length of 1.250 kms, touching the old house of Smt. Malook Dei. In September, 1994 PWD, B & R Sub Division Dhaneta deployed bulldozer and the road was carved out upto complete length through present Khasras No. 73 and 70 partly and Khasras No. 106, 181 and 105. In September, 1994 PWD, B & R Sub Division Dhaneta deployed bulldozer and the road was carved out upto complete length through present Khasras No. 73 and 70 partly and Khasras No. 106, 181 and 105. At that time, Khasra No. 105 was owned by Smt. Malook Dei and Khasras No. 106 and 181 by Panjab Singh and Bimla Devi, whereas Khasra No. 70 by both of them alongwith one Krishni Devi. At that time, no objection was raised to the proposed construction. However, during the year 1997 when PWD B & R started soling work from point 0.000 to 1.051 km, the defendant obstructed the same from point 1.051 km to 1.250 km. Thereafter, the concerned department carried out work upto 0.975 Km, because beyond same it was obstructed by the defendant, who beyond point 0.975 Ks to 1.051 Km himself laid concrete, as he had become owner of Khasras No. 105, 106 and 181. He also fenced the common boundary line of Khasras No. 105 and 184/1 by completely blocking ingress and outgress of the plaintiff to the land and for his house situated over suit land No. 1. Owing to said acts of the defendant, the plaintiff has been deprived of cultivation of his land, which is rendered barren. According to plaintiff, as per custom, he has a right to take tractor for the purpose of agriculture and the purposes subservient to the agriculture. Thus, the plaintiff suffered a loss to the tune of Rs. 10,000/- and is suffering it continuously. Hence, the present suit. 3. In written statement, preliminary objection qua maintainability, limitation, estoppel and valuation were taken. On merits, it has been averred that mother of the parties gifted her property in their favour by way of separate and individual Khasra numbers and they are in possession of the same. The road was constructed in place where there was Gair Mumkin passage. Beyond that, there was exclusive land of the defendant and he himself has constructed the passage and mettled the same for his personal use. He has also put up grills and boundary walls. The construction of the passage and its use is for the last 10-15 years and during this period, no right was ever exercised by the plaintiff over the same. The plaintiff is having separate passage and is carrying his bullocks and tractor through the land of other villagers. He has also put up grills and boundary walls. The construction of the passage and its use is for the last 10-15 years and during this period, no right was ever exercised by the plaintiff over the same. The plaintiff is having separate passage and is carrying his bullocks and tractor through the land of other villagers. There is no passage through the land of the defendant in a manner, as claimed by the plaintiff, nor any construction of road or soling was done by the department, as alleged. The gate has been erected by the defendant on the boundary of his land and the plaintiff has no right to access the road, as suit land No. 2 is exclusive property of the defendant. The easementary rights claimed by the plaintiff were also denied in the written statement. 4. By filing replication, the contents of the plaint were reasserted. On the pleadings of the parties, the learned trial Court on 01.06.2004 framed the following issues for determination and adjudication: “1. Whether the plaintiff has acquired easementary right by way of necessity to use the road/path existing on the land of the defendant, as alleged? OPP 2. Whether the plaintiff is entitled for the relief of mandatory injunction, as alleged? OPP 3. Whether the plaintiff is entitled to recover Rs. 10,000/- as damages and the cost of the suit, as alleged? OPP 4. Whether the suit is within time? OPD 5. Whether the suit is not maintainable, as alleged? OPD 6. Whether the plaintiff is estopped from filing the suit by his act and conduct, as alleged? OPD 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD 8. Relief.” 5. After deciding issues No. 1 to 4 in affirmative and issues No. 5 to 7 in negative, the suit of the plaintiff was decreed. Subsequently, the defendant maintained an appeal before the learned first Appellate Court, which was allowed and the judgment and decree of learned trial Court was set aside. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law: “1. Whether the learned Appellate Court has not appreciated the document Ext. PW-3/G Shrayat (Wajeb-al-arz) to its true perspective? 2. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law: “1. Whether the learned Appellate Court has not appreciated the document Ext. PW-3/G Shrayat (Wajeb-al-arz) to its true perspective? 2. Whether the learned Court below has not misread and misappreciated the evidence and the judgment and decree passed by the learned Appellate Court is perverse? 3. Whether the other documents are not appreciated by the learned Appellate Court to its true perspective and the judgment and decree is perverse? 6. Sh. Kalyan Singh, appellant, has argued that the judgment and decree passed by learned lower Appellate Court is based upon surmises and conjectures and the learned lower Appellate Court has failed to take into consideration the evidence and not appreciated it in an appropriate manner. He has further argued that when it has come on record that the road was constructed by PWD, which is blocked by the respondent by putting the gate, there is no other conclusion other than that the respondent has blocked the path and thus the judgment and decree passed by learned lower Appellate Court deserves to be set aside. 7. On the other hand, Mr. K.D. Sood, learned Senior Counsel appearing on behalf of the respondent has vehemently argued that the judgment and decree passed by learned lower Appellate Court is in accordance with law. He has further argued that there is alternative path to the house of the appellant and by way of present proceedings, he only wants to use the land of the respondent, as a road. He argued that the land is never used as a road at any time and it is the appellant who is making out a new case to grab the land of the respondent. In support of his contentions, learned Senior Counsel has referred to the evidence led by the parties and argued that as there is no substantial question of law involved in the present appeal, the appeal deserves dismissal. 8. In rebuttal appellant, Sh. In support of his contentions, learned Senior Counsel has referred to the evidence led by the parties and argued that as there is no substantial question of law involved in the present appeal, the appeal deserves dismissal. 8. In rebuttal appellant, Sh. Kalyan Singh has argued that the respondent, who is his real younger brother has blocked the road and the evidence on record shows that the road/path which was constructed by PWD is there and in these circumstances, the judgment and decree passed by learned lower Appellate Court is based upon complete mis-appreciation of evidence and the same deserves to be set aside by re-appreciating the evidence correctly. 9. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 10. To prove its case, the plaintiff, Kalyan Singh has submitted his examination-in-chief upon affidavit, wherein he testified about his claim to take the tractor for the purpose of agriculture, which is obstructed by the defendant. He further testified that due to putting of gate by the defendant, about 19 kanals of his land is lying un-cultivated. He also testified about the statement of custom enabling him to take tractor for the purpose of cultivation and purposes subservient to agriculture. In cross-examination, he admitted that before gate is put by the defendant, there is 2 1/2 feet wide path, again stated 4-6 feet wide path. He admitted that the aforesaid path leads to his abadi, as well as to the fields, however he denied that he takes tractor also through that path, as if the path is merely 2 1/2 feet wide, tractor cannot be taken. 11. PW-2, Manish Kumar, Assistant Engineer, HP PWD, Sub-Division Dhanera, Hamirpur, in his cross-examination has deposed that the road up to point 1,051 kilometers has not been acquired by his Department and he is also not aware of the Khasras number through which the said road would be passing. However, he testified that from National Highway to Village Jangal-Khor upto 1,051 kms the road is constructed on the Government expenses. 12. PW-3, Ashok Kumar, Patwari, has proved the revenue record. PW-4, Chameli Devi, has admitted in her cross-examination about a path, but she denied that this path is 6 feet wide and claimed the same to be 3 feet wide. 12. PW-3, Ashok Kumar, Patwari, has proved the revenue record. PW-4, Chameli Devi, has admitted in her cross-examination about a path, but she denied that this path is 6 feet wide and claimed the same to be 3 feet wide. PW-5, Urmila Devi, also supported the case of the plaintiff, but regarding the path going towards the house of the plaintiff and other before the gate, she stated it to be incorrect that it is 5-6 feet wide and claimed the same to be 3 feet wide. 13. On the other hand, defendant Kartar Singh, while appearing in the witness box as DW-2 has deposed that HP PWD had constructed a link road to village Jangal-Khor from Nadaun-Hamirpur road through Gair Mumkin Gohar and also made the same pucca. He on leaving 15-20 feet path as katcha has constructed the same up to his house. He erected gate at his boundary and inside the same and he has made the path pucca by laying concrete and cement. In order to protect his land, he has fenced the same. He denied the claim of the plaintiff that the road was constructed by HP PWD upto the old house of Malook dei, which was end point of survey as 1.250 kilometers. He also denied the fact of taking tractor by the plaintiff through the disputed path. He deposed that from the road constructed by HP PWD, a pucca path of 5-6 feet wide, passes towards the house of the plaintiff, Chameli Devi and Rasil Singh and one pucca path is also going separately to the Harijan locality. DW-1, Balwant Singh and DW-3, Dharam Singh, have also supported the version of DW-2, Kartar Singh on material aspects. 14. From the evidence which has come on record it is clear that the land was gifted to the parties by their mother, which shows that the land was one tenement and both plaintiff and defendant has acquired the land from the one owner, i.e. their mother. The land now a days is required to be cultivated by tractor and the land owned by the plaintiff requires passage for tractor through the land of the defendant. The land now a days is required to be cultivated by tractor and the land owned by the plaintiff requires passage for tractor through the land of the defendant. Meaning thereby that the land of the plaintiff is dominant and land of the defendant is servient and in these circumstances the dominant heritage has a right through the servient heritage, because whosoever enjoys dominant heritage, for the effective enjoyment of the dominant heritage has easementary right to enjoy servient heritage, when both are part of one estate. Consequently, this Court finds that the findings recorded by learned trial Court are in accordance with law and after appreciating the evidence which has come on record, including Ext. PW-3/G Shrayat (Wajeb-al-arz) correctly and also the plaintiff has right by way of easement of necessity as provided under Section 13 of the Indian Easements Act. The statement of PW-2 also shows that the road was constructed by PWD upto the place where the gate is erected. Beyond the gate, the whole land was belonging to the mother of the parties and after she gifted the land, the land was given to the plaintiff and defendant by the mother of the plaintiff, which was earlier part of the one estate. 15. Further, the gate was constructed later on when the land was partitioned. Meaning thereby that earlier there was no hindrance, so, can the defendant create hindrance for the smooth passage of the tractor?, “the answer is no”. The version of the defendant that if the tractor is taken by the plaintiff, the mainds would be damaged cannot be favored, because a deliberate damage would not be done by the plaintiff and denial to take the tractor through the land of the defendant would lead to turning a big chunk of land of the plaintiff barren, as now a days ploughing for cultivation through bullocks is not commercially available. Further the customary right of the plaintiff to take the tractor through the land of the defendant, as claimed, has been proved. It has also been proved that even beyond the gate fixed by the defendant the soling was done by PWD. PW-2 in his statement has testified that from National Highway to Village Jangal-Khor, the road is constructed on the Government expenses upto the gate now raised by the defendant. It has also been proved that even beyond the gate fixed by the defendant the soling was done by PWD. PW-2 in his statement has testified that from National Highway to Village Jangal-Khor, the road is constructed on the Government expenses upto the gate now raised by the defendant. Consequently, the plaintiff has a customary right of easement to use the road and path from the suit land for the purpose of cultivation and other purposes subservient to agriculture. So, the defendant is required to remove the obstruction and to allow the plaintiff to exercise the customary right of easement to take and bring back the tractor from his land. 16. In the given facts and circumstances of the case, this Court finds that the judgment passed by learned lower Appellate Court is perverse, as learned Court has failed to appreciate the document, Ext. PW-3/G Shrayat (Wajeb-al-arz) correctly and to its true perspective and has come to the conclusion, which is not at all possible, so substantial question of law No. 1 is answered accordingly. As far as substantial questions of law No. 2 and 3 are concerned, learned lower Appellate Court has misread and misappreciated the evidence, as well as the documents which has come on record and findings arrived at by learned Court are thus perverse and not sustainable in the eyes of law, so substantial questions of law No. 2 and 3 are answered accordingly. 17. Consequently, for the reasons as discussed hereinabove, the present appeal is allowed and the judgment and decree, passed by the learned lower Appellate Court is set aside and judgment and decree passed by learned trial Court is affirmed. However, in the peculiar facts and circumstances of the case, parties are left to bear their own costs, as they are real brothers. 18. The appeal, so also pending application, if any, stand disposed of accordingly.