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2021 DIGILAW 794 (HP)

SATYA DEVI v. ASHA DEVI

2021-10-01

CHANDER BHUSAN BAROWALIA

body2021
JUDGMENT : Chander Bhusan Barowalia, J. 1. By way of the present appeal, appellants have challenged the judgment and decree passed by the Court of learned District Judge, Hamirpur, in Civil Appeal No. 19 of 2007, dated 01.08.2008, vide which, the learned First Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Junior Division), Court No. II, Hamirpur, in Civil Suit No.128 of 2002, dated 16.12.2006. 2. Material facts necessary for adjudication of this Regular Second Appeal are that respondents-plaintiffs (hereinafter referred to as 'plaintiffs) maintained a suit for permanent prohibitory and mandatory injunction against the appellants-defendant (hereinafter referred to as 'defendant) alleging therein that the defendant alongwith other co-owners are owner-in-possession of the suit land, comprised in Khata No.106, Khatauni Nos.117 and 118, Khasra No.465/84 and 466/84, Kita-2, measuring 6 kanals 15 marlas, (hereinafter referred to as suit land) situated at Tika Sadhrian, Mouza Bamson, Tehsil Bhoranj, District Hamirpur, H.P. It is alleged that there is a passage two and half feet wide passing through Khasra No.465/84 and 466/84, which starts from State Highway PWD Road Patta-Awah Devi and passage leads to the house and cattle sheds of the plaintiffs and other villagers. This passage is being used by the plaintiffs and other villagers from the time of their ancestors without any interruption and hindrance. Even otherwise also, the defendant also using the passage from the time of their ancestors. Thus, plaintiffs and other villagers are entitled to use the said passage without any interruption and hindrance on account of easement of necessity and the said passage also shown in site plan, which is, Ex.PW4/A. It was "Kucha" passage and made it "Pucca" by Gram Panchayat, in the month of January, 1998. Thereafter, defendant tried to close the said passage in November, 1999, when an application was moved before the Gram Panchayat. A compromise was arrived at between the parties neither the defendant will stop any person from using the said passage nor will close the passage. 3. The suit of the plaintiffs were resisted and contested by the defendant by filing written statement and taking preliminary objections that the suit is not maintainable, plaintiffs have no cause of action and have no locus standi to file the suit. On merits, it is averred that there is no path over the suit land and so, there is no question of closing the passage. 4. On merits, it is averred that there is no path over the suit land and so, there is no question of closing the passage. 4. From the pleadings of parties, the learned Trial Court framed following issues: "1. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction and mandatory injunction, as prayed for? OPP. 2. Whether the suit is not maintainable in the present form ? OPD. 3. Whether the plaintiffs have no cause of action in the present suit ? OPD. 4. Whether the plaintiffs have no locus standi in the present suit ? OPD. 5. Relief." 5. The learned Trial Court after deciding issue No. 1 in favour of the plaintiffs, issue Nos.2 to 4 in negative, decreed the suit. 6. Feeling aggrieved thereby defendant maintained first appeal before the learned First Appellate Court, assailing the findings of learned Trial Court being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned First Appellate Court affirmed the findings of the learned Trial Court. Now, appellants have maintained the present Regular Second Appeal, which was admitted for hearing on 27.10.2009, on the following substantial question of law: "Whether the plaintiffs are entitled to relief of permanent prohibitory injunction and mandatory injunction on the basis of easement of necessity?" 7. Mr. S.D. Gill, learned counsel for the appellants has argued that there is no easement of necessity, as there is no alternative path from the land of the defendant. He has argued that the path from the land of the defendant was not existing and it is only being used by way of shortcut, as the plaintiffs want to use the path and entire land of the defendant is being made waste. He has further argued that there is no path shown in the revenue record. Had the case of the plaintiffs that there is a path existing from the time immemorial, the same should have been definitely recorded in the revenue record. He has further argued that defendant being a poor person and taking advantage of the fact that plaintiffs-respondents want to use the path as shortcut without any reason. 8. On the other hand, Mr. Jagdish Thakur, learned counsel for the respondents has argued that the case as pleaded by the defendant is not the same. He has further argued that defendant being a poor person and taking advantage of the fact that plaintiffs-respondents want to use the path as shortcut without any reason. 8. On the other hand, Mr. Jagdish Thakur, learned counsel for the respondents has argued that the case as pleaded by the defendant is not the same. He has argued that there is a easement by way of prescription and the defendant has worked, as a mason, when the path was being "Pucca" and that is the reason, he has not appeared before the learned Trial Court. When the path is being made "Pucca" by the Gram Panchayat, plaintiffs have a every right to use the path and the path is being used from the time immemorial. 9. In rebuttal, learned counsel for the appellants has argued that the path does not exist there and it is only by force that the plaintiffs want to use this path and further, there is an alternative path to the house of plaintiffs and there is no easement of necessity. 10. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 11. In order to prove its case, PW-1, Smt. Asha Devi, deposed that the suit land is situated in Village Sadhrian and there is a passage existing over the suit land. The said passage was earlier made Pucca" by the Gram Panchayat, Sadhrian. She has deposed that defendant-Bhagat Ram, worked as a mason in constructing the said passage. The passage is being used by the plaintiffs and other villagers since the time of their ancestors. She has further deposed that in the year 1998, defendant-Bhagat Ram, tried to close the passage, but the same was got opened for General Public with the help of Gram Panchayat. In her cross-examination, she has stated that she does not know, on which, khasra number, the passage is existing. PW-2-Parkash Chand, Secretary, Gram Panchayat, Sadhrian, deposed that construction over the passage took place w.e.f. 1.1.1998 to 20.1.1998. Defendant-Bhagat Ram, worked as a mason and had received a payment of Rs. 1159/-. In his cross-examination, he has stated that Muster Roll, Ex.PW2/A, has been prepared by the Ward Panch. He has neither signed nor certified it. He has admitted that before constructing a passage, permission from the owner of the land had to be taken. Defendant-Bhagat Ram, worked as a mason and had received a payment of Rs. 1159/-. In his cross-examination, he has stated that Muster Roll, Ex.PW2/A, has been prepared by the Ward Panch. He has neither signed nor certified it. He has admitted that before constructing a passage, permission from the owner of the land had to be taken. He has denied that the passage has been constructed in the land of Asha Devi. PW-3, Dharam Singh, Pradhan of Gram Panchayat, Sadhrian, deposed that an old passage exists over the suit land, which was made " Pucca" by the Gram Panchayat, in the year 1998 and as per the Panchayat record, Bhagat Ram, worked as a mason. The said passage starts from PWD main road and leads towards Bhagtera village. Plaintiffs used this passage and there is no other passage available to them. PW-4, Tilak Raj, prepared the site plan, Ex.PW4/A. In his cross-examination, he has stated that he has not obtained any permission to prepare the site plan. He does not know the khasra number of the passage shown in the site plan. PW-5, Bhagwan Dass, stated that the said passage was being made "Puccd by the Gram Panchayat over the suit land, in the year 1998 and Bhagat Ram, worked as a mason. The passage has been used since the time of ancestors of the plaintiffs. DW-2, Rattan Chand, deposed that there exists an ancestral passage over the suit land, which is being used by the plaintiffs. 12. From the perusal of entire evidence on record, the factum with regard to non-existing of alternative path is not proved by the appellants-defendant. Plaintiffs have not proved that there is an alternative path so, the easement of necessity goes. Now, as far as the present path is concerned, the same is not depicted in the revenue record nor the same find mentioned in any settlement of the revenue record. The only evidence which the plaintiffs are leading to the effect that this path was being made 'Pucca' by the Gram Panchayat funds. Even otherwise also, no witness has proved that the path is the same, which is existing there or it is some other path, on which, khasra number it exists, no witness of the plaintiffs can state. The only evidence which the plaintiffs are leading to the effect that this path was being made 'Pucca' by the Gram Panchayat funds. Even otherwise also, no witness has proved that the path is the same, which is existing there or it is some other path, on which, khasra number it exists, no witness of the plaintiffs can state. Without there being any proof with respect to the existence of path through particular khasra number, how it can be said that the path is existing on the spot and through which khasra number. The findings as arrived by the learned Trial Court are perverse, as there is no existing path through the land of the defendant in revenue record. Even, Secretary of the Gram Panchayat, cannot say about the khasra number through which the path passes. Moreover, there is no pleading or proof with respect to the fact that there is no alternative path, so the easement of necessity also goes. In these circumstances, the findings arrived by the learned Trial Court and upheld by the learned First Appellate Court, are perverse, without there being any document or evidence on record with respect to the non-existing of any alternative path and so, they are required to be set aside. 13. This Court is of the considered view that the learned Trial Court should have appointed a Local Commissioner, to ascertain the veracity of non-existing of any other alternative path to the house of the plaintiffs from the road, as the learned Trial Court has not done so, the present judgment and decree is required to be set aside and the case is required to be remanded back to the learned Trial Court with a direction to appoint a Local Commissioner, to call a specific report with respect to the existence of any other path to the house of the plaintiffs and thereafter, give a reasoned findings with respect to the easement of necessity. Parties to appear before the learned Trial Court on 29th October, 2021, either in person or through their learned Advocates. 14. In view of the above, the instant appeal is disposed of in the aforesaid terms. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending application(s), if any, shall also stands disposed of. Record of the learned Courts below be sent back immediately.