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2023 DIGILAW 1324 (RAJ)

Gauri Shankar S/o Bodu Ram v. Brij Mohan S/o Sadhu Ram

2023-07-07

MAHENDAR KUMAR GOYAL

body2023
JUDGMENT : MAHENDAR KUMAR GOYAL, J. 1. This civil second appeal has been preferred by the appellants/defendants No. 7, 8, 9, 12, 13/2, 13/3, 14/1, 14/2, 17, 18, 22, 23, 24, 25 & 26 (for short “the appellants”) against the judgment and decree dated 26.05.2012 passed by the learned Additional District Judge (Fast Track) No. 2, Sikar Headquarter, Sri Madhopur (for brevity “the learned appellate Court”) in Civil Regular Appeal No. 1/2011 whereby, while allowing the first appeal, the judgment and decree dated 01.12.2010 passed by the learned Civil Judge (Junior Division), Reengus, District Sikar (hereinafter referred to as “the learned trial Court”) dismissing the Civil Suit No. 7/2002 filed by the respondents No. 1 to 3/plaintiffs (for brevity “the plaintiffs”) for declaration and permanent injunction, have been reversed and the suit has been decreed. 2. The relevant facts in brief are that the plaintiffs filed a suit in representative capacity for declaration of easementary right and permanent injunction stating therein that they and the residents of village Dhani Sadhu Wali, Tan Dadiya Rampura, Tehsil Sri Madhopur, have right of way alongside boundary of various khasra numbers and through the land of Khasra Nos. 1958, 1987 & 1988 as described in para no. 2 of the plaint which was in use for hundreds of years. It was averred that it was the only way available to them to have access to their agricultural land and residential houses. Alleging that the defendants were trying to interfere with their right of way, the decree as aforesaid was prayed for. 3. The defendants No. 15 & 16 in their joint written statement admitted the contents of the plaint. The defendants No. 17 & 18 in their joint written statement, denying the averments made in the plaint, submitted that the plaintiffs have alternative ways and no way exists through the land of Khasra No. 1958 under their khatedari on which they have raised construction of a pucca residential house. The defendants No. 7, 8, 9, 11/1 & 12 in their joint written statement denied the existence of the way as claimed in the plaint. 4. On the basis of the pleadings of the parties, the learned trial Court framed twelve issues including relief. After recording evidence of the respective parties, the learned trial Court dismissed the suit vide its judgment and decree dated 01.12.2010. 4. On the basis of the pleadings of the parties, the learned trial Court framed twelve issues including relief. After recording evidence of the respective parties, the learned trial Court dismissed the suit vide its judgment and decree dated 01.12.2010. The civil first appeal preferred there-against has been allowed by the learned appellate Court vide judgment and decree dated 26.05.2012 and the suit has been decreed. 5. Assailing the impugned judgment and decree, learned Senior Counsel for the appellants submitted that the plaint is bereft of the necessary ingredients to constitute an easementary right by prescription as prescribed under Section 15 of the Indian Easement Act, 1882. He, referring to the examination-in-chief of S/Shri Jhabar Singh (PW-1) and Ramniwas (PW-2), would contend that they have stated therein that about 10 years prior to filing of the suit, the subject way was tried to be obstructed by the neighbourer khatedars upon which a deed was written on 01.01.1992 amongst the neighbour Khatedars also endorsed by some of the defendants. 6. Learned Senior Counsel further submitted that although, the suit was filed in the representative capacity and it has also been decreed by the learned appellate Court accordingly; but, no issue was framed with regard to right of the general public to use the way in question. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 26.05.2012 be quashed and set aside and the judgment and decree dated 01.12.2010 passed by the learned trial Court be restored. 7. Per contra, learned Senior Counsel for the plaintiffs would submit that since, the suit was permitted to be filed in representative capacity, the connotation “plaintiffs’ includes the general public and even otherwise also, the mere omission of word “general public” in the issues framed would not affect the validity of the decree impugned. Referring to the contents of the Para No. 2 & 3 of the plaint, he submitted that it was specifically stated therein that the subject way was being used by the plaintiffs and the general public of Dhani Sadhu Wali for last many centuries. Learned Senior Counsel submitted that in the plaint, they did not claim easementary right by prescription; rather, it was stated that it was a customary right as also easementary right of necessity as they did not have any other alternative way. He, therefore, prays for dismissal of the second appeal. 8. Learned Senior Counsel submitted that in the plaint, they did not claim easementary right by prescription; rather, it was stated that it was a customary right as also easementary right of necessity as they did not have any other alternative way. He, therefore, prays for dismissal of the second appeal. 8. Heard. Considered. 9. The first submission made by the learned senior counsel for the appellants with regard to absence of necessary ingredients in the plaint to constitute easement by prescription does not merit acceptance. A perusal of the plaint does not reveal that the plaintiffs have claimed the subject easementary right by way of prescription. Although, it is stated therein that the subject way is in use for last hundreds of years; however, it is also stated therein that it was the only way available to the plaintiffs and the villagers to have access to their agriculture field and residence. While deciding the issue no. 1 on the basis of evidence on record, a specific finding has been recorded by the learned trial court that the subject way is the only way available to the plaintiffs and the villagers to have access to their agricultural field and house. This finding has been upheld by the learned appellate court re-appreciating the evidence on record. In view of this concurrent finding of fact, which has not been shown to be suffering from any perversity, it does not lie in the mouth of the defendants to claim that in absence of specific averment in the plaint as to the disputed way being in use for last more than 20 years peacefully and uninterruptedly, the suit claiming easementary rights could not have been decreed as it was an easement of necessity. 10. 10. Although, in view of aforesaid finding, contention of learned senior counsel for the appellants that since S/Shri Jhabbar Singh (PW1) and Ramniwas (PW2) have stated in their examination in chief that about 10 years prior to filing of the suit, such way was tried to be obstructed by the neighbourer khatedars, no easementary right by prescription accrue, requires no deliberation; but, even otherwise also, this contention has no legs to stand in view of Explanation-II of Section 15 which provides as under: “Explanation II - Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof, and of the person making or authorizing the same to be made.” 11. PW1 and PW2 have stated in their examination-in-chief that the subject way was tried to be narrowed down by some of the neighbourer khatedar about 10 years prior to the filing of the suit; but, it was resolved immediately. They were not suggested during their cross-examination that the way in question was obstructed and it continued so to their knowledge for a period of one year or more. 12. Indisputably, it has not been case of the defendants that the way in question was interrupted and was acquiesced by the plaintiffs for one year after it was done. Neither there was any such interruption for a period of one year nor, in acquiescence. A stray incident of an attempt to narrow down the subject way at a particular point of time by some of the khatedars which was immediately resolved is not sufficient to demolish the acquisition of the easementary right by prescription. 13. The last submission made by the learned senior counsel for the appellants that in absence of any issue with regard to right of the general public to use the way in question, no such decree could not have been passed by the learned appellate court is misconceived and deserves to be rejected. Admittedly, the suit was permitted to be filed in representative capacity on behalf of residents of village Dhani Sadhu Vali. Admittedly, the suit was permitted to be filed in representative capacity on behalf of residents of village Dhani Sadhu Vali. In view thereof, the connotation “plaintiffs” also included the general public and the suit has been decreed accordingly by the learned appellate court. 14. In view of above discussion, it is apparent that the concurrent findings of fact recorded by the courts do not suffer from any such infirmity, illegality, perversity or jurisdictional error so as to warrant interference of this Court under Section 100 CPC. 15. Resultantly, the civil second appeal is dismissed being devoid of any substantial question of law.