(E) Ran Jeet Singh vs Smt. Asha Devi Wife Of Sh. Baldev ...
2021 Latest Caselaw 4831 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                  ON THE 1st DAY OF OCTOBER, 2021
                              BEFORE




                                                                            .
          HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA





                 REGULAR SECOND APPEAL No.562 of 2008
     Between :-





     1. (A) SMT. SATYA DEVI WIDOW OF LATE SH. BHAGAT RAM
     1. (B) ASHOK KUMAR S/O LATE SH. BHAGAT RAM
     1. ( C ) SH. DES RAJ S/O LATE SH. BHAGAT RAM
     1. (D) SH. MAN CHAND S/O LATE SH. BHAGAT RAM
     1. (E) RAN JEET SINGH S/O LATE SH. BHAGAT RAM
     ALL R/O VILL. SADHIRAN, MOUZA BAMSON,





     TEHSIL BHORANJ, DISTRICT HAMIRPUR, H.P.
                                                ......APPELLANTS

     (BY SH. S.D. GILL, ADVOCATE)

     AND


     1.    SMT. ASHA DEVI WIFE OF SH. BALDEV SINGH
     2.    SH. AMAR SINGH S/O SH. KANSHI RAM
     3.    SMT. GEETA DEVI WIDOW OF LATE SH. ANANT RAM
     ALL RESIDENT OF VILLAGE SADHIRAN,
     MOUZA BAMSON, TEHSIL BHORANJ, DISTRICT HAMIRPUR H.P.


                                             ......RESPONDENTS

     (BY SH. JAGDISH THAKUR, ADVOCATE)
            This appeal coming on for orders this day, the Court passed the following :




                                       JUDGMENT

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. 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 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 `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 'Pucca' 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. 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.

                                         (Chander Bhusan Barowalia)
     1st October, 2021                            Judge
       (CS)             r