Himachal Pradesh High Court
RSA/9/2006 of SURESH CHADHA Vs GURU DUTT on 31 December 2018
COURT OF HIMACHAL PRADESH SHIMLA RSA No. 9 of 2006. Reserved on : 21 st December, 2018. Decided on : 31 st December, 2018. Suresh Chadha & another …..Appellants/Plaintiffs. Versus Sh. Gurudatt & Ors. ..Respondents/Defendants. Coram: The Hon’ble Mr. Justice Sureshwar Thakur,
IN THE HIGH COURT OF HIMACHAL PRADESHSHIMLA
RSA No. 9 of 2006.
Reserved on : 21st December, 2018.
Decided on : 31st December, 2018.
Suresh Chadha & another …..Appellants/Plaintiffs.
Versus
Sh. Gurudatt & Ors. ..Respondents/Defendants.
Coram:
.The Hon’ble Mr. Justice Sureshwar Thakur, Judge Whether approved for reporting?[1] Yes.
For the Appellants:Mr. Rajneesh K. Lal, Advocatevice Mr. Sanjeev Sood,Advocate.
For the Respondents 1, 3 (a) to 3(c), 4 and 6: Mr. TekChand, Sharma, Advocate.
For Respondents No. 5: Nemo.
Sureshwar Thakur, Judge.
The instant appeal is directed, against, theconcurrently recorded verdicts by both the learned Courtsbelow, whereby, the plaintiffs, suit for rendition, of, a 1 Whether reporters of the local papers may be allowed to see the judgment?
decree of permanent prohibitory injunction, as well as, fordeclaration qua the suit khasra number(s), was, hencedismissed.
2.Briefly stated the facts of the case are that theplaintiffs are owners of the property and building detailedin the plaint. It is averred that the building of theplaintiffs is known as East View, Kasumpti, building onKhasra No.635. The defendants are owners in possessionof th adjoining property comprised in Khata/KhatoniNo.71/97, Khasra Nos. 610, 611, 616, 676, 628 atKasumpti. The property of the plaintiffs and adjoiningproperty of the defendants are abutted. But between thelanded properties of the parties exist a common passage4-5 feet wide passing through the land of Khasra No.676of the defendants. The passage has been used andenjoyed by the plaintiff after purchase of the land. Earliertheir predecessors had been using the passage sincetime immemorial, without obstruction or interference.
Such usage by them was open, peaceful and hostile. In settlement of 1995, the common passage of KhasraNo.767 was recorded as Rasta Share Aam. Defendantshave no right to interfere or obstruct in usage of path bythe plaintiffs. But in September, 1999, they startedinterfering in peaceful user of the path which plaintiffshad been using for purpose of repair and maintenance ofthe retaining wall of 10 feet high and 50 feet longabutting the common passage.
3.
The defendants contested the suit and filed separate written statements. In their written statement,the defendants controverted the case of the plaintiffs bydenying their allegations. Existence of common passageon land of defendants Khasra No.676 is denied. It is alsodenied that the plaintiffs are owners of the adjoining landto the extent of 1699.55 sq. meters. The plaintiff, inconnivance with revenue officials, got more land recordedin their names in revenue record than their actual entitlement. The plaintiffs had purchased land from ShivRaj Devi, who was owner of 2-2 bighas only. So presentsettlement record showing more possession of theplaintiffs is wrong and illegal. However, defendantsadmits themselves to be owners of the land inKhata/Khauni No.71/95 min and 71/97. But denied theexistence of path upon khasra No.676. It is averred thatneither any path is being used by the plaintiff throughland of the defendants since times immemorial nor theywere using so called common passage peacefully.Settlement was conducted in violation of the mandatoryprovisions of law, which was challenged by way of civilsuit by the defendants. Gair Mumkn Rasta as wronglyincorporated in the revenue record. It is averred that theplaintiffs had not left any set back to repair their retainingwall and cannot claim right over the adjoining land of thedefendants.
4.On the pleadings of the parties, thelearned trial Court struck the following issues inter-se theparties at contest:-
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1. Whether the plaintiffs have the right to use common passage through Khasra No.676 as alleged if so its effect?OPP.to use common passage through Khasra No.676 as alleged if so its effect?OPP.
2. Whether the plaintiffs are entitled to relief of permanent prohibitory injunction, as prayed for?OPP. relief of permanent prohibitory injunction, as prayed for?OPP.
3. Whether the suit is not maintainable in the present form?OPD. in the present form?OPD.
4. Whether the suit has not been properly verified?OPD. properly verified?OPD.
5. Whether the suit is not property valued for the purpose of court fee and jurisdiction?OPD. valued for the purpose of court fee and jurisdiction?OPD.
6. Whether the plaintiffs have not cometo the court with clean hands?OPD.to the court with clean hands?OPD.
7. Whether the plaintiffs havesuppressed the material facts from the court?OPD.suppressed the material facts from the court?OPD.
8. Whether the plaintiffs have no cause of action to file the present suit?OPD.of action to file the present suit?OPD.
5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissedthe suit of the plaintiffs/appellant(s) herein. In an appeal,preferred therefrom by the plaintiffs/appellant(s) herein,before the learned First Appellate Court, the latter Courtdismissed, the appeal and affirmed the findings recordedby the learned trial Court.
6. Now the plaintiffs/appellant herein, haveinstituted the instant Regular Second Appeal, before, thisCourt, wherein they assail the findings, recorded in itsimpugned judgment and decree, by the learned firstAppellate Court. When the appeal came up foradmission, this Court, on 13.01.2006, hence, admittedthe appeal instituted by the plaintiffs/appellant againstthe judgment and decree, rendered by the learned firstAppellate Court, on the hereinafter extracted substantialquestions of law:- Now the plaintiffs/appellant herein, have …7…
1. Whether from the material on record, it wasestablished that the plaintiff had acquiredthe right of passage for repair of theretaining wall and septic tank by necessityas also prescription and the plaintiff had aright of passage which was recorded as GairMumkin Rasta Share Aam to whichpresumption of truth was attached?established that the plaintiff had acquiredthe right of passage for repair of theretaining wall and septic tank by necessityas also prescription and the plaintiff had aright of passage which was recorded as GairMumkin Rasta Share Aam to whichpresumption of truth was attached?
2. Whether from the evidence on record theonly conclusion which could be drawn wasthat the plaintiff had proved the existenceof common public path on the land indispute entitling the plaintiff to use thesame by necessity as also acquisition of thesame by prescription?only conclusion which could be drawn wasthat the plaintiff had proved the existenceof common public path on the land indispute entitling the plaintiff to use thesame by necessity as also acquisition of thesame by prescription?
3. Whether presumption of truth attached tothe revenue records have been ignored andwrong inference drawn which has vitiatedthe findings?the revenue records have been ignored andwrong inference drawn which has vitiatedthe findings?
Substantial questions of Law No.1 to 3:
7. The learned counsel appearing for theappellants, has, contended with much vigour, before thisCourt (i) that in declining the espoused relief to theplaintiff, both the learned courts below rathercommitting, a, grave fallacy, comprised, in theirs mis-comprehending or mis-appreciating, the, import, of, therelevant entries, occurring in Ex.PW1/A, and, in Ex.PW1/B,exhibits whereof are revenue documents, appertaining to
the suit khasra number, (ii) especially appertaining, to,the successive entries, occurring therein, ephatically inthe column of cultivation thereof, wherein ratherreflections occur qua the suit property being depicted, as,Shreaam Rasta, and, also in the column of classificationthereof, the suit khasra number, being depicted as gairmumkin path, (iii) thereupon, when the suit khasranumber(s), were, given the afore self evident graphicbespeaking, made by the afore reflections, rather hence,available for user by the general public, for, ingress intoand egress from, their, respective abodes, (iv) thereupon,the afore suit khasra numbers, hence constituted the aptservient heritage, and, the plaintiffs became, the,dominant owners thereof, along with other members ofthe public, trudging thereon, for the relevant purpose, (v)and, also hence the plaintiffs firmly proving theirs henceacquiring an easementary right of passage, upon, the suitkhasra numbers. However, the afore contention, is, unworthy of any merit, and, is outrightly rejected, (a)given the afore reflections, occurring in the aforeexhibits, not enjoining, theirs being read in isolation,from, oral evidence adduced by the plaintiffs qua thepleaded factum, of, acquisition of right of passage, upon,the suit khasra number(s), rather ensuing qua them, onaccount of immemorial user thereof, by persons residing,in, the locality concerned, (b) nor ipso facto hence heafore reflections, not bestowing, upon, the plaintiff, anabsolute indefeasible right of user of suit khasranumber(s), as an apt passage, (c) besides rather contrarytherewith oral evidence, of, immense potency, obviously,when, undermines veracity thereof, it, also benumbingthe presumption, of truth enjoyed hence by the aforeentries.
8. Nowat, hence, apart from hence negativing,the afore, presumption of truth, enjoyed by the aforereflections occurring, in the afore exhibits, it is also incumbent upon this Court, to further determine,whether, the pleaded factum probandum qua theacquisition of right of passage, upon, the suit khasranumber(s), rather accruing, vis-a-vis, the plaintiffs,imperatively since times immemorial, (i) and,concomitantly, the apt espoused right acquiring themantle of, right of absolute prescriptive user thereof, bythe plaintiffs, (ii) rather hence also coming to be proved,by cogent evidence therewith, being adduced by theplaintiff. In the afore endeavour, PW-1 though testifiedqua his predecessor, using, the suit khasra number.However, his echoing qua therewith is frail, for, want ofhis predecessor(s) stepping into the witness box, (iii)also, for want of other persons, residing in the localityconcerned, making corroborative therewith testifications,with, firm echoings therein qua the user of the contestedsuit path, rather occurring since times immemorial.Reiteratedly, with the afore apt evidence hence being
grossly amiss hereat, rather with PW-2, in histestification, borne in his cross-examination, making anadmission qa the contested suit passage, only leadingupto the house of the defendants, (iv) and, thereafterthough, he also makes, an echoing, qua, it also leading tothe abodes, of the persons residing below the suitpassage, (v) yet in succession thereof, hence failing toname the persons, whose abodes exist below thecontested suit passage. Consequently, the effect(s) ofan incisive reading thereof, obviously does make triteunfoldments, that, the contested suit passage, ratherleading only to the house of the defendants, and,corollary thereof being qua the contested suit passagerather not leading upto the house of the plaintiff, (vi)and, therefrom, the, further inference is qua the plaintiffs,hence, making a false propagation qua theirs henceusing the contested suit passage, for egressing into oringressing from their abodes. Furthermore, with thereafter PW-2 in his cross-examination also making anadmission qua the plaintiffs' hence, for making repairs,of, their septic tank, making user, of, rather a pathalternative, to, the contested suit path, (vii) and, his alsomaking an echoing, that, the plaintiffs, being alsofacilitated, to, effect repairs to the septic tank, from,within, the boundaries of the khasra numbers, as, ownedand possessed by them, (viii) thereupon, a firm clinchinginference, is, garnerable qua the plaintiff, even foreffecting repairs, of, the septic tank, rather holding anapt alternative passage hence to arrive thereupto, (ix)and, when a passage alternative to the suit passage, isavailable hence for the afore purpose, to, the plaintiffs,thereupon, they are barred to espouse that they hencehold any easementary right of necessity, or prescriptionrather to trudge, upon, the suit passage, for any purposewhatsoever.
9. In summa, the afore reliance, upon, the aforereflections, occurring in Ex. PW1/A and, Ex.PW1/B,cannot, (i) subsume the effect of the pleadings, reared bythe plaintiffs in their plaint, wherethrough, they ratherclaim a right of easement by prescription, vis-a-vis, thecontested passage, (ii) reiteratedly when evidenceadduced qua therewith, for reasons aforestated, is bothfrail, and, weak, (iii) nor ipso facto hence the aforereflections, can in the least empower, the plaintiff toclaim a right, of, passage, upon, the contested suitkhasra number(s), (iv) rather rendition of an affirmativedecree, vis-a-vis, the plaintiff would cause an immensecasualty, to, the afore oral evidence adversarial, to theafore reflections, occurring in the afore exhibits, (v)besides would untenably solitarily empower, the,plaintiffs, to, use the suit khasra number(s), as a path,despite, no other person residing in the locality, using it,for the afore purpose, (vi) whereas, for the afore entry to carry any aura of truth or veracity, evident user, of, the suit passage, as a path, by the entire public henceresiding in the locality concerned, was imperative, (vii)thereupon, it appears that the afore entry, is, merely apaper entry, hence carries no relevance, for, enablingthe plaintiffs to derive any strength hence whatsoevertherefrom, (viii) thereupon, the presumption, of, truth, ifany, carried by the afore entriy, is, fully effaced. 10.The above discussion, unfolds, that theconclusions as arrived by the learned first Appellate Courtas also by the learned trial Court, being based, upon aproper and mature appreciation of evidence on record.While rendering the findings, the learned first AppellateCourt as well as the learned trial Court, have not,excluded germane and apposite material fromconsideration. Accordingly, the substantial questions oflaw are answered in favour of the respondents andagainst the appellants.
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11. In view of the above discussion, the present
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11. In view of the above discussion, the present Regular Second Appeal is dismissed. In sequel, thejudgements and decrees rendered by both the learnedCourts below are maintained and affirmed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
31[st] December, 2018.
(jai)
(Sureshwar Thakur)
Judge.