RSA 2920 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on November 30,2009. Kulwant Singh and another -- Appellants vs. Jodh Singh and others --Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.V.K.ShuklaAdvocate, for the appellants Rakesh Kumar Jain, J: (Oral) This is defendants' appeal against the judgment and decree of First Appellate Court where the suit of the plaintiff for declaration and consequential relief of permanent injunction has been decreed. The plaintiff filed a suit for declaration to the effect that he alongwith defendant No.3 to 11 are owners in possession of land measuring 31 kanals 6 marlas situated in village Moga Jit Singh, District Moga which included the farm-house shown 'red' in the site plan and for mandatory injunction directing defendant Nos. 1 and 2 to close their illegal openings for doors, windows, Ventilators, parnalas, drains.etc. on the southern side of their house towards the suit property opened under the garb of injunction suit filed by them against strangers on 15.2.1999 and for permanent injunction restraining defendant Nos.1 and 2 from affixing/installing any type of doors, windows, ventilators. Etc. in the RSA 2920 of 2009 2 openings made by them towards the suit property and further from throwing their waste water and rubbish etc. towards the suit property of the plaintiff and defendant nos. 3 to 11 permanently. The case set up by the plaintiff is that they along-with defendant Nos. 3 to 11 are owners in possession of the suit property. One Takhat Singh was also co-owner of the suit property who has since expired leaving behind defendant Nos. 3 and 4 as his legal heirs. Defendants Nos. 3 to 11 have been impleaded as performa defendants as no relief has been sought against them. Main thrust of the suit is only against defendant Nos. 1 and 2 who have their residential houses, shown in green colour, in the site plan on northern side of the property of the plaintiff and defendant Nos. 3 to 11. On the western side of the property of defendant Nos. 1 and 2, there is a public road. The property shown red in the site plan is in the ownership of the plaintiff and defendant Nos. 3 to 11 which is out of the total suit property. Defendant Nos. 1 and 2 purchased the property out of khasra No.114/30 khewat No. 607 and out of this land they have already sold about 1 marla to one Amarjit Singh. Khasra No.114/30 abuts Kotkapura road. The private passage has been left out by the plaintiff and defendant Nos. 3 to 11 in their private property for approaching their tubewell. It is further averred that defendant Nos.1 and 2 had filed a suit for permanent injunction against the strangers and under the garb of decree in that suit, they have forcibly and illegally made openings for doors, windows, ventilators, parnalas, drains etc. towards the property of the plaintiff and defendant nos. 3 to 11 without any right. It is further averred that defendant Nos.1 and 2 had agreed before the Collector, Moga to close the said illegal openings and were closed in the presence of revenue RSA 2920 of 2009 3 authorities,but thereafter, they forcibly and illegally made openings towards the private property of the plaintiff and defendant Nos 3 to 11. On the southern side of the house of defendant Nos.1 and 2, there is a private passage of the plaintiffs which is exclusively owned by them and defendant Nos.3 to 11. Defendant Nos.1 and 2 have no right to interfere in the peaceful possession of the plaintiff and defendant Nos. 3 to 11. Hence this suit. In the joint written statement filed by defendant Nos.1 and 2, it has been alleged that the plaintiffs and defendant Nos.3 to 11 have no concern with the property in question. They have only concern with the passage running on the southern side of their residential house which is being used by them continuously since 11.4.1991. The doors, windows and ventilators of their houses already exist. They have their residential house and on the southern side of their house, there is running passage from road to government primary school. They have purchased their house out of khasra No.114/30 and the passage is on the southern side of their house. The Collector Moga had no right to close the doors, etc. on the southern side of the house of the defendant Nos. 1 and 2 . On the southern side, there is a government primary school. The teacher, students and other approach the school through this passage, and thus they have every right to use it. In the written statement filed by defendant Nos. 3 to 11, the claim of the plaintiffs was admitted in toto and the averments made in the written statements filed by defendant Nos.1 and 2 were denied by the plaintiffs in their replication. On the pleadings of the parties, following issues were framed:- RSA 2920 of 2009 4 1.Whether the plaintiff is entitled to declaration as prayed for ?OPP. 2.Whether the plaintiff is entitled to permanent injunction ? OPP 2-A.Whether the plaintiff is entitled for mandatory injunction? OPP 3.Whether the suit is not maintainable? OPD 4.Whether he plaintiff is estopped to file the suit by his own act and conduct ? OPD 5.Whether the suit is bad for want of mis-joinder and non-joinder of necessary parties ? OPD 6. Relief: During the pendency of the suit, defendant Nos. 3 to 11 remained absent and were proceeded against ex-parte. In order to substantiate his claim set up in the plaint, the plaintiff examined Major Singh as PW-1, Sukhdev Singh as PW-2, Pritam Singh Patwari as PW-3 and himself as PW-4,whereas defendant Nos. 1 and 2 examined Ashok Kumar, Deed Writer as DW- 1, Kulwant Singh (defendant No.1) as DW-2, Sh.B.S.Dhaliwal,Advocate as DW-3 and Devinder Singh Gill Draftsman as DW-4. The defendants tendered copy of order dated 27.5.1999 as Ex.D-5. Issue Nos. 1,2 and 2-A are the material issues which were taken up together by the trial Court and decided against the plaintiff. Ultimately, the suit of the plaintiff was dismissed vide judgment and decree dated 05.2.2008. The first Appeal preferred by the plaintiff,however, was allowed by the learned Appellate Court vide his judgment and decree dated 18.2.2009. Defendant Nos. 1 and 2 being aggrieved against the judgment RSA 2920 of 2009 5 and decree have preferred the present appeal in which the learned counsel for the appellants have basically raised two questions of law (i) as to whether the suit for declaration without seeking possession could be decreed (2) whether the appellants by using the passage in question for a long time have not acquired easementary right. It is submitted by the learned counsel that the appellants had filed a suit for declaration without seeking relief of possession, therefore, the suit merely for declaration is not maintainable. In this regard, he refers to the proviso to Section 34 of the Specific Relief Act, 1963 (for short, 'the Act') which says that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so, In this regard, Section 34 of the Act, needs to be noticed, which is reproduced below:- “34. Discretion of court as to declaration of status or right. - -Any person entitled to any legal character; or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief : Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so, Explanation : A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee”. RSA 2920 of 2009 6 In the present case, the contention raised by learned counsel for the appellants is totally misplaced because the plaintiff has not only prayed for declaration but has also prayed for consequential relief of mandatory injunction which flows from the facts of the case. Therefore, the argument by learned counsel for the appellant that the plaintiff's suit is not maintainable for want of seeking consequential relief of possession has no force and as such, it is repelled. Second argument raised by learned counsel for the appellant is with regard to easementary right as he has framed question of law as to whether the appellant by using the passage in question for a long period have not acquired easementary right. In this regard, even as per the case of the appellants, they have purchased the house in question out of khasra No.114/30 and have been using the passage in question since 11.4.1991. The suit was instituted in the year 1999. Section 15 of the Indian Easementary Act, 1982 provides for acquisition by prescription which is reproduced below:- 15. Acquisition by prescription--Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, RSA 2920 of 2009 7 the right, to such access and use of light or air, support, or other easement, shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. According to the above provisions, right of way or any other other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, such right becomes absolute thereafter. The period of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. In the present case, however, right of easement has not matured in favour of defendant Nos 1 and 2. No other question of law has been raised before this Court. In view of the above discussion, I do not find any merit in this appeal which is based upon pure finding of fact and the same is hereby dismissed though without any order as to costs November 30,2009 (Rakesh Kumar Jain) RR Judge