RSA No.1097 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1097 of 2008 (O&M) Date of Decision: December 08, 2009 Bachna Ram and others ...........Appellants Versus Mam Raj @ Mam Chand and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sanjay Verma, Advocate for the appellants. Mr.Varun Gupta, Advocate for respondent No.1 ** Sabina, J. Plaintiff-Mam Raj filed a suit for declaration. The suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Kurukshetra vide judgment and decree dated 16.12.2005. The appeal filed by plaintiff was decreed by the Additional District Judge Kurukshetra vide judgment and decree dated 15.1.2008. Hence, the present appeal by the defendants. The facts of the case, as noticed by the Additional District Judge in paras 2 to 6 of its judgment, read as under:- “ 2.Brief facts leading to filing of the present civil appeal are that Mam Raj had filed a suit for declaration to the effect that he is RSA No.1097 of 2008 2 entitled to a rasta of two gathas from the land of defendants by way of easement of necessity. As per plaintiff, he is owner in possession of land comprised in khewat no.11 min, khatoni no.20, khasra no.194/1,195,196,197,198,199,200,202,203,176,166/2 situated within the revenue estate of village Bargat, Tehsil Thanesar, District Kurukshetra as per jamabandi for the year 1989-90. As per plaintiff, defendants are the owners of the land comprised in khasra no. 183/1/2/,183/1/1/2,183/1/1/1/1, 182,181,180, 1970 situated within the revenue estate of village Bargat, Tehsil Thanesar, District Kurukshetra and land measuring 33 kanas 14 marlas of defendants no. 9 to 12 comprised in khewat no.11, khatoni no.23, khara no.183/1/2190, 101, 192,193 and 194/2 situated at village Bargat, Tehsil Thanesar, District Kurukshetra as per jamabandi for the year 1989-90. 3.As per plaintiff, there is no rasta to the land of the plaintiff and rasta is the easement of necessity for the plaintiff to approach his land. Rasta from southern side has already been existing upto khasra no.183/2 as shown in Ak-sajra and plaintiff is in need of rasta alongwith easter Dol of khasra no.183/1/2, 183/1/1/1/1, 182,181,180, 1979, 179 to reach his land to the width of two gathas. Request was made by plaintiff but to no effect and as such necessity of the suit. 4.Notice of the suit was given to the defendants and defendants put their appearance. In the written statement as well as amended written statement filed by defendants no. 5 to 8 they had taken the preliminary objections that the plaintiff had no locus standi to file RSA No.1097 of 2008 3 and maintain the present suit and this court has got no jurisdiction to entertain and try the present suit and the plaintiff has concealed the true and material facts from the court and as such plaintiff is not entitled to any discretionary relief. The real facts are that the parties had partitioned the land during life time of their forefathers since then the parties were in possession of specific khasra numbers which fell to their share infact plaintiff had sold his land alongwith the rastas which was provided to his land on the basis of partition and now he wants to get the rasta from the land of defendants without any right. Plaintiff has no cause of action to file and maintain the present suit and he was estopped by his own act and conduct from filing the present suit. Preliminary objection was also taken that suit was bad for mis-joiner and non-joinder of necessary parties. 5.On merits, defendants took the plea that land was partitioned during the life time of forefathers of the parties and at that time a rasta was provided. However, plaintiff sold the land with right of rasta to others and now defendants were being forced by plaintiff through the present suit to get the rasta illegally. Defendants no. 5 to 8 prayed that the suit is liable to be dismissed with special costs. 6. Defendants no.1 to 4 and 9 to 11 adopted the written statement filed by defendants no. 5 to 8. Defendants no. 12 and 13 were proceeded against ex-parte before the learned trial Court.” On the pleadings of the parties, the following issues were framed by the trial Court:- RSA No.1097 of 2008 4 “1. Whether the plaintiff is entitled to the relief as claimed for?OPP 2.Whether the plaintiff has no locus standi to file and maintain the present suit?OPD 3.Whether this Hon'ble Court has jurisdiction to try this suit?OPD 4.Whether the plaintiff has concealed the true and material facts from this court?OPD 5.Whether the plaintiff is estopped by his own act and conduct ? OPD 6.Relief.” After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff filed a suit for declaration that he was entitled to a passage from the land of the defendants by way of easement of necessity. Learned trial Court had decided the material issues in favour of the plaintiff but had dismissed the suit of the plaintiff on the ground that the jurisdiction of the Civil Court was barred. In Rishi Parkash and others vs. Director Consolidation of Holdings Haryana Chandigarh and others 2004(2) HRR 78(DB)(P&H) it has been held as under:- "12. We entirely agree with the learned Single Judge and hold that respondent No.1 could not have entertained, much less allowed, the petition filed by the appellants under Section 42 of the Act after 40 years of the finalisation of the consolidation proceedings. 13.We are further of the view that the finding of fact recorded by the learned Single Judge that the proprietors had agreed to give up RSA No.1097 of 2008 5 their right to passage is based on correct appreciation of facts brought on record and there is no reason to disagree with him. In our opinion, it was not a case of providing passage by modifying the consolidation scheme. Rather, it was a case of blocking the passage by private respondents. Therefore, the only remedy available to the appellants was to file a civil suit., Thus Court in Mehar Chand vs. State of Haryana and others, 1971 PLJ 562 has held that the Additional Director has no jurisdiction to order removal of encroachment on the path provided in the scheme of consolidation prepared under the Act in exercise of his powers under Section 42 of the Act and that proper remedy for the aggrieved party in such situation is to approach the civil Court or the criminal Court. Thus, the second contention of the learned counsel is devoid of merit and is liable to be rejected". Thus, the jurisdiction of the Civil Court in the present case was not barred. The plaintiff had claimed the passage on the ground of easement of necessity to enable him to reach his land. Plaintiff had successfully established that the disputed passage was a necessity for him to reach his land and the said fact was not even disputed before the learned Additional District Judge. There was no other alternate passage available to the plaintiff to reach his land. Before the learned Additional District Judge, the only dispute raised was as to whether a civil Court had the jurisdiction to deal with the matter or not. Since the Civil Court had jurisdiction to deal with the matter, the learned Additional District Judge had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second RSA No.1097 of 2008 6 appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge December 08, 2009 arya