IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 94 of 2001 Judgment reserved on : 11.5.2011 Date of decision: 27.5. 2011 Swarn Singh …Appellant. Versus Om Parkash and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Mr. Ajay Sharma, Advocate. For the respondents : Mr. K.D.Sood, Advocate for respondents No.1 to 3. Ms. Ruma Kaushik, Addl. A.G. for respondent No.5. Kuldip Singh , Judge The defendant No.1 has come in appeal against judgment, decree dated 12.1.2001 passed by learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No. 12-D/XIII/97 affirming judgment, decree dated 30.11.1996 passed by the learned Senior Sub Judge, Kangra at Dharamshala in Civil Suit No. 11/91. 2. The facts, in brief, are that respondents No.1 to 3 had filed a suit against the appellant in which respondents No.4, 5 and 6 were impleaded as defendants No.2, 3 and 4 respectively. The suit was for declaration that respondents No.1 to 3 have acquired right of passage 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 by easement of prescription over the ‘maind’ (edges) along side the Kuhal comprised in Khasra No. 247, Mohal Jhikli Barol, Mauza Khaniyara and Khasra Nos. 1733 and 1737 measuring 0-08-74 Hectares, Mohal Upperli Barol, Mauza Khaniyara vide jamabandi 1987-88. It was pleaded that respondents No.1 to 3 had right of passage for ingress and egress to their houses and fields situated on land comprised in Khasra Nos. 1823/1728, 1824/1728 Upperli Barol, Mauza Khaniyara. 3. The further case of respondents No.1 to 3 was that judgment and decree dated 16.11.1988 in Civil Suit No. 3 of 1988 are collusive, fraudulent and void and not binding on respondents No.1 to 3. Consequential relief of permanent injunction restraining the appellant and respondents No.4 to 6 from interfering in the easementary right of passage of respondents No.1 to 3 was also prayed. It was alleged that in case appellant and respondents No.4 to 6 succeeded in obstructing the land by raising construction, then a decree for mandatory injunction directing the appellant and respondents No.4 to 6 to remove the obstruction and to restore the suit land to its original position. 4. The appellant, respondents No.4, 5 and 6 contested the suit by filing separate written statements. In the written statement of appellant several preliminary objections have been taken including that the suit has been filed by respondents No.1 to 3 in collusion with respondent No.4. On merits, it has been denied that there is any path along side the Kuhal. The width of the Kuhal has been ordered to be corrected as per judgment, decree in Civil Suit No. 3 of 1988 decided on 16.11.1988 which is binding upon the respondents No.1 to 3. It has been denied that respondents No.1 to 3 were using the passage as claimed by them, 3 there was no passage. The question of acquisition of easementary right did not arise. The houses along side the Kuhal have separate path and not through the edges of the Kuhal. The edges of the Kuhal can only be used for agriculture pursuits and not as a regular path. 5. The respondent No.4 has colluded with respondents No.1 to 3. The allegations of defrauding the Court were wrong. The learned Court in Civil Suit No. 3 of 1988 had taken into account all aspects and given a detailed judgment. The earlier decree was not collusive or fraudulent. The question of closing of passage did not arise as there was no passage. 6. The respondent No.4 in her written statement has taken preliminary objections of maintainability, cause of action, non-joinder of necessary parties, jurisdiction and valuation. On merits, it has been admitted that there was a Kuhal coming from Khaniyara via Upperli Barol to Lower Barol touching the main road. It has been denied that there was a passage of one metre width from road at Barol to Khaniyara. The alleged user of passage by respondents No.1 to 3 and their predecessors for the last 50 years has been denied. It has been denied that Civil Suit No. 3 of 1988 was collusive. The alleged threatened acts of respondent No.4 for raising construction were also denied. 7. The respondent No.5 in the written statement has taken preliminary objections of non-joinder of necessary parties, lack of cause of action, no notice under Section 80 CPC was served and valuation. On merits, it has been denied that there is a perennial Kuhal coming from Khaniyara via Upperli Barol to Jhikli Barol which irrigates the fields and then touches the main road. The passage less than one metre in width is 4 not shown in Aks Shajra as per Wajub-Ul-Arj. The suit land does not pertain to the State of Himachal Pradesh. The Gram Panchayat Dari (Barol) is the owner of the suit land. 8. The respondent No.6 in the written statement has admitted that there is a path along side the Kuhal which is in existence from ancient time and is in general use of all the inhabitants of Barol and others. The existence of Kuhal has also been admitted. The Khasra Nos. 1733, 1737 and 247are owned by respondent No.6. The residents of Barol are using the path and Kuhal water from the beginning. The appellant and respondent No.4 have no exclusive right of use. They cannot raise any construction on the path. The appellant and respondent No.4 have no right to encroach the suit land having no title over it. The respondent No.6 virtually conceded the claim of respondents No.1 to 3 by pleading that the court may pass an appropriate decree or any other relief as deemed fit. 9. The respondents No.1 to 3 filed replication to the written statement of appellant. On the pleadings of the parties, the following issues were framed:- 1. Whether there is a passage to the houses of the plaintiffs through Khasra No. 1733, 1737 and 247 as alleged? OPP 2. If issue No.1 is proved whether the plaintiffs acquired easementary right to use the passage in dispute? OPP 3. Whether the decree dated 16.11.1988 in Civil Suit No. 3/88 titled Swaran Singh vs. H.P.State is the result of fraud, collusion and mis-representation as alleged, if so, its effect? OPP 4. Whether the width of Kuhal comprised in Khata No. 1733, 1737 and 247 is three metres? OPP 5 5. If issue No.4, is proved whether the defendants 1 and 2, are trying to encroach upon any part of the aforesaid Kuhal? OPP 6. Whether the plaintiffs have no locus standi to file the present suit? OPD 7. Whether the plaintiffs have no cause of action? OPD 8. Whether the suit is within time? OPP 9. Whether the suit is not maintainable? OPD 10. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPD 11. Whether the plaintiffs are estopped to file the present suit by their act and conduct? OPD 12. Whether the suit is bad for non-joinder of necessary parties? OPD 13. Whether this Court has no jurisdiction to try the suit? OPD 14. Relief. The issues No.1, 2 and 5 were answered in affirmative, issues No. 3, 4,6 to 13 were answered in negative and the suit was decreed on 30.11.1996. The appeal filed by the appellant in lower Appellate Court against judgment, decree dated 30.11.1996 was dismissed on 12.1.2001, hence second appeal, which has been admitted on the following substantial questions of law:- “Whether both the Courts below have mis-read and mis- appreciated the evidence on record for decreeing the suit of the respondents-plaintiffs for declaration that they have acquired right of passage by easement of prescription over the Maind/boundary along the side of Kuhal?” 10. Heard and perused the record. The learned counsel for the appellant has submitted that the Courts below have mis-read and mis- appreciated the evidence on record while decreeing the suit of 6 respondents No.1 to 3 for declaration that they have acquired the right of passage by easement of prescription over the ‘maind’ along the side of the Kuhal. The learned counsel for respondents No.1 to 3 has submitted that the two Courts below have recorded a finding of fact that respondents No.1 to 3 have right of passage over the ‘maind’ along side the Kuhal. The view taken by the two Courts below emerges from the evidence on record. No substantial question of law is involved in the appeal, he has prayed for dismissal of the appeal. 11. The learned counsel for the appellant has relied Rup Chand vs. Daulatu AIR 1992 H.P. 6 and Amar Singh vs. Kehar Singh AIR 1995 H.P. 82. The existence of the Kuhal has not been denied by the parties. The respondents No.1 to 3 are claiming passage of one metre wide along side the Kuhal for the last more than 50 years and they have acquired the right of easement by way of prescription. According to respondents No.1 to 3 they are using the passage along side the Kuhal for ingress and egress to their houses and agriculture land situate on Khasra Nos. 1823/1728 and 1824/1728, Muhal Upperli Barol, Mauza Khaniyara. The Kuhal is situate on khasra Nos. 1733, 1737 and 247. It is also their case that passage upto one metre width is not recorded in Wajib-Ul-Arj. 12. This stand of respondents No.1 to 3 gets support from the written statement of respondent No.5. The appellant in the written statement has denied any passage as claimed by respondents No.1 to 3 but in the written statement it is not the stand of the appellant that Khasra Nos. 1733, 1737 and 247 are owned by the appellant. On the contrary, the respondent No.6 in the written statement has stated that there is a 7 path along side the Kuhal which is in existence from ancient time and is in general use of all the inhabitants of Barol and others. It has been specifically pleaded that the land comprised in Khasra Nos. 1733, 1737 and 247 is owned by respondent No.6. 13. PW-1 Om Parkash has stated that there is a passage along side the Kuhal which is in existence for the last 100 years. There is no other passage. The passage of one metre wide excluding the width of the Kuhal is used for ingress and egress to the houses and the lands. The other lands and abadis are also adjacent to the path. He was cross- examined at length on behalf of the appellant but nothing favourable to appellant could be extracted in the cross-examination of PW-1. 14. PW-2 Angat Ram has stated that the disputed ‘maind’ runs along the Kuhal which is used as a path since centuries. There is no other path. PW-3 Arjun has stated that he has seen the disputed path from the time of his ancestors. This path is meant for the houses of the plaintiffs as well as to the house of the witness. There is no other path. 15. DW-1 Swarn Singh has stated that Kuhal irrigates the lands in Nichli Barol and not the Upperli Barol. There is no passage adjacent to Kuhal but the people used the edges of the Kuhal for irrigating their fields and repairing the Kuhal. Before settlement the width of the Kuhal was one Karam and after settlement its width is 57 ½ inch. The width of the Kuhal shown three metres is wrong. The ‘maind’ of Kuhal is about 1 ½ feet . He has shown his ignorance that to the house of Om Parkash there is no other path except over the ‘maind’ of Kuhal. He had not impleaded villagers and Panchayat in the suit filed earlier. 8 16. The respondent No.5 in the written statement has stated that path less than one metre in width is not shown in Aks Shajra as per Wajub-Ul-Arj. The respondent No.6 in the written statement has stated that residents of Barol are using the path and the Kuhal from the beginning. The respondent No.6 has admitted in the written statement that there is a path along with the Kuhal. The Khasra Nos. 1733, 1737 and 247 are owned by respondent No.6. 17. In Rup Chand (supra) the Court has held that use of edges of each others’ fields for going to their respective fields by agriculturists is a customary right of easement. In the present case, the suit has been filed on the basis of easement of prescription by respondents No.1 to 3 and, therefore, Rup Chand (supra) is of no help to the appellant. In Amar Singh (supra) the question was raised that according to law and custom of illaqua, the flow of water which serves the gharats cannot be impeded or curtailed. The plaintiffs’ in that suit took plea that their right to take water to their gharats is indefeasible and absolute. The issue No. 2-A was framed on custom pleaded by the plaintiffs in that case. The suit out of which the present appeal has arisen was filed on the basis of prescriptive right, therefore, Amar Singh (supra) is not applicable in the facts and circumstances of the present case. 18. The learned trial Court has considered the documentary and oral evidence in paragraphs 8 and 9 of the judgment. The learned Additional District Judge has affirmed the judgment of the trial Court. The view taken by the two Courts below emerges from the evidence on record. It has not been projected that inadmissible evidence has been relied and material evidence has been ignored by the two Courts below 9 while decreeing the suit after holding that respondents No.1 to 3 have acquired easementary right over the passage in dispute. The re- appreciation of the evidence in the second appeal is not permissible. There is no merit in the appeal. The substantial question of law, noticed above, is decided against the appellant. 19. In view of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), Judge. May 27, 2011 (GR)