R.S.A. No. 1807 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1807 of 2008 (O&M) Date of Decision : 21.7.2.2009 Chand Singh .......... Appellant Versus Ranjit Singh @ Jagroop Singh & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Dilraj Brar, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 5229-C of 2009 For the reasons stated in the application, C.M. is allowed. Order dated 31.3.2009 is recalled and the appeal is restored to its original number. R.S.A. No. 1807 of 2008 This regular second appeal is directed against the judgment and decree dated 7.12.2007, passed by the learned Courts below decreeing the suit filed by the plaintiff / respondents seeking permanent injunction against the defendant / appellant from interfering in the peaceful use of path. The plaintiffs brought a suit on the pleading, that the plaintiffs were owners in possession of Khasra Nos. 263 to 270 along with other co- owners. The plaintiffs claimed that there was a passage on the northern side of Khasra No. 263, 266 and 267, which leads to Khasra Nos. 262, 261, 260 and 259 and then leads to Mallan-Road, which further leads to village R.S.A. No. 1807 of 2008 2 Rameana. The plaintiffs claimed that there was a kassi on Northern side of the passage and a Khal on Southern side of this passage. The level of the Kassi is higher than this passage, whereas level of khal and the passage is same. The khal is 2 ½ feet higher in level to the adjoining land comprised in khasra No. 262, 261, 260 and 259. The plaintiffs further claimed to be owners in possession of land comprised in Khasra No. 162, 163, 164 and 165 situated beyond Mallan-Road, Village Rameana, as co-sharer. Khasra No. 162 and 163 were belonging to Gurudwara Sahib. The plaintiffs claimed that they were irrigating their land through the abovesaid khal shown in blue colour in the site plan attached with the plaint. They further were irrigating their land comprised in khasra No. 164 & 165 though this khal. This Khal and Kassi were being used by the plaintiffs along with other villagers to reach and cultivate land comprised in Khasra No. 164 and 165. They claimed that they were using it to reach Mallan road from Khasra No. 263 and 264. The plaintiffs claimed their right of way since time immemorial from this passage to approach their land situated on both sides of Mallan -Road. The case set up by the plaintiffs was that due to strained relations and in order to take revenge the defendant claimed his right over the land comprised in the disputed passage and Khal. It was claimed that defendant has no right over the disputed passage and khal and the plaintiffs and other villagers are using the same. The defendant applied for demarcation of Khasra Nos. 259, 269, 261 and 262, which was conducted on 7.11.2002, in which it was reported that passage and Khal were in existence on Northern side of Khasra Nos. 269, 269, 261 and 262. The defendant did not file any objection to the said report, which was signed by R.S.A. No. 1807 of 2008 3 him along with others. The case set up by the plaintiff / respondents was that as the defendant wanted to demolish the khal and passage, they sought injunction. The appellant / defendant appeared and filed written statement contesting the suit by taking preliminary objection that Sham Kaur widow and Surjit Kaur daughter of Koer Singh as well as Bakhtawar Singh, Sukhmander Singh and Gurpiar Singh etc. were recorded as owners in the revenue record and were necessary party to this suit. On merits, it was pleaded that the plaintiff / respondents were neither owners nor in possession of the land, as alleged. It was claimed that there existed a passage on northern side of Khasra Nos. 270, 267, 266 and 263, which ends at northern corner of khasra No. 263. It was claimed that in between the boundaries of Khasra No. 262, 261 and 260 and of Kassi ( Mallan minor ) there existed no passage. It was also claimed, that neither any watercourse existed there nor any warabandi had been fixed. It was claimed, that the Tubewell Corporation had constructed a khal, but it was not put to use due to possession of the defendant, which was dismantled almost in its entire length. It was claimed that no passage was ever reserved or earmarked through the land owned by the defendant comprised in Khasra No. 262, 261 and 260. Kassi was located at a higher level than land of the defendant. Other averments were also denied. It was claimed that a separate passage is provided to the land, which abuts Mallan-Road. As already observed that the Khal was dismantled and not used by the plaintiff. It was further claimed, that there R.S.A. No. 1807 of 2008 4 was no question of use of the alleged passage as there existed a metalled road. It was claimed that during the demarcation entire land was found to be part of Khasra No. 262 to 269. No land was found to be reserved for passage or kassi. It was claimed that the report was not properly prepared under the influence of the plaintiff / respondent and, therefore, the defendant was not bound by the false and incorrect reference to any passage, made in the report. Thus, it was claimed that plaintiff was not entitled to seek injunction. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues :- 1. Whether the plaintiff is entitled for permanent injunction, as prayed for ?OPP 2. Whether the suit is not maintainable, as alleged ? OPP 3. Relief.” Issue No.1 was decided in favour of the plaintiff / respondent by recording the following findings :- “ 8. I have gone through the record. PW2 Ranjit Singh plaintiff no.1 made statement on oath to prove averments of the plaint. His this version was orally corroborated by PW1 Gurpiar Singh and PW3 Ranjit Singh son of Pahara Singh, who have made statements regarding existence of the disputed passage and its user by the plaintiffs and other villager, Ex.P6 is the site plan wherein the disputed passage has been shown in red colour. Plaintiffs are owners in possession of the land comprising in khasra No. 263 to 270 as well as R.S.A. No. 1807 of 2008 5 some other land as shown in green colour in site plan Ex.P6. They are also owners in possession of land comprising in khasra No. 164 and 165, which also shown in green colour in the site plan. Ex.P1 is copy of jamabandi for the year 1997-98 of this land of the plaintiffs, wherein they are recorded as owners in possession thereof, as co-sharers. This land of the plaintiffs consists of two pieces. One piece is bearing khasra nos. 164 and 165. The second piece is bearing in khasra nos. 263 to 270 and some other khasra numbers. A water channel is going through this second piece of land of the plaintiffs towards their above said first piece of land. Towards northern side of this land of the plaintiff there is a canal minor. This above said water channel is situate towards southern side of the canal minor. There is some vacant land in between the canal minor and the water channel, which runs parallel. This land, which is two karam wide is shown in red colour in site plan Ex.P6. It abuts land of the defendant comprising in khasra No. 259 to 261. According to the plaintiffs they are using this land as passage which connect their above said two pieces of land. However according to the defendant no such passage is in existence and this area is owned and possessed by him. Defendant has even denied the existence of the water channel (khal). According to the defendant this khal is dismantled and not used since its construction. But according to the plaintiffs, they as well as the defendant are using this khal in order to irrigate their lands. 9. In order to prove existence of this khal the R.S.A. No. 1807 of 2008 6 plaintiffs brought on record copy of warabandi Ex.P4 showing that there is turn of water, recorded in the name of Dharam Singh father of the defendant for his land comprising in khasra No. 259, 260. Ex. P5 is the site plan of this khal bearing Burji no. 77770-R. This khal is shown in green colour in this site plan. So, existence of this khal is duly proved from these documents Ex.P4 and Ex.P5 of the Canal Decpartment. Further plaintiff no.1 Ranjit Singh filed an application for correction of khasra girdawari entries. Vide order dated 12.8.2004 Assistant Collector 2nd Grade, Jaitu corrected khasra girdawari entries of land comprised in khasra No. 260-261 and 262 showing that there is two karams wide passage. Total area of this disputed passage comprised in these khasra numbers is 1 kanal 19 marlas. Although this order for correction of khasra girdawari entries was passed during the pendency of this suit, but it shows the existence of disputed passage at the spot. Photographs Ex.P7 to Ex.P20 of this disputed passage were also brought on record by the plaintiffs. The same were proved by PW4 Lakhwinder Singh photographer. He also proved negatives Ex.P21 to Ex.P34 and cash memo Ex. P35. The disputed passage has been shown in these photographs. 10. Ex.P36 is copy of jamabandi for the year 2002-03 of land comprising in khasra Nos. 174, 175 and 176 of defendant Ranjit Singh. Ex.P37 is copy of application filed by the defendant with Tehsildar, Jaitu for demarcation of his land comprising in Khasra No. 259, 260, 261 R.S.A. No. 1807 of 2008 7 and 262. Accordingly, demarcation was conducted by Halqa Kanungo, Jaitu and copy of his report dated 7.11.2002 Ex.P21 is also shown on the file. Perusal of this report also shows that there exists two karams wide passage in between the kassi and the khal towards northern side of khasra no. 259, 260, 261 and 262. However area of this khal and the passage is owned by the defendant. 11. Further in this case vide order dated 17.1.2003 a Local Commissioner was appointed. Accordingly, local investigation was conducted by Mr. Jaskirat Singh, Advocate and his report dated 5.6.2003 is also on the file. As per this report there exists a passage towards northern side of khasra no. 259, 262, which extends to western side and joins the road going from village Mallan to village Rameana. On eastern side it extends to the northe of khasra no. 263, 260 and 267. Further there is also a pacca khal on southern side of this passage, which is in very bad condition and is not being used. It was also reported that Kassi exists on northern side of this passage and its level is higher than this passage. That level of khal is lower than the passage, which is 9' – 10” wide. 12. DW1 Chand Singh defendant vide his affidavit Ex. /DW1/A made statement denying allegations of the plaintiff. He brought on record copy of Aks, Shajra of village Rameana Ex.D1. There in the disputed passage as well as the khal have not been shown existing towards northern side of land of the defendant. Only kassi is recorded in this revenue document. Ex. D2 is copy of jamabandi for the year 1992-93 of land of the R.S.A. No. 1807 of 2008 8 defendant comprising in khasra no. 260, 261 and 262, which is owned and possessed by him. No khal or passage is recorded to be existing in this land. Similar is the picture in copy of khasra girdawari for the crops of Sauni 2001 to Hari 2002 Ex.D3. Further Ex.D4 is the copy of jamabandi for the year 2003-04 is also of land comprised in khasra no. 250 to 262 owned and possessed by the defendant. 13. Perusal of this entire above discussed evidence brought on record by the parties shows that disputed passage is in existence in between the kassi and the khal. This khal as shown in blue colour and the disputed passage as shown in red colour in the site plan Ex.P6 exists on northern side also comprised in khasra No. 259 to 262 owned by the defendant. Although, this disputed passage as well as the khal have not been shown in the revenue record, but the above discussed overwhelming evidence on the record duly prove existence thereof. Moreover, revenue record has already been corrected vide order dated 12.8.2004 of assistant Collector 2nd Grade, Jaitu regarding existence of this disputed passage. Now it is the case of the plaintiffs they are using this disputed passage since time immemorial and it connects there above said two pieces of land. That it is also being used by the other villages. Statement of PW2 Ranjit Singh- plaintiff no.1 in this regard find corroboration from the statement of PW1 Gurpiar Singh and PW3 Ranjit Singh son of Pahara Singh. Learned counsel for the plaintiffs referred to law laid down in case, 'Usman Versus Rahmat and R.S.A. No. 1807 of 2008 9 others' AIR 1963 Lahore 797 and argued that the plaintiffs have got right to this public pathway'. On the other hand learned counsel for the defendant referred to law laid down in cases titled as ' Faridabad Complex Administration Versus Yadu etc.' 1997(1)PLJ 135; 'Jiya Lal Versus Muni Lal' 2000(3) RCR (Civil) 410; 'Mahadeo Savlaram Shelke Versus The Puna Municipal Corporation' 1995(2) (SC) RRR 66; 'Bhagwan Devi Versus Ranji Dass” SLJ 1992 (1) 212; and 'Gian Chand Versus Kultar Singh and another' 1984 PLJ 492 and argued that no injunction can be granted against the defendant, who is true owner of the disputed land. 14. I have carefully gone through the above said authorities referred to by learned counsel for the parties. Rulings referred to by learned counsel for the plaintiff are not applicable to the facts of the present case. Because the dispute between the parties is not with respect to any encroachment over the land owned by the defendant. Rather the plaintiffs are claiming their right to passage through land of the defendant, which they are using since time immemorial. In Usman's case (supra), it was held by the hon'ble Lahore High Court that right of easement attaches to land and is exerciseable over another's land. That exercise of right of passage does not require person to be owner of some land. That user of way for fixed period is not necessary. In view of this ratio of law, I am of the view that the plaintiffs cannot be denied from using the disputed passage existing in land of the defendant. It is evident that R.S.A. No. 1807 of 2008 10 the disputed passage exists between the kassi and the khal. This khal is also existing in land of the defendant and it was admittedly constructed by the Punjab State Tubewell Corporation. As per the revenue record this khal as well as the disputed passage are part of land of the defendant. But it does not give a right to the defendant to obstruct the plaintiffs and others from using the disputed passage and from taking its possession, illegally and forcibly except in due course of law.” In appeal, the findings recorded by the learned trial Court have been affirmed. The finding of fact, that there existed a passage, which was being used by the plaintiffs and other residents of the village is based on appreciation of evidence. The learned Courts also took note of the fact that the Local Commissioner appointed, vide his report dated 5.6.2003 also proved the existence of passage from northern side of khasra No. 259 to 252, as claimed by the plaintiff / respondents. The learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law :- 1. Whether the learned Courts below committed an error in decreeing the suit without framing an issue with regard to the right of easement of the plaintiff / respondents to use the passage ? 2. Whether the judgments and decree passed by the learned Courts below is outcome of misreading of documentary and oral evidence on record, thus, R.S.A. No. 1807 of 2008 11 perverse ? In support of the substantial questions of law, the learned counsel for the appellant contends, that the plaintiffs had not set up the plea of easement in the plaint, nor any evidence was led. No issue was also framed and in absence of issue, it was not open to the Court to have decreed the suit on the basis of right of easement. In support of this contention the learned counsel for the appellant placed reliance on the judgment of the Hon'ble Allahabad High Court in the case of Smt. Kaniz Fatima (deceased) and another vs. Shah Naim Asraf AIR 1983 Allahabad 450, wherein the Hon'ble Allahabad High Court has been pleased to lay down, that if no issue is framed on a question, recording a finding thereon, and basing the decree on such finding is not impermissible. This contention of the learned counsel for the appellant cannot be accepted. The suit filed by the plaintiffs was for injunction only, and the relief granted is, that the defendant / appellant should not interfere with the use of the passage, except with due process of law. Once on evidence, it was proved, that passage was in existence, and further that the parties were aware of the case of each other, and the evidence was led, it cannot be said that the judgment and decree is to be set aside for want of issue. The judgment relied upon by the learned counsel for the appellant, therefore, has no application to the facts of the present case. The learned counsel for the appellant thereafter contended that in the present case the plaintiffs failed to prove the easement right, therefore, the decree is liable to be reversed. In support of this contention he R.S.A. No. 1807 of 2008 12 has placed reliance on the judgment of this Court in the case of Hari Chand L. Sharna Mal Vs. Gordhan Das Faqir Chand Vaish and others AIR 1957 Punjab 238, wherein this Court was pleased to lay down that to prove the right of easement, and to declare him the dominant owner, it is necessary to prove that the plaintiff was in peaceful, open and uninterrupted enjoyment of that right, for a period of twenty years lasting within two years of the suit. The learned counsel for the appellant has also placed reliance on the judgment of the Hon'ble Orissa High Court in the case of Lambodar Panda and others v. Ramesh Chandra Panda and others AIR 1958 Orissa 248 to contend that a person claiming a right of way, should prove that the user was as of right. The learned counsel for the appellant thereafter placed reliance on the judgment of Madhya Bharat High Court in the case of Phoolchand Narayandas and another Vs. Murarilal Nathulal AIR (38) 1951 Madhya Bharat 89, which again lays down the principle of easement. Finally the learned counsel for the appellant placed reliance on the judgment of this Court in the case of Parma Nand Vs. Sucha Singh 1997(1) PLJ 474 to contend that the learned Courts below have wrongly placed reliance on Ex.P6 i.e. correction of revenue record, though the said correction was made during pendency of the suit. Therefore, it could not be taken into consideration. The contention of the learned counsel for the appellant, therefore, was that the judgment and decree passed by the learned Courts below is outcome of misreading of evidence and also by taking into consideration inadmissible evidence. This contention of the learned counsel R.S.A. No. 1807 of 2008 13 for the appellant cannot be accepted. The suit filed by the plaintiff was not based on revenue record but on positive pleading, that the plaintiff and other residents had right of passage, which was being used from the time immemorial and the defendant / appellant had no right to interfere in its use. Ex.P-6 was merely taken to be one of the ground, and not sole basis on account of which it could be said, that the judgment and decree is outcome of misreading of evidence or is outcome of taking into consideration the inadmissible evidence. The report submitted by the Local Commissioner was positive, that the passage was being used by the plaintiff and other villagers. The substantial questions of law raised are answered against the appellants. No merit. Dismissed. 21.7.2009 ( VINOD K. SHARMA ) 'sp' JUDGE