HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case S.A. No. 327 of 2001 Bipin Kumar Vs. Dinesh Kumar Agarwal Approved for reporting. Date of Decision:- 28.02.2008 Initial of Judge: …………………. ’’’’’’’’’’’’’’’’’’’’’’’ ……………………………. HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 327 OF 2001 (Old No. 1144 of 1993) Bipin Kumar, S/o late Shri Ram Prakash, Garhwal Sweet House, Gokhle Marg, Kotdwara, District – Pauri Garhwal. ….Plaintiff/Appellant. Versus Dinesh Kumar Agrwal, Accountant, Punjab National Bank, R/o Gokhle Marg, Kotdwara, District – Pauri Garhwal. ……..Defendant/Respondent. 28.2.2008 Hon’ble Rajesh Tandon, J. Heard Sri Lok Pal Singh, counsel for the appellant and Sri Sudhir Kumar, counsel for the appellant and Sri Sudhir Kumar, counsel for the respondent. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 12.7.1993 passed by the District Judge, Pauri Garhwal in Civil Appeal No. 26 of 1992 Sri Dinesh Kumar Agarwal Vs. Sri Bipin Kumar arising out of the judgment and decree dated 25.7.1992 passed by the Munsif Kotdwara (Garhwal) in Civil Suit No. 26 of 1991 Bipin Kumar Vs. Dinesh Kumar Agrawal. 3. Present Second Appeal has been admitted on the following substantial questions of law; “1. Whether the defendant had never claimed casementary right over the land in dispute and did the courts below completely misread the evidence on record.” 2. Whether the courts below erred in law in shifting burden of proof relating to the easementary right on the plaintiff / appellant?’’ 4. Briefly stated, a suit was filed by the plaintiff / appellant being Civil Suit No. 26 of 1991 Bipin Kumar Vs. Dinesh Kumar praying on the following effect: “7& ;g fd nkok vUnj fe;kn o dkfcys lek;r vnkyr gktk ds gSa vr% oknh izkFkZuk djrk gS %& ¼v½ ;g fd izfroknh dks LFkkbZ fu’ks/kkKk }kjk eeuwu Qjek;k tkosa fd og oknh ds nqdku ds cjkenksa esa dksbZ rksM QksM uk djs vkSj oknh ds dCts okys fgLls cjkens esa dCts esa enky[kr djus ls Lo;a dks og vius ,stsUVksa }kjk ckt jgs vkSj oknh dh HkV~Vh o pcwrjk rksMdj oknh ds dCts dh rjQ vius cjkens esa viuk njoktk dk;e uk djsA ¼c½ ;g fd okn dk [kpZ izfroknh ls fnyk;s tk;A ¼l½ vU; nknjlh tks eqQhn oknh dks izfroknh ls fnyk;s tk;sA” 5. According to the plaint averments, the plaintiff is the tenant of a shop namely Garhwal Sweet House situate at Gokhle Marg. In the eastern of the shop, there is a Gallery and Malina Market, in the western side of the shop, there is Gokhle Marg, in the northern side of the shop, there is a shop of the defendant and in the northern side of the shop, there is a house of one Jai Kishan Dhamsana and Gokhle Marg. In the aforesaid shop, the plaintiff is tenant for last 25 years of Mr. Janki Prasad Dhamshana. Prior to the plaintiff, the shop was under the tenancy of his father and after the death of his father, the plaintiff is running the said shop. In the western side of the shop of the plaintiff, there is a door and after the door there is a Varanda of the shop. In the Varandath of the shop, the plaintiff has made a Chabutar and Oven, where sweets are made. The plaintiff has submitted that the defendant along with his sons and some anti social elements is threatening the plaintiff and trying to demolish the Oven and the Chabutara of the plaintiff and want to possess the Varandah of the plaintiff illegally. Thus, the plaintiff filed the aforesaid suit. 6. The defendant has contested the plaint averments by filing a written statement. In paragraph 2 of the written statement, it has been admitted that the plaintiff is running a shop which was under the tenancy of his father, but it has been denied that there is any permanent Oven or Chabutara in the open area of the shop in the western side. It has further been stated that the door at the western side is available from the very beginning. Further in the additional pleas, it has been stated as under: ^^10& ;g fd oknh dk ;g dkfu ljklj xyr gS fd oknh us vius dCts okyh nqdku ds if”pe dh vksj iDdk pcqrjk o dksb LFkkbZ HkV~Vh cukbZ gqbZ gSA vly rF; ;g gS fd oknh ds dCts okyh nqdku ds if”pe ds vksj dh fookfnr txg xks[kys ekxZ ls feyrh gqbZ txg gS tks fd lMd ds yscj ij gS rFkk vkus tkus dk jkLrk gS A izfroknh }kjk viuh feyfd;r okyk Hkou lu~ 1982 esa Jh ds0Mh0 /kelkuk ls [kjhn fd;k x;k FkkA oknh ds dCts okys Hkou o izfroknh dh feyfd;r okys Hkou ds iwoZ Lokeh vkil esa lxs HkkbZ FksA Hkou [kjhn fd;s tkrs oDr izfroknh ds Hkou esa fookfnr [kkyh txg esa vFkkZr~ izfroknh ds Hkou dh nf{k.k dh vksj [kqyus okyk ,d cMk njoktk Fkk tks fd lu~ 1952 esa Hkou fuekZ.k djrs le; iqjkus Hkou Lokeh }kjk cuk;k x;k FkkA ftlesa izfroknh ds iwoZ Hkou Lokeh Jh ds0Mh0 /kelkuk dk lu~ 1952 ls fookfnr txg ls gksdj lMd xks[kys ekxZ ij vkus tkus dk izfroknh dk jkLrk gS] rFkk mlds fy, ogh iqjkuk njoktk gSA oknh dk ;g dguk ljklj xyr gS fd izfroknh nf{k.k dh vksj ;kfu fookfnr txg dh vksj tcju njoktk dk;e djuk pkgrk gS o oknh dh HkV~Vh vkfn rksMuk QksMuk pkgrk gS vly ckr ;g gS fd izfroknh us oknh ls bl izdkj dk dksbZ >xMk fQlkn vFkok rksM QksM djus dk dksbZ bjknk dHkh tkfgj ugha fd;k gS] uk gh fookfnr txg esa oknh dh dksbZ HkV~Vh ogka ij j[k ysrk gS] ftls izfroknh dks ogka vkus tkus esa ck/kk mRiUu gksrh gSA ftlds fy, izfroknh vyx ls dkuwuh dk;Zokgh djsxkA izfroknh ds Hou dk nf{k.kh njoktk fiNys 39 o’kksZ ls fookfnr txg ij [kqyrk gS rFkk fookfnr txg fiNys 39 o’kksZ ls vf/kd le; ls izfroknh ds Hkou ds nf{k.kh njokts ls lMd xks[kys ekxZ ij vkus tkus ds fy, bLrseky gksrh vkbZ gS izfroknh dks vius Hkou ds nf{k.kh njokts ls fookfnr txg ls gksdj vkus tkus dk iw.kZ vf/kdkj gSA oknh }kjk izfroknh ds bl vf/kdkj ij dkuwuu dksbZ cafn”k ugha yxkbZ tk ldrh gS A 11& ;g fd oknh ekuuh; U;k;ky; ds le{k LoPN gkFkksa ls ugha vk;k gS rFkk oknh }kjk vius nkos vLFkkbZ fu’ks/kkKk dh nj[okLr] “kiFk i= vkfn esa fcYdqy xyr rgjhj fd;k x;k gS fd izfroknh oknh ds dCts esa enky[kr djds nf{k.k dh vksj mlds fookfnr dfFkr cjkens dh vksj vFkkZr~ [kkyh txg dh vksj viuk njoktk dk;e djuk pkgrk gS tSls fd iwoZ iSjk 10 esa Li’V fd;k x;k gS A fd izfroknh dk mDr njoktk Hkou [kjhn fd;s tkus ls dkQh igys ls izfroknh ds Hkou fuekZ.k ds le; ls ekStwn gS izfroknh dh feyfd;r okyk Hkou lu~ 1952 dk fufeZr gS rFkk rHkh ls fookfnr txg esa [kqyus okyk njoktk ekStwn gS rFkk rHkh ls iwoZ Hkou Lokeh o mlds ckn izfroknh dk fookfnr cjkens ls gksdj xks[kys ekxZ ij vkus tkus dk jkLrk jgk gSA ** 7. On the pleadings of the parties, the trial Court has framed the following issues: ^^1& D;k oknh fookfnr LFky dk fdjk;snkj gS vkSj fookfnr LFky esa HkV~Vh o pcwrjk cukdj feBkbZ vkfn dk dkjksckj djus dk vf/kdkjh gS \ 2& D;k fookfnr LFky esa ls gksdj vkus tkus dk lq[kkf/kdkj izfroknh dks izkIr gS\ 3& D;k izfroknh /kkjk 35 lh0ih0lh0 ds v/khu oknh ls fo”ks’k gtkZ ikus dk vf/kdkjh gS \ 4& D;k oknh vuqrks’k ikus dk vf/kdkjh gS \ 8. On behalf of the plaintiff, Vipin Kumar and one Janki Prasad have been examined as P.W.1 and P.W.2 respectively. Towards the documentary evidence, the plaintiff has filed per list 16 Ga one document and per List 28 Ga one document. 9. On behalf of the defendant, he himself has been examined as D.W.1 Towards the documentary evidence, the defendant has filed per List 18 Ga one document where Exhibit –1 has been endorsed. 10. While deciding the issue no. 1 as to whether the plaintiff is the tenant of the place in question and is entitled to do the business of selling sweet by constructing a Chabutara and Oven on the place in dispute, the trial Court has recorded a finding that it is admittedly proved that the plaintiff is the tenant of the place in question and is entitled to do the business of selling sweets. The trial Court has taken into consideration the statement of P.W.1 Vipin Kumar, P.W.2 Janki Prasad, D.W.1 Dinesh Kumar and the map issued by the Nagar Palika Paper No. 28 Ga. The map shows that the place in question has been left for the convenience of Janki Prasad. P.W.2 has stated in his cross- examination that he is possessing the Lease of the said place and at the time of partition, there was an agreement for keeping the door closed. Thus, the issue no. 1 has been decided in favour of the plaintiff and against the defendant. 11. While deciding the issue no. 2 as to whether the defendant has easementary right for the access from the place in question, the trial Court has recorded a finding that the defendant should have filed the suit himself for the easementary rights, which has not been done by him, therefore, he cannot be given the easementary rights in the present suit. This issue has been decided in favour of the plaintiff and against the defendant. 12. While deciding the issue no. 3 as to whether the defendant is entitled to get special damages from the plaintiff under Section 35 of the Code of Civil Procedure, the trial court has recorded a finding that since the defendant is not being given any relief and the suit is being decided against him, there is no occasion to give him special damages under Section 35 (A) of the Civil Procedure Code. Thus, this issue has also been decided against the defendant and in favour of the plaintiff. 13. While deciding the issue no. 4 regard to the relief, the trial Court has restrained the defendant from the access of the Varandah of the plaintiff as there is an Oven and Chabutara of the plaintiff. 14. Aggrieved by the said order, the defendant has preferred an appeal being Civil Appeal No. 26 of 1992 Sri Dinesh Kumar Agarwal Vs. Sri Bipin Kumar. The appellate Court has allowed the appeal of the defendant and set aside the judgment had decree passed by the trial Court. The relevant portion of the finding recorded by the appellate Court is quoted below: “5. I have heard learned counsel of the parties. Learned counsel of the defendant appellant contended that Bipin Kumar is tenant in the disputed property. This fact is undisputed. It is alleged by the plaintiff that there was a varanda towards west of shop. Learned counsel of the defendant – appellant contended that the Commissioner’s report 9-C shows that there were three doors in the room owned by Bipin Kumar and Dinesh Kumar. One door was opening towards Gokhle Marg and the other door was opening towards in the opposite direction and the third door of both the room was opening towards right hand. The disputed veranda was on the road and the doors ‘A’ & ‘F’ of defendant and ‘B’ and ‘C’ of plaintiff were opening on the road. That shows that disputed place was not veranda rather the place in front of door ‘F’ & ‘B’ was actually part of the road. There was only projection (Chhajja) above the disputed land and the land beneath Chhajja cannot be held as land belonging to any of the plaintiff or defendant, rather it was the part of road and, therefore, the plaintiff Bipin Kumar could not have acquired any right for keeping his Bhatti or for constructing Chabutra or wall. The disputed land was not part of tenancy and, therefore, the plaintiff as tenant could not have acquired any right for keeping his Bhatti or for constructing Chabutra or wall. The disputed land was not part of tenancy and, therefore, the plaintiff as tenant could not have acquired any tenancy right over said land. Further plaintiff could not have acquired any easemmentory right or prescriptive right over the disputed land, firstly because plaintiff was not owner. The acquir prescriptive or easementry right. The plaintiff must be the owner of the property because only an owner can acquire easementary right or prescriptive right over the land or others and their right could not be acquired by a tenant. The Commissioner’s report shows that the room of the defendant was opening towards the disputed land. Defendant is owner of the house and he had full right to open his door towards the disputed land. The plaintiff cannot be held to be in possession was wrongly stated by plaintiff that disputed land was part of his tenancy. If some Bhatti was keep or even some Chabutara was made. The said construction were liable to be removed by Nagar Palika also. The plaintiff could not acquire any right for keeping Bhatti or Chabutra against Nagar Palika and the plaintiff also cannot stop the defendant to open the door which was opening towards the disputed land. The plaintiff cannot stop the defendant to enjoy his rights which were vested in him and, therefore, the plaintiff cannot stop the defendant to enjoy his rights which were vested in him and, therefore, the plaintiff could not get the relief of injunction against the defendant. 6. P.W.1 admitted that the opened his sweet shop in 1981. The suit has been filed in 1991 and in 10 years no right even if any could be acquired by plaintiff on the disputed land. Even if the disputed land was being used by plaintiff or his father, no right could be acquired because that land belongs to Nagar Palika, Kotdwara, as being part and partial of the main road, from the evidence of P.W.1 it is clear that the disputed land was temporarily used but the temporary user could not give any right and title to the father of plaintiff or to the plaintiff himself. Plaintiff’s evidence is not reliable because from the Commissioner’s report it is clear that the door of the room of defendant was very old and this fact is not denied by plaintiff and, therefore, plaintiff’s allegation that defendant wanted to forcibly open the door is baseless. The plaintiff himself was trying to raise obstruction in front of the door of defendant without any right or authority and, therefore, plaintiff cannot file suit to enjoy his own wrong. Even plaintiff admitted that disputed door of the defendant was very old and its shutter was opening towards out side. It was stated by P.W.1 and p.w.2 that there was a lock on the door of defendant. Even if it was correct, it cannot be held that defendant surrendered his right to Nagar Palika and not to the plaintiff or his father P.W.2 tried to state that he had got lease of the disputed land from Nagar Palika but he could not submit the said lease deed and it is clear that he was stating false fact.” 15. Aggrieved by the said order, present second appeal has been filed. 16. Counsel for the appellant has reffered the judgment Soni Dinesh Bhai Manilal and others Vs. Jagjivan Mulchand Chokshi [2008 (70) ALR 330] (SC), where the Apex Court has observed as under: “19. The High Court in its impugned judgment had taken the said facts into consideration. Order XXVI, Rule 11 of the Code of Civil Procedure provides for appointment of a commissioner to examine or adjust accounts, if necessary. He is competent to decide all questions raised before him, taking into consideration all aspects of the matter. He is to assist the Court. A Commissioner’s report can be set aside only upon assignment of proper and sufficient reasons. In the eent any defect in the conduct of enquiry by him is found out, the Court may issue any further directions. A further enquiry can also be ordered. A report of the Commissioner is a part of record. It is to be treated as evidence in the suit.” 17. In view of the aforesaid, the matter is remanded back to the lower appellate Court for deciding the same afresh by conducting a survey or appointing a survey Commissioner in order to get the clear position of the place in question. 18. Subject to aforesaid, Second Appeal is allowed. No order as costs. (Rajesh Tandon, J.) 28.2.2008 Rathour