RSA No. 32 of 1986 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 32 of 1986 Date of Decision: 18 -08-2009 Parmodh Singh (dead) through LRs. ......Appellant Versus Daryodhan Singh .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri R.L. Sharma, Advocate, for the appellant. Shri K.S. Dadwal, Advocate, for the respondent. HEMANT GUPTA, J. (Oral). The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby his suit for permanent injunction restraining the defendant from causing any obstruction like tethering of cattle or placing of Khurlis or installing of Kundas in the common passage of the parties marked ABCD shown red in the site plan, was dismissed. RSA No. 32 of 1986 (2) One Labh Singh was the owner of the joint property. Labh Singh had two sons Sukhnandan Singh, father of the plaintiff and Raghunandan Singh, father of the defendant. The plaintiff claimed exclusive ownership of the property marked DEFGBC shown yellow and averred that ABCD is a common passage. The defendant is owner in possession of the property marked as IJADE. It is averred that the parties have left a common passage ABCD for their going into and going away of the properties of the parties and there is no other passage for entering into the property of the plaintiff except through the site ABCD, which is a common passage of the parties. It was alleged that the defendant has started threatening to obstruct this passage over which he has no right. In the written statement, it was the stand of the defendant that the site ABCD is the exclusive ownership of the defendant and that the site ABCDEF as shown in the site plan of the defendant was given to him in the family arrangement arrived at between father of the plaintiff and father of the defendant about 21 years go. Site BCDEHG was given to the plaintiff in the said family arrangement. It was also pleaded that defendant constructed Khurlis in the site in suit more than 12 years ago and has been tethering his cattle there. The defendant has constructed his Baithak situated in the north of the site about 10 years RSA No. 32 of 1986 (3) ago. In replication, the plaintiff denied the stand of the defendant in the written statement and also denied family arrangement as propounded by the defendant. It was also pleaded that the defendant has sought permission of the plaintiff to tether cattle in the site in dispute in January,1981 due to the marriage of his daughter, but when he did not stop, the plaintiff gathered the respectables of the plaintiffs on 10.6.1981, where the defendant requested time upto 15.5.1982 because of the marriage of his other daughter. The defendant relied upon a writing executed on 10.6.1981 in the presence of the respectables and common relatives In support of the respective stands of the parties, the plaintiff appeared as his own witness as PW1, examined Shri Anirudh Singh, brother-in-law of the plaintiff as PW3 and PW2- Brijnandan Singh. On the other hand, the defendant appeared as his own witness as DW1 and examined DW2 Dharampal. The learned trial Court recorded a finding on the basis of the statement of the witnesses of the plaintiff that the entire site shown in the site plan Exhibit P.2, produced by the plaintiff and Exhibit D.1, produced by the defendant, came from their common ancestor Labh Singh. The property inherited from Labh Singh was partitioned between the parties. The plaintiff got ½ share on the eastern side, RSA No. 32 of 1986 (4) whereas the defendant got ½ share on the western side. The defendant raised construction on his 1/2 share about 22 years ago, whereas the plaintiff raised construction about 6 years ago after his retirement. However, the learned trial Court on the basis of statement of the plaintiff arrived at the conclusion that the area in possession of the plaintiff comes to 2460 square feet, whereas the area of the defendant comes to 2255 square feet as per the site plan Exhibit P.2. But if the area is calculated as per the site plan Exhibit D.1, the area in possession of the plaintiff comes to 2816 square feet and the area in possession of the defendant comes to 2802 square feet. The Court concluded that since the property was partitioned to the extent of ½ share each, therefore, the plaintiff cannot claim more share than that of defendant. Another fact, which weighed with the learned trial Court was the construction of bath room by the defendant on the northern site of Manger. After some vacant site, there is Baithak of the defendant. The learned trial Court found that the plaintiff has claimed site underneath Baithak as owned by him, whereas ownership and possession has been proved to be with the defendant. In view of the said fact, the Court proceeded to decide whether the site ABCD is a passage. The Court found that if the site is included into the share of the defendant, even then the area in his possession falls shorter than the area RSA No. 32 of 1986 (5) of the site, which is in possession of the plaintiff. Thus, by including the site underneath bath room and Baithak on the northern site of the property of the defendant, the learned trial Court arrived at a conclusion that though the site ABCD is no doubt a passage but is ownership and in possession of the defendant and is not the common passage of the parties. While adverting to the statement dated 10.6.1981, the same was found to be scribed by Brijnandan Singh PW2 and attested by PW3 Anirudh Singh. The trial Court has also taken into consideration the statement of the defendant, who appeared as DW1 to the effect that the plaintiff has opened gate in his common wall towards the said suit site. The Court found that since the plaintiff has claimed site underneath the bath room and the Baithak and the vacant space as his own, but in cross- examination admitted the possession of the defendant, therefore, the plaintiff has not come to the Court with clean hands. The Court came to the conclusion that since the plaintiff raised construction about six years ago and defendant about 22 years ago. The assertion of the plaintiff that the site is being used since the time immemorial as a passage is incorrect. Therefore, there is no easement by prescription. It also found that the main entrance of Pramodh Singh is in the northern side and, therefore, the plaintiff has not acquired any easement by necessity to use the site in RSA No. 32 of 1986 (6) dispute as a passage. In respect of the writing dated 10.6.1981, the stand of the defendant was that the plaintiff has got site from the defendant under duress with the pressure of the police as the plaintiff is a retired police official. PW3 is the husband of sister of plaintiff's wife and the scribe is uncle of Anirudh Singh PW3. Therefore, it was found that since the witnesses are closely related and interested in plaintiff, therefore, the execution of the writing by the defendant cannot be believed, as such document is not signed by any Sarpanch or Lambardar. Thus, the trial Court concluded that the site ABCD is not a common passage of the parties but is in exclusive possession of the defendant. Consequently, the suit was dismissed. The learned first appellate Court in an appeal by the plaintiff framed the following questions for consideration:- “1. Whether the site marked ABCD is the common passage of the parties? 2. Whether the admission of defendant Daryodhan Singh as contained in Ex. P.1 is binding and is conclusive evidence in this case so as to determine that the passage marked ABCD is the common passage of the parties? 3. Whether the constructions towards the northern side of this passage ABCD was the property of the plaintiff or not?” RSA No. 32 of 1986 (7) The learned first Appellate Court in respect of 3rd question, which was taken up for discussion earlier, returned a finding that the construction towards the north of the passage marked ABCD is in possession of the defendant and Baithak and bath room were constructed several years back. The said finding is not disputed by the learned counsel for the appellant in the present second appeal. I have heard learned counsel for the parties on the following substantial questions of law:- 1. Whether the finding of the learned first Appellate Court that the admission of the defendant in writing Exhibit P.1 dated 10.6.1981 is not binding upon him, is based upon surmises and conjectures? 2. Whether the plaintiff can be non suited for the reason that he has not come to the Court with clean hands, when such finding is based upon misreading of evidence? It was found that the admission of the defendant contained in Exhibit P.1 dated 10.6.1981 pertained to the site in dispute and in evidence the said fact is admitted by the witnesses of the defendant and that the admission of the defendant pertains to this very site. The first Appellate Court further found that if the plaintiff was in police, the defendant was also in Army. The document is attested by several persons including relatives of the parties. Therefore, the document RSA No. 32 of 1986 (8) Exhibit P.1, is proved to be executed between the parties. The question, which was examined thereafter by the learned first Appellate Court was whether the admission contained in Exhibit P.1 regarding the jointness of site marked ABCD is binding upon the plaintiff or not (sic defendant). The Court non-suited the plaintiff for the reason that the plaintiff has tried to lay claim on the northern site of the dispute and has tried to show his ownership and possession with regard to Baithak and bath room and that the construction was raised by the defendant many years back whereas the plaintiff raised construction only six years back. Therefore, the site ABCD belonged to defendant. The learned first Appellate Court proceeded to hold that the plaintiff has not pleaded document Exhibit P.1 which has been produced by the plaintiff for the first time in his evidence and that the site ABCD belongs to defendant. The Court considered that the site in possession of the defendant is 2802 square feet including the sites in dispute ABCD, whereas the site in possession of the plaintiff comes to 2816 square feet. Therefore, the area marked as ABCD, Baithak and the bath room fell to the share of the defendant. The first Appellate Court concluded that though document Exhibit P.1 is signed by the defendant but the same is not a conclusive admission with regard to the property being joint between the parties. Consequently, the appeal was dismissed. RSA No. 32 of 1986 (9) Learned counsel for the appellant vehemently argued that having returned a finding that the document Exhibit P.1 stands proved, the finding recorded that the same is not conclusive, is wholly erroneous. It is contended that the stand of the defendant was that of denial of the agreement. The defendant has not sought to explain that the admission contained therein is erroneous, therefore, the first Appellate Court has made out an absolutely new case for defendant without any pleading or evidence. It is wrongly recorded by the learned first Appellate Court that compromise Exhibit P.1 was produced in evidence. In fact, the said compromise was referred to in detail in replication. The learned trial Court has even recorded a finding that such writing is not proved to be executed. The plaintiff knew about the compromise and has led evidence in respect of such document. It is also argued that the the first Appellate Court has taken into consideration that the area in possession of the defendant is little less than what is in possession of the plaintiff. It is contended that in partition by metes and bound, it is not possible to have exact division in equal share. The property of the defendant is bound by road on two sides. Therefore, even somewhat area smaller in size in his possession compensates him with increase in value. It is also argued that though the construction was raised by the plaintiff about six years prior to his filing of the suit, whereas the RSA No. 32 of 1986 (10) defendant raised construction about 22 years back, but the passage ABCD even in the absence of construction was in common use. Therefore, the finding recorded by the Courts below is based upon surmises and conjectures and not sustainable. Still further the allegation that the appellant has claimed the land underneath the bath room or Baithak is not of much consequence as the claim of the plaintiff was over area ABCD as common passage of the parties. Therefore, the Courts below have made much of nothing while returning a finding that the plaintiff has not come to the Court with clean hands. Having heard learned counsel for the parties at some length, I am of the opinion that the conclusions drawn by the learned first Appellate Court are not correct in law. Firstly, the first Appellate Court erred in law in holding that the agreement Exhibit P.1 dated 10.6.1981 was produced in evidence for the first time. In fact, the same was relied upon by the plaintiff in the replication and the parties have led evidence to prove the said agreement. In fact, the first Appellate Court itself found that the said agreement stands executed. The learned trial Court has returned a categorical finding that portion ABCD is a passage but it was held that it is in exclusive possession of the defendant. It appears that in the absence of any construction of the plaintiff, the defendant started using the portion RSA No. 32 of 1986 (11) ABCD and thus, laid an exclusive claim over the said portion. But from document Exhibit P.1 dated 10.6.1981, it stands proved that it is a common passage of the parties and not an exclusive possession. Mere difference in the area in possession of the defendant is not enough to raise a conclusion that it is an exclusive passage of the defendant. Keeping in view the location of the property of the defendant, even if the area in possession of the defendant, by measurement is little less than in possession of the the plaintiff is not a ground to return a finding that site ABCD has fallen to the share of the defendant. The matter can be examined from another angle as well. If site ABCD has fallen to the share of the plaintiff, there was no necessity to keep a passage as the defendant could have an access to his property from the southern side as well. In view of the above, I am of the opinion that the finding recorded by learned first Appellate Court that the plaintiff has not come to the Court with clean hands is not sustainable nor the finding that since the defendant is in possession of little less area than the plaintiff, therefore, the site ABCD is his exclusive property. Consequently, the present appeal is allowed and the judgment and decree passed by the Courts below are set aside. RSA No. 32 of 1986 (12) (HEMANT GUPTA) JUDGE August 18, 2009 ds