IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Second Appeal No. 52 of 2003 Sri Jeet Singh … Appellant. Versus Sri Jagar Nath …. Respondent. Mr. P.C. Bisht, learned counsel for the appellant. Mr. L.K. Tewari, learned counsel for the respondent. Dated: 19-8-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 100 of the C.P.C., has been preferred against the judgment and decree dated 3.6.2003, passed by Additional District Judge, Pauri Garhwal, in Civil Appeal No. 31 of 1998, dismissing the appeal and maintaining the judgment and decree dated 15-10-1998, passed by Civil Judge (J.D.), Pauri Garhwal in O.S. No. 29/1995, whereby the suit of the plaintiff/respondent was decreed. 2- Brief facts of the case are that the plaintiff/respondent instituted a suit before the Civil Judge (J.D.), Pauri Garhwal for permanent injunction against the defendant/appellant on the ground that both the parties belong to village Kharet Malla, Patti Bangarsyun, District Pauri Garhwal. The plaintiff is the owner in possession of Khasra Nos. 896, 897, 898, 907, 908, 909, 910 and 911 of Khautani Khata No. 6, and Khasra Nos. 927, 928, 929, 930, 931, 932, 933, 934, 935, and 936 of Khautani Khata No. 5. The land of Khautani Khata No. 5 has been shown in the plaint as disputed land-I and that of Khautani Khata No. 6 as disputed land-II. According to the plaintiff, although the disputed land has been recorded as joint property of the plaintiff along with other family members in the revenue record, but the same pertains to the share of the plaintiff and he is in sole ownership and possession of that land. 2 The further case of the plaintiff is that near to disputed land No.I, there existed plot No. 894 of the defendant, on which he got constructed a house about 9 years ago. In plot No. 931 of disputed land No. II, there is water source. The defendant has no concern with the land of the plaintiff. The defendant got constructed his house in absence of the plaintiff and the family members and cattle of the defendant started unauthorizedly using the disputed land No. I and land No. II thereby causing damages to the standing crops. The plaintiff instructed the defendant not to use his land but the defendant abused him and prepared to do marpit with the plaintiff. The plaintiff filed complaint before the S.D.M. Pauri Garhwal. The matter was inquired and the defendant was directed not to use and cause damage to the land of the plaintiff, but he did not pay any heed to it. The plaintiff also served notice to the defendant though his counsel but of no avail. Hence the suit. 3- The defendant contested the suit by filing his written statement and alleged that the plaintiff is not the sole owner of the disputed land. The other co-owners have no objection in using the land by the defendant. According to the defendant he was owner in possession of Khasra No. 894 of Khautani Khata No. 9, in which he has constructed a house in which he is residing with his family members. According to the defendant, plot No. 914 is Banjar land of U.P. Govt. which is adjacent to defendant’s land and from this land the defendant and his family members go to fetch the water. The water source is situated on the Banjar land owned by State Govt. adjacent to plaintiff’s plot No. 931. It is also pleaded that the defendant and his family members go to the main road from their house through the land in between plot Nos. 896 and 911. He further alleged that 3 he is using the above Rastas to reach the water source and the main road from the times of his fore-fathers without any obstruction. The defenant’s further case is that the plaintiff himself allowed the defendant to use the above Rastas before the Panchayat due to the fact that he was using these Rastas from the time of his fore- fathers. The plaintiff has filed the suit only with a view to dispossess the defendant from Khasra No. 894. The defendant denied to have caused any damage to the plaintiff’s land. 4- On the pleadings of parties, the learned Civil Judge (J.D.), has framed the following issues in the suit:- 1- Whether the plaintiff is the owner in possession of the disputed land as alleged in the plaint?. If so, its effect?. 2- Whether the defendant has perfected easementary right to use the disputed Rasta?. 3- Whether the suit of the plaintiff is barred by the principle of estoppel and acquiescence on the basis of Panchnama dated 7-8-1995? If so, its effect?. 4- Whether the disputed Rasta goes through the land of the plaintiff? If so, its effect?. 5- Any other relief, to which the plaintiff is entitled to get?. 5- Thereafter parties adduced evidence in support of their case. The learned Civil Judge (J.D.) after hearing learned counsel for the parties and considering the material available on record, decreed the suit of the plaintiff and restrained the defendant from using the disputed land and directed not to interfere in the possession of the plaintiff. 4 6- Feeling aggrieved, the defendant preferred appeal before the Additional District Judge, who vide impugned judgment and decree dated 3-6-2003 dismissed the appeal. 7- Being aggrieved by the aforesaid judgment and decree passed by the first appellate court, the defendant has preferred this second appeal. 8- I have heard the learned counsel for the parties and perused the material on record. 9- The learned counsel for the defendant/appellant has submitted before me that the courts below did not take into account the facts that the disputed property is joint property and besides the plaintiff, there are other co-tenure holders, the defendant has been passing through the disputed Rasta since the time of his fore fathers, therefore, the suit at the instance of plaintiff alone would not be maintainable and was liable to be dismissed. He also contended that unless specific declaration by way of filing partition suit under Section 176 of the U.P. Z.A. & L.R. Act was obtained by the plaintiff, he could not be held to be the owner/Bhumidhar of the disputed land. 10- Learned counsel for the respondent, on the other hand, has submitted that the disputed land belongs to the share of the plaintiff/respondent by mutal agreement between the co-tenure holders, and he is in exclusive ownership in possession of the same, therefore, relief could have been granted in his favour by the courts below. 5 11- Perusal of record reveals that paper No. 8-C copy of Kahutani 1394-1399 Fasli has been filed on record, in which Khasra Nos. 896 to 898 and Khasra Nos. 907 to 911 have been recorded in the names of plaintiff Jagarnath and his brothers Baijnath and Ramnath and after the death of Baijnath names of his sons Laxmi Prasad, Mohan Lal, Rajendra Prasad and Birendra Prasad have been added in place of Baijnath. It is thus, quite clear that the disputed land is a joint property. But the plaintiff’s case is that the disputed land has come to his share by mutual agreement between the co-tenure holders and he is the sole owner in possession of the said land. From perusal of aforesaid Khautani it reveals that the Khautani consist of many other Khasra numbers and the contention of plaintiff seems plausible that he used to plough the disputed land and the said land is in his exclusive ownership and possession by mutual consent of the co-tenure holders. The plaintiff appeared in the witness box as P.W.3 and has proved the above fact. Had there not been any mutual agreement between the co-tenure holders about the partition of joint property, and there being no objection to the co-tenure holders in using the land by the defendant, the defendant could very well have produced the co-tenure holders in support of his case. But the defendant did not adduce any cogent and independent evidence to controvert the above contention of the plaintiff. It is a settled law that any of the co- tenure holders can bring a suit against the intruder. 12- So far as the easementary right over the disputed land is concerned, it is admitted case of the defendant/appellant that about eleven years prior to the institution of the present suit he had constructed his house and thereafter he and his cattle started using the 6 disputed land in order to fetch the water from Khasra No. 931 and to reach the main road, therefore, the defendant has no claim of easementary right over the disputed land. It is also admitted case that prior to construction of the house by the defendant he used to go to his Khasra No. 894 through the mends of the fields of the plaintiff from main Rasta and there existed no Rasta. Commissioner’s report paper No. 40-C and 41-C dated 10-8-95 also shows that the main Rasta is in the western side of the house of the defendant and he used that way falling in plot No. 911. The defendant is using the Khasra No. 931 of the plaintiff in eastern side in order to fetch water. 13- There is paper No. 36-C dated 7.8.95 on record according to which an agreement was reduced to writing between the parties before the Panches, but the defendant did not comply the directions mentioned in the agreement, therefore, the said agreement was cancelled by the panches vide deed dated 20-8-95, paper No. 56-C. Therefore, the courts below have rightly concluded that the defendant and his family members have been using the Rasta to fetch the water after construction of his house in the year 1984-85; the defendant was using the mends of plots belonging to plaintiff and after construction of his house he want to use these plots as Rasta; the defendant did not acquire any easementary right over the disputed land and the suit of the plaintiff is not barred by the principle of estoppel and acquiescence by the written agreement dated 7-8-1995. Both the courts below have recorded concurrent finding of fact on the factual aspect of the case and the same do not require any interference in this second appeal. I find that no substantial question of law is involved in this appeal to be answered by this Court. 7 14- For the reasons stated above, the appeal lacks merit and is liable to be dismissed. 15- Accordingly, the appeal is dismissed. The impugned judgment and decrees passed by both the courts below are hereby confirmed. 16- The interim order dated 27-6-2003 is vacated. (B.C. Kandpal, J.) SP 8