Regular Second Appeal No. 631 of 1988 {1} In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No. 631 of 1988 Date of Decision:October 01, 2010 Shri Avtar Singh ---Appellant versus Shri Gian Chand and others ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Sarwan Singh,Senior Advocate, with Mr. N.S.Rapri, Advocate for the appellant Mr. Anupam Gupta, Advocate, for the respondents. *** GURDEV SINGH, J. This second appeal has been preferred by appellant-plaintiff No. 1, Avtar Singh, against the judgment and decree dated 17.11.1987 passed by Additional District Judge, Hoshiarpur, vide which he set aside the judgment and decree dated 31.7.1986 passed by Sub Judge IInd Class, Garhshankar, decreeing the suit of the plaintiffs for permanent injunction restraining the defendants/respondents from causing or putting any obstruction by any means in the passage in dispute marked as ABCD in the Regular Second Appeal No. 631 of 1988 {2} site plan attached with the plaint and situated on the western side of the property of the plaintiffs shown as BEFG in that site plan. The plaintiffs pleaded in their plaint that they are the owners in possession of the property marked as BEFG, which they purchased, vide sale dated 28.11.1958. The passage in dispute ABCD of the width of 11 feet is situated on the western side of that property and is being used by them and Khushal Singh since more than 35 years without any obstruction. They have acquired the right of easement by prescription and necessity. Defendants No. 1 to 5, who are head strong persons, in connivance with defendant No. 6, have started threatening to cause obstruction in this passage by raising construction therein in order to block the same. Even gate of their property opens towards this passage and in case the defendants succeed in their design, they would be put to great loss and inconvenience. They requested the defendants to admit their claim and not to cause any obstruction in the passage by blocking the same, but they refused to do so. Therefore, they filed suit for permanent injunction and in the alternative for mandatory injunction for removing the obstruction caused in the passage and to restore the same to its original position. The suit was contested by defendants No. 3 to 5. In their written statement they denied the contentions of the plaintiffs. They pleaded that the site ABCD is the part of the Gurudwara Ravi Dass and the plaintiffs have encroached a portion of the site of that Gurudwara situated on the east of the line BG by constructing Kotha therein about six years back and by laying foundation up to the ground level leaving gap at point 'X' which they have shown to be the gate of their house. The Gurdawara was constructed and Guru Granth Sahib was installed therein about six Regular Second Appeal No. 631 of 1988 {3} months back. There used to be a passage running from North to South at the site situated on the East of the kotha, which has been encroached by the plaintiffs in collusion with Khushal Singh about six years back. The site ABCD was never and could not be used as a passage. A very thick and old Pipal tree is standing therein. There is no question of the plaintiffs to acquire any right of easement to use this site as a passage. No cause of action has accrued to them. After encroaching upon 22 X 41 feet site situated on the East of the line BG, they are claiming the passage through the Gurudwara itself. They are estopped from filing the suit by their acts, conduct, admissions and acquiescence. There are other people from the community of Harijan and the suit is bad for their non-joinder. In fact, the suit has been filed at the instance of defendants No. 1, 2 & 6 and Khushal Singh, who have colluded with the plaintiffs in order to grind their own axe. They also took the plea that the suit is not maintainable in the present form. In replication to the written statement, the plaintiffs denied all the contentions raised therein and reiterated their averments made in the plaint. They further pleaded that Kotha on the site BEFG is in existence since the year 1960 and was constructed in their own property. There is a wall at that place of the height 5 to 7 feet. They never encroached upon any such site of any such Gurudwara. The passage has been obstructed during the pendency of the suit after the stay was granted by the Court and also just before the visit of the Local Commissioner by raising a kacha kotha and by showing some book to be Shri Guru Granth Sahib. There was neither any such Gurudwara nor any such kotha on the date of filing of the suit. Regular Second Appeal No. 631 of 1988 {4} On the pleadings of the parties, following issues were framed by the Trial Court:- 1. Whether the plaintiffs are owners in possession of the property DEFG?OPP 2. Whether there is a passage ABCD on the Western side going from northern/southern street as alleged? OPP 3. Whether the plaintiffs are entitled to the injunction prayed for? OPP 4. Whether the plaintiffs are estopped from filing this suit? OPD 5. Whether the suit is bad for non- joinder of Kewal Manso, Satya, Puro as alleged?OPD 6. Whether the suit is collusive between the plaintiff, defendants Nos. 1,2 and 6 and Khushal Singh? OPD 7. Whether the suit is not maintainable in the present form? OPD 7-A Whether defendants have violated the injunction order dated 16.3.1984? If so, its effect? OPP 7-B. Whether the defendants and other share holders committed breach of injunction order as alleged in application dated 21.3.1984? If so, its effect? OPP 7-C Whether the defendants Nos. 1 to 4 have committed contempt of court as alleged? OPP 8. Relief. To succeed in the suit, the plaintiff examined himself as PW-4, Ram Singh, PW-1, Darshan Singh, PW-2, Ram Lok, PW-3 and Heera Regular Second Appeal No. 631 of 1988 {5} Nand, Deed Writer, PW-5. On the other hand, defendants examined Madan Lal DW-1, Swarna DW-2, Mohinder Singh DW-4 and Malooka, defendant No. 3 himself appeared in the witness box as DW-3. After going through the evidence so produced on the record and hearing counsel for both the sides, the learned Trial court decided all the issues in favour of the plaintiffs and resultantly, decreed their suit, vide the aforesaid judgment and decree. The defendants preferred an appeal, which was accepted by the First Appellate Court, thereby setting aside the judgment and decree passed by the Trial Court and dismissed the suit of the plaintiffs. I have heard counsel for both the sides. It has been submitted by learned counsel for the plaintiff- appellant, Avtar Singh that the First Appellate court erred while upsetting the well reasoned finding recorded by the trial court by misreading the evidence and ignoring the most material evidence. It stands proved from the report of the Local Commissioner that the room in the passage was raised after the filing of the suit and issuance of ad interim injunction. There are cogent and convincing statements made by the plaintiff, corroborated by the statements of the other witnesses, examined by them, to the effect that there is a passage marked as ABCD in the site plan on the western side of their house, which is being used by them from the last more than 30 years and as such they have acquired the right of easement by way of prescription. The evidence produced by the defendants, in order to prove that the site in dispute belongs to Harijan community wherein Gurudwara has been constructed, does not inspire confidence and no reliance is to be placed on the same. He prayed for setting aside the Regular Second Appeal No. 631 of 1988 {6} judgment of the First Appellate Court and for restoration of the judgment of the Trial Court. On the other hand, it has been submitted by learned counsel for the defendants that the findings were recorded by the First Appellate Court with precision after duly scrutinizing the evidence produced by both the sides. It is very much clear from the evidence produced on the record that the construction, existing in the site in dispute, is an old one and was already there, when the suit was filed and in order to conceal that fact, the plaintiffs made a prayer for grant of mandatory injunction and also for the removal of the obstruction, which according to them never existed at the time, the suit was filed. He further submitted that the way in which the witnesses of the defendants and defendant No. 3 himself have been cross examined, the plaintiffs want to imply that only the site in dispute is being used as passage to their house and thus, making out a case of easement by way of necessity. There is abundant evidence on the record that there is street on the northern side of the house of the plaintiffs, which is being used by them as such. There is no ground for upsetting the well reasoned finding of the First Appellate Court that no such passage ever existed on the western side of the house of the plaintiffs and the appeal is liable to be dismissed. The plaintiffs examined Ram Singh, PW-1 and Darshan Singh , PW-2, for proving the sale deed, copy of which has been proved on the record as Ex. P-1, for proving that they purchased the property BEFG. That sale deed was never assailed in the cross examination of these witnesses. That sale deed was executed in the year, 1958 and at that time a passage had been shown on the western side of that property. Even the defendants Regular Second Appeal No. 631 of 1988 {7} have alleged that there is shamlat deh on the western side of that property though they have denied the contention of the plaintiffs that the same was being used as a passage and according to them, it is being used by Harijan Community. The defendants proved on record the certified copy of the order dated 29.4.1981(Ex. D-2) for making their contentions probable. That order was passed in the suit, filed against defendants No. 1 and 2 by one Tirath Ram for possession of the property adjoining the property of the plaintiffs and situated on the eastern side thereof. That suit was never heard and finally decided but was disposed of in view of the statements made by the parties. That order was passed in the suit in which the plaintiffs were not a party, cannot be made binding upon them. The same is neither a judgment in rem nor is a judgment in personam nor is a judgment which deals with the public rights. The same is not admissible under Sections 41, 42 or 43 of the Evidence Act. The plaintiff, PW-4 has deposed about all the facts pleaded by him in the plaint. Though it may be inferred from the questions put to Swarna DW-2, that the plaintiffs intended to show that they are not using the street situated on the northern side for ingress to and egress from their house, but is very much clear from the perusal of the statement of the plaintiff himself that they are using that street also. No doubt in the plaint they also pleaded that they are using the land in dispute as passage by way of easement of necessity. But the fact remains that they have produced evidence to the effect that the existing street is being used by them as passage since the time they purchased the property i.e. 28.11.1958. They have also been able to prove that one of the gate of their house opens towards that site, which has been shown as mark “X” in the site plan. Thus, Regular Second Appeal No. 631 of 1988 {8} they acquired right to use the site as passage by way of prescription. The crucial question to be determined is, whether the kotha/room, which has been termed as Gurudwara, was in existence when the suit was filed or the construction thereof was raised subsequently. On the application filed by the plaintiffs, the Trial Court appointed Sh. Avtar Singh Gill, Advocate, as Local Commissioner, for visiting the site and for making a report about the construction made in the site in dispute. That Local Commissioner visited the site on 27.3.1984 and submitted his report on 29.3.1984. It is incorporated in the report that this is the newly constructed room on point LMNO in the site ABCD and there was no shutter and the door of that room was opening towards the west and two wooden planks have temporarily been placed and those were reported to have been placed on the morning of 27.3.1984. The mud found to have been used for the construction of that room, was partly wet and partly dry at the time of the visit of the Local Commission. Had the construction been old, there was no question of any such wet mud. The same was possible only if the construction had been raised just 3 - 4 days before the visit of the Local Commissioner as judicial notice can be taken of the fact that the mud hardly gets 2 -3 days to dry up. It can easily be inferred from that report of the Local Commissioner that this room was constructed hurriedly after the filing of the suit. No doubt, Malooka defendant DW-3 and the witnesses examined by defendants tried to make their statements that this construction was raised about four years back from the date of recording of their statements and it can be said from their cross-examination that they meant that the said construction was made two years before the filing of the suit but in view of the facts collected by the Local Commissioner at the Regular Second Appeal No. 631 of 1988 {9} spot, no reliance can be placed on their testimony so far as the age of that construction is concerned. After the due consideration of the statements of the parties, and the witnesses examined by both the sides and taking over all view of the evidence produced on the record, I am of the considered opinion that the plaintiffs have been able to prove that the site ABCD situated on the western side of their house was used by them as a passage and they acquired right of easement by way of prescription. Therefore, the defendants had no right to block the same by raising construction of Room/Gurudwara. The findings recorded by the First Appellate Court are based on misreading of evidence and are liable to be set aside. Accordingly, this appeal is hereby accepted. The judgment and decree of the First Appellate Court is set aside and the suit of the plaintiffs is decreed. The defendants are perpetually restrained from interfering in the use of the site in dispute as passage by the plaintiffs and they are directed to remove the construction raised there within one month from the passing of this order. (GURDEV SINGH) JUDGE October 01, 2010 PARAMJIT