IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 407 of 2001 Judgment reserved on :27.8.2011 Date of decision: 11.10.2011 Brij Mohan …Appellant. Versus State of H.P. and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Mr. Harish Bahl, Advocate. For the respondents : Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh , Judge The plaintiff has come in appeal against judgment, decree dated 26.4.2001 passed by learned District Judge, Sirmaur District at Nahan in Civil Appeal No. 22-CA/13 of 2000 affirming judgment, decree dated 27.12.1999 passed by learned Sub Judge 1st Class, Nahan in Civil Suit No. 24/1 of 1995. 2. The facts, in brief, are that the appellant claimed himself to be an owner of agricultural land in village Banog. The grievance of the appellant is that the villagers of village Talon, Bhola, Sherta and Galah have been using path existing on Khasra Nos. 249, 250 measuring 182.50 sq.mtrs., Khasra No. 251 measuring 20.2 sq.mtrs. Mohal Haripur, Nahan (for short ‘suit land’) from time immemorial. The path is also used 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 by Municipal Council for egress and ingress to their forest together with the villagers. The path over the suit land is in use of the appellant and other persons from time immemorial and as such, they have easement of necessity as well as prescription to pass through the suit land. The suit land has been acquired for Industrial Training Institute (ITI). The respondents have started digging pits so as to put angle iron poles to fence the suit land which would block the path over the suit land. The appellant filed a suit for permanent prohibitory injunction restraining the respondents from blocking in any manner or raising any construction over the suit land. It has also been prayed that in case during the pendency of the suit the respondents succeed in blocking or raising construction over the suit land, in that event, a decree of mandatory injunction may also be passed in favour of the appellant. 3. The suit was contested by respondents by taking preliminary objections of maintainability, non-joinder of necessary parties, want of locus-standi and cause of action. It has been stated that land comprised in Khasra No. 1328 is in possession of the Industry Department which was transferred to I.T.I. in the year 1965 and thereafter the institution started functioning from the year 1973. The respondents have denied the right of passage of the appellant or any other villager through the suit land. The existence of public path has been denied. It has been stated that respondent No.2 has legally erected iron poles to fence the boundary of the I.T.I. so as to check the entry of unauthorized persons and stray animals. 4. The suit was dismissed by the learned Sub Judge on 25.7.1998. The learned District Judge in Civil Appeal No. 38-CA/13 of 3 1998, after amendment of the plaint re-framed issue No.1, set-aside judgment dated 25.7.1998 and remanded the suit to the trial Court. 5. On the pleadings of the parties, the following issues were framed:- 1. Whether there is a public road in the suit land as alleged, if so its specification and its effect? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has no locus-standi and cause of action to file the suit? OPD 4. Whether the suit is bad for non-joinder of necessary parties? OPD 5. Relief. The issue No. 1 was answered in negative and issues No. 2 to 4 in affirmative and the suit was dismissed by the learned Sub Judge on 27.12.1999. In appeal, the learned District Judge on 26.4.2001 affirmed judgment, decree dated 27.12.1999, hence second appeal which has been admitted on the following substantial questions of law:- 1. Whether in the facts and circumstances of the case, suit filed by the appellant/plaintiff for the vindication of his individual rights of passage over the suit land is not maintainable, when the public at large has also a right of passage over the suit land and the suit has not been filed in representative capacity? 2. Whether the right of easement of necessity over the suit land gets extinguished on the acquisition of the land? 4 3. Whether the distinction between the right of easement of necessity and easement acquired by way of prescriptions is permissible in law in the event of the acquisition of the suit land? 4. Whether the learned Courts below have misappropriated, misinterpreted and misread the evidence on record and thereby reached at wrong conclusions? 6. I have heard Mr. Harish Bahl, Advocate, learned counsel for the appellant and Mr. J.S.Rana, learned Assistant Advocate General on behalf of the respondents. It has been submitted by Mr. Harish Bahl, that the appellant has independent right of filing the suit without adopting the mode of representative suit. It has been submitted that the rights of the appellant over the suit land are available to the appellant even after acquisition of suit land. The appellant is within his right to enforce his right over the suit land against the authorities /persons who actually invaded the rights of the appellant over the suit land. The two Courts below have mis-construed and mis-interpreted the oral and documentary evidence on record. Mr. Bahl has relied Durga Dass vs. Lt.Col. Banaras Dev AIR 1972 J & K 6 and H.P.S.E.B. Shimla and others vs. Shiv Kumar Sharma and others 1999 (2) CLJ (H.P.) 7 in support of his contentions. The learned Assistant Advocate General has submitted that after acquisition of suit land all rights of the appellant over the suit land stand extinguished. The learned Assistant Advocate General has relied State of H.P. vs. Tarsem Singh and others (2001) 8 SCC 104. 7. The substantial question of law No.1 is taken up first for determination. The Rule 8 of Order 1 provides where there are numerous 5 persons having the same interest then one person may sue or defend on behalf of all having same interest. The suit has been filed by the appellant alleging his own right over the suit land. In Durga Dass (supra), it has been held that it is now well settled that Order 1 Rule 8 CPC is merely an enabling provision formulated for the sake of convenience and it does not debar a member of community from instituting a suit on his own right in respect of a wrong done to him though the act complained by him may also be injurious to the whole community. 8. In the plaint, it has been pleaded that appellant and others are allegedly using the path over the suit land. It is thus clear that appellant has asserted his own right over the suit land and, therefore, it was not necessary for the appellant to file a suit in representative capacity even though in the plaint the averments are to the effect that other persons are also using the same path. The pleading of user of same path by other persons will not take away the right of the appellant to file the suit in his own right when it is the case of the appellant that he has right of passage over the suit land. In these circumstances, the suit filed by appellant in his individual capacity is maintainable and does not require to be filed in representative capacity. The substantial question of law No.1 is decided in favour of the appellant. 9. The substantial questions of law No.2, 3 and 4 are inter- connected, therefore, all of them are taken up collectively for determination. It has been submitted by the learned counsel for the appellant that even after the acquisition of the land the appellant has right of passage on account of necessity as well as prescription. It has been submitted that the right of the appellant over the suit land is available to 6 the appellant against respondents No.1 to 3 after the acquisition. In HPSEB, Shimla vs. Shiv Kumar Sharma, it has been held that if the encumbrances of easement is such in respect of which compensation can be claimed it extinguishes as provided under Section 16 of the Land Acquisition Act, 1894 (for short ‘Act’). But, the right of passage by way of easement of necessity is not such an encumbrance, as, if it extinguishes it becomes impossible to use the dominant tenement at all and no amount of compensation can make good the loss. It has also been held that Section 13 of the Easement Act is clear to the effect that when by a transfer, bequest or partition, a single tenement is divided into distinct and separate tenements and any of them is so situated that it cannot be used at all without enjoying an easement over the other such tenement or tenements. 10. It is common case of the parties that the suit land was acquired. As per Section 16 of the Act when the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances. The term free from all encumbrances as provided in Section 3 of the H.P.Village Common Lands Vesting and Utilisation Act, 1973 has been interpreted in State of H.P. vs. Tarsem Singh. The Supreme Court has held word “encumbrance” means a burden or charge upon property or a claim or lien upon an estate or on the land. “Encumbrance” means burden of legal liability on property, and, therefore, when there is an encumbrance on a land, it constitutes a burden on the title which diminishes the value of the land. Therefore, the consequence of vesting of right in the land free from all encumbrances is 7 that the interest, right and title to the land including the easementary right stood extinguished and such rights vested in the State free from all encumbrances. The purpose of Section 16 of the Act is that once the award has been made and compensation has been paid thereafter no encumbrance on acquired land is recognized by the Act. Thus, interpretation given by the Supreme Court of the term “free from all encumbrances” under Section 3 of the H.P.Village Common Land Act can be applied to the term “free from all encumbrances” provided in Section 16 of the Act. 11. In HPSEB, Shimla vs. Shiv Kumar Sharma, it has been held that encumbrance of easement is such in respect of which compensation can be claimed it extinguishes as provided under Section 16 of the Act. But, the right of passage by way of easement of necessity is not such an encumbrance. The appellant has miserably failed to prove his case of easement of necessity over suit land as provided under Section 13 of the Easement Act. There is no pleading and evidence that at one point of time the land of the appellant and the suit land were part of single tenement and both the tenements were divided on account of transfer, bequest or partition. Thus, no case for easement of necessity has been established by the appellant over the suit land. The appellant has failed to point out that the two courts below have mis-construed and mis-interpreted the material on record. The substantial questions of law No. 2, 3 and 4 are decided against the appellant. There is no merit in the appeal. 8 12. In view of above discussion, the appeal fails and the same is accordingly dismissed with no order as to costs. All interim orders, if any, stand vacated. October 11, 2011 ( Kuldip Singh) , (GR) Judge