IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 515 of 1998 Date of decision: 28.10.2010 D.R. Goswami ... Appellant Versus Smt. Diwashwari Lal and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Sandeep Chauhan vice Mr. Karan Singh Kanwar, Advocate. For the respondents: Mr. Ajay Kumar, Advocate, for respondents No. 1(a) to 1(c) Mr. Sunil Mohan Goel, Advocate, for respondent No. 2. V.K. Ahuja, J. (Oral) : This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/plaintiff against the judgment and decree of the Court of learned District Judge, Shimla, dated 1.9.1998, vide which he affirmed the judgment and decree passed by the Court of learned Sub Judge Ist Class (3), Shimla, dated 28.6.1994, dismissing the suit of the plaintiff for permanent injunction. 2. Briefly stated, the facts of the case are that the appellant hereinafter referred to as the plaintiff filed a suit for permanent prohibitory injunction as against the respondents hereinafter referred to as defendants No. 1 and 2. It was alleged by the plaintiff 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 that he is owner in possession of land comprised in Khasra No. 382/1/6 measuring 173 Sq. yards and 5 Sq. feet. It was alleged that the plaintiff constructed a building on the said piece of land. He started construction in the year 1973 and the top floor of the building was completed in the month of March, 1977. It was alleged that top floor was connected through a wooden bridge with the open piece of land situated on a retaining wall approximately 17 feet in height. The said open piece of land is in front of land comprised in Khasra No. 1127/382/N. It was alleged that the plaintiff had connected the common passage which existed in front of the aforesaid open piece of land comprised in Khasra No. 1127/382/N with the top floor of his building. It was further alleged that in the sale deed dated 30.8.1972, vide which the plaintiff had purchased the aforesaid piece of land measuring about 173 Sq. yards, he was given right to enjoy all common passages which existed in the entire land of the vendor Pyare Lal, predecessor-in-interest of defendant No. 1. It was alleged that defendant No. 1 is the son of said vendor Pyare Lal. 3. It was further alleged that after the construction of the top floor in the month of March, 1977, the plaintiff had been enjoying the common passage existing in front of the land comprised in Khasra No. 1127/382/N. This common passage and the wooden bridge has been utilized by the plaintiff for various purposes for approaching the road. The aforesaid right to enjoy the common passage having been granted by the vendors to the plaintiff vide sale deed dated 30.8.1972 and no person has right to cause any hindrance in the use of the said passage. It was further alleged that defendant No. 2 3 has proclaimed that he has purchased the open plot of land comprised in Khasra No. 1127/382/N from defendant No. 1. It was also alleged that defendant No. 2 has been pressing hard on the plaintiff to give up the right of passage especially through the wooden bridge with the top floor of the building of the plaintiff. Defendant No. 2 in connivance with defendant No. 1 had raised a barbed wire fencing by encroaching the common passage which is five feet wide thereby depriving the plaintiff from the free access and use of the common passage existing in front of the piece of land comprised in Khasra No. 1127/382/N. Since the defendants are interfering in the right of the plaintiff over the passage, hence the suit for injunction filed by the plaintiff. 4. Defendants admitted that the plaintiff had purchased the land comprised in Khasra No. 623/382/1/6. It was denied that the construction was started in the year 1973 or the top floor construction was completed in the month of March, 1977. It was also denied that the top floor was connected through a wooden bridge with the open space owned and possessed by defendant No. 1. It was also denied that the open space of land is comprised in front of Khasra No. 1127/382/N. It was also denied that the said space of land is connected with the common passage. It was also denied that the plaintiff had been given the right to enjoy the common passage which existed in the entire land of the vendors by way of sale deed. It was also pleaded that the plaintiff is claiming a right which never existed at the time of sale of the plot. Since at the time of sale, the building was not in existence, hence the suit is liable to be dismissed. 4 5. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the plaintiff is entitled for relief of permanent prohibitory injunction restraining the defendant from raising any obstruction or any structure on the common passage in dispute land? OPP 2. Whether the plaintiff is entitled for relief of mandatory injunction against the defendant? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the plaintiff is estopped to file the present suit? 6. Whether the plaint is bad for want of better particulars? OPD 7. Relief. 6. Parties led their evidence and the learned trial Court vide its judgment decided all the issues against the plaintiff and in favour of the defendants and consequently, dismissed the suit of the plaintiff. On appeal, those findings were affirmed by the learned District Judge. Hence, the present appeal filed by the appellant. 7. It is clear from a perusal of the record of the case that the plaintiff has not based his claim of any right of easement by prescription or by necessity. He has also not filed any suit for declaration that he was entitled to this right, which was in his favour and accordingly, he was entitled to the relief of injunction in his favour. It is also clear that he purchased the plot in the year 1972, started his construction in 1973 and completed the top floor in the year 1977. His claim that he was granted the right of passage vide sale deed 5 dated 30.8.1972, has no substance since the approach to the top floor of the building from the passage never existed there, since the building in question was constructed after the purchase. The vendor could give the rights which were available at the time of sale to him, but no right which never existed at the time of sale. The learned trial Court has referred to the testimonies of PW-1 Karam Dev, PW-2 Gopi Ram, PW-3 Nand Lal and PW-4 Jai Kishan that the plaintiff has been passing from the bridge since the year 1977, which referred only to the use of vacant piece of land of the defendants by the plaintiff. This does not prove that any common passage existed as an approach to the top floor of the building of the plaintiff. It had also come up in evidence of the plaintiff as observed by the learned trial Court that the passage of top floor leads through the ground floor and from his house the cart road can be approached by a different passage. Thus, the plaintiff had a passage distinct from the passage in dispute. The learned District Judge has also referred to the testimony of plaintiff as PW-6 that no passage above level of his plot has been granted to him under the sale deed. It was also observed by the learned District Judge that the plaintiff had admitted that no passage for his building had been given to him by the vendors through the vacant plot lying above the plot sold to him. Therefore, there is no defined passage lying above the site of his plot, meaning thereby no passage existed and the plaintiff had been making the same for the reason that it was lying vacant. 8. The appeal was admitted on substantial question of law as to whether both the Courts below have misinterpreted the evidence. However, the evidence has been discussed in full by the 6 learned trial Court as well as by the learned District Judge and no infirmity could be pointed out in the judgments passed by both the Courts below that they did not refer to any particular statement or ignored the documentary evidence placed on record by the parties. Both the Courts below have discussed the evidence in full and no substantial question of law arises for reappraisal of the evidence by this Court sitting in second appeal. 9. No infirmity could be pointed out in the judgments passed by both the Courts below and accordingly, I am of the opinion that there is no merit in the appeal filed by the appellant and the same is accordingly dismissed. However, the parties are left to bear their own costs. ( V.K. Ahuja ), October 28, 2010 Judge (BSS)