Regular Second Appeal No. 2634 of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2634 of 2006 Date of decision : May 25, 2010 Mangat Ram ....Appellant versus Sanjay Kumar and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sandeep Khungar, Advocate, for the appellant Mr. PL Singla, Advocate, for the respondents L.N. Mittal, J. (Oral) Mangat Ram defendant has preferred instant second appeal. Suit was filed by respondents against the appellant alleging that they are owners in possession of house No. DS-3/3 as shown in site plan Ex. P7. There is common passage 5'-6” in width and 12' in length. Gate of plaintiffs' house opens in the said common passage which is depicted by red colour in site plan. The said passage is being used as easement of necessity and prescription since the year 1929. There is no other passage for their house. House of the defendant adjoins the house of the plaintiffs. Door of defendant's house also opens in the same passage since the defendant purchased the said house in 1986-87. However, the defendant threatened to encroach upon the said passage by raising construction. The Regular Second Appeal No. 2634 of 2006 -2- plaintiffs, therefore, claimed permanent injunction restraining defendant from encroaching upon the common passage by raising construction. The defendant, inter alia, pleaded that the disputed passage is not common passage. Half of it is owned by the defendant whereas the other half is owned by the plaintiffs. It was denied that the disputed site is the only passage for the house of the plaintiffs. It was alleged that house of the plaintiffs opens on the main road. Various other pleas were also raised. Learned Civil Judge (Senior Division), Ferozepur vide judgment and decree dated 25.9.2004 dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Ferozepur vide judgment and decree dated 24.8.2005 and judgment and decree of the trial court have been set aside and the suit has been decreed. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that the plaintiffs could not acquire easement of necessity over the disputed site because admittedly house of the plaintiffs abuts main road lying towards south of their house. In support of this contention, reliance has been placed on two judgments of Supreme Court namely Justiniano Antao versus Smt. Bernadette B. Pereira, 2004(10) J.T. 228 and Hero Vinoth (minor) versus Seshammal, 2006(2) RCR (Civil) 677 and one judgment of this Court in the case of Surja versus Har Chand, 1993(2) R.R.R. 598. On the other hand, learned counsel for the respondents Regular Second Appeal No. 2634 of 2006 -3- contended that the defendant's predecessor-in-interest purchased the house now owned by the defendant vide sale deed dated 30.4.1929 Ex. P11 whereas plaintiffs' predecessor-in-interest purchased house now owned by the plaintiffs vide sale deed dated 30.4.1929 Ex. P14. Both the said sale deeds were executed by same venders on the same date. In both sale deeds, the disputed passage of 5'-6” width has been recited to be in existence for enjoyment by vendees of both sale deeds. I have carefully considered the rival contentions. In view of recital in both sale deeds Ex. P11 and P14 executed by same vendors, it is fully established that the disputed passage of 5'-6” width is in existence at least since 30.4.1929, the date of the said sale deeds. The defendant is bound by the recital in the said sale deeds because he has derived title from vendees of sale deed Ex. P11. Consequently, defendant cannot deny the existence of the disputed passage. On the other hand, the disputed passage has been in existence since the year 1929 and the plaintiffs and their predecessors have been using the same since then. It is also undisputed that the main gate of the house of the plaintiffs opens in the disputed passage although door of a room of house of the plaintiffs also opens on the main road. However, existence of the main gate of the plaintiffs' house opening in the disputed passage reveals that the plaintiffs and their predecessors have been using the disputed passage since the year 1929. The defendant has purchased his house in the year 1986 and therefore, the defendant has no right to obstruct the disputed passage. Judgment in the case of Hero Vinoth (supra) goes against the appellant in this context. In that case, at the time of partition of property the right of access to house of defendant Regular Second Appeal No. 2634 of 2006 -4- was provided from the property of the plaintiff. Subsequently, alternative way of access became available to defendant. It was held that it would not extinguish the right of easement which was granted under contractual arrangement. In the instant case also, in view of recital in both the sale deeds Ex. P11 and Ex. P14, right to access through disputed passage was given by way of said sale deeds and the same cannot be said to be extinguished merely because there is also a road on south of the plaintiffs' house. In fact the said road was in existence even at the time of the sale deeds. The disputed passage emerges from the said road and goes upto main gate of the plaintiffs' house. In this view of the matter, keeping in view the recitals in the sale deeds in favour of predecessors-in-interest of both the parties, there is no escape from the conclusion that the disputed passage is in existence for use by owners of both the adjoining houses i.e. plaintiffs and defendant. Consequently, there is no illegality in the impugned judgment of the lower appellate court. No question of law much less substantial question of law arises for determination in the instant second appeal. For the reasons recorded herein above, I find no merit in the instant second appeal which is accordingly dismissed. ( L.N. Mittal ) May 25, 2010 Judge 'dalbir'