IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 557 of 2009. Date of decision: 01.07.2011. Anant Ram. ….. Appellant. Versus Hari Ram & Anr. ….Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. R.K.Gautam, Senior Advocate. with Mr. Vikrant Chandel, Advocate. For the Respondents : Mr. Bhuvnesh Sharma & Mr. Ramakant Sharma, Advocates. Kuldip Singh, Judge (Oral) . The appellant was defendant and has come in appeal against judgment, decree dated 13.08.2009 passed by learned Additional District Judge, Fast Track Court, Hamirpur, in Civil Appeal No. 15 of 2007 affirming judgment, decree dated 29.01.2007 passed by learned Civil Judge (Senior Division), Hamirpur, in Civil Suit No. 26 of 1999, RBT No. 247 of 2004. 2. The facts, in brief, are that respondents had filed a suit for possession against appellant with respect to land, more specifically, described in the plaint on the ground that they are co- sharers of the suit land. The appellant is stranger and has no concern with the suit land. The respondents had earlier filed a suit for permanent prohibitory injunction restraining the appellant from raising any construction or changing nature of the suit land which was Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 compromised between the parties on 05.09.1993. The appellant had agreed that he would not raise any kind of construction on the suit land nor he would cause any interference over the same. In case on any part of the suit land, it was found that appellant had raised construction, then he would remove the same at his own cost. 3. The respondent No. 2 had filed C.M.A. No. 75 of 1993 under Order 21 Rule 32 CPC in which Tehsildar was appointed Local Commissioner, who demarcated the land. On demarcation, it was found that appellant had encroached land measuring one marla comprised in khasra No. 102/1 and another one marla comprised in khasra No. 100/1. C.M.A. No. 75 of 1993 was dismissed on 31.12.1998 on the ground that collection of the stones over the part of the suit land is not after the judgment dated 05.09.1993. In these circumstances, the respondents had filed the suit. 4. The suit was contested by the appellant by filing written statement, he took preliminary objections of limitation, estoppel, cause of action and locus-standi. It was pleaded that appellant has become owner of the suit land by way of adverse possession. The passage is in existence over the suit land in khasra No. 102/1 for the last more than 20 years. There is no alternative passage. The appellant has acquired easementry right of passage over land comprised in khasra No. 102/1. The plea of easement of necessity of passage was also raised. The replication was filed and on the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled for decree of possession as prayed? OPP. 3 2. Whether the suit of the plaintiff is time barred as alleged? OPD. 3. Whether the plaintiffs are estopped from filing the present suit as alleged ? OPD. 4. Whether the plaintiffs have no locus standi and cause of action to file the present suit as alleged? OPD. 5. Whether the defendants have become owner of suit land by way of adverse possession as alleged ? OPD. 6. Whether the suit is bad for non-joinder of necessary parties as alleged ? OPD. 7. Relief. The issue No.1 was answered in affirmative, issues No. 2 to 6 in negative and the suit of the respondents was decreed for possession. In appeal, learned Additional District Judge affirmed the judgment, decree of the Trial Court and dismissed the appeal on 13.08.2009, hence second appeal which has been admitted on following substantial questions of law:- 1. “Whether the Courts below have failed to give legal and cogent findings, while deciding the issue No.4 which is whether the plaintiffs have no locus standi & cause of action to file the present suit as alleged?” 2. “Whether the Courts below have failed to frame proper issues specially issue, whether the defendant has got right of prescription over the portion of suit land which is in the shape of passage?” 5. I have heard learned counsel for the parties and have also gone through the record. Mr. R.K.Gautam, Senior Advocate, has submitted that even though the pleas of easement by way of prescription and necessity have been taken in the written statement, but despite that no specific issue to this effect has been framed which 4 has caused serious prejudice to the appellant inasmuch as appellant could not adduce the evidence on these pleas in absence of proper issues. The two Courts below have not given specific findings with respect to pleas of easement of prescription and necessity. It has been contended that after framing proper issues, the lower Court may be directed to give chance to the parties to lead evidence and decide the matter afresh. He has also pressed the other substantial question of law of locus-standi and cause of action. 6. The learned counsel for the respondents has supported the impugned judgment, decree and has submitted that no fault can be found with the impugned judgment, decree inasmuch as the appellant was aware of pleas taken by him and he opted not to lead any evidence on the pleas of easement of prescription and necessity. At least the appellant cannot be heard to raise the grievance that in absence of issues, he could not lead evidence on the pleas of easement of prescription and necessity. He has submitted that non- framing of issues on a particular plea is not so material if the parties are aware of the controversy. He has submitted that there is no merit in the appeal which may be dismissed. 7. The substantial questions of law No. 1 and 2 can be taken up collectively for disposal as they are inter-connected. In so far as the substantial question of law No. 1 is concerned, nothing has been pointed out how respondents have no locus-standi and cause of action to file the suit. The respondents in the plaint have pleaded that they are co-owners of the suit land and appellant has made encroachment. In these circumstances, the respondents have locus- 5 standi and cause of action to file the suit. The substantial question of law No.1 is decided against the appellant. 8. In so far as the substantial question of law No.2 is concerned, the appellant has taken the plea of adverse possession on the suit land. In other words, the appellant has claimed ownership on the suit land. The appellant has also taken the plea that he has acquired easement of prescription and necessity on khasra No. 102/1 measuring one marla. This plea of easement of the appellant in the presence of plea that he is owner by way of adverse possession of the same land is mutually destructive. An owner cannot claim right of easement by way of prescription and necessity against his own land. 9. The appellant was aware of his pleas he had taken in the written statement. The appellant has led no evidence in support of his pleas that he has acquired easement by way of prescription and necessity on any part of the suit land. The framing of specific issue on a point is not so material if the parties are aware of the real controversy. At least the appellant was aware of the pleas which he had taken in the written statement. Therefore, he cannot be head to say that any prejudice has been caused to him in absence of framing of specific issue on the point of right of easement by way of prescription and necessity. The two Courts below have recorded con- current findings of facts in favour of respondents. It has not been established that two Courts below have mis-construed and mis- interpreted the evidence on record and any material evidence has been ignored. The substantial question of law No. 2 is accordingly decided against the appellant. 6 10. In view of above discussion, there is no merit in the appeal which is accordingly dismissed. July 1, 2011. (Kuldip Singh), ( krt) Judge.