IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 416/1998 Reserved on:31.8.2010 Decided on:24.9. 2010 ________________________________________________ Namo Devi and others. …Appellants. Versus Rajender Kumar and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. For the Respondents :Mr. Surinder Saklani, Advocate vice Mr. T.S. Chauhan, Advocate. ________________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 31.7.1998 passed by the learned District Judge, Kullu in Civil Appeal No.26/1997. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondents-plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) instituted a suit in the Court of learned Senior Sub Judge, Kullu 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 on the ground that the land comprised in Khata Khatauni No. 180/320, Khasra No. 618 measuring 0-11-0 bighas situated in Phati Dhalpur, Kothi Maharaja, Tehsil and District Kullu was recorded in their possession as tenant-at-will and Thakur Luxmi Narayan as owner. Appellants-defendants (hereinafter referred to as ‘defendants’ for convenience sake) were also recorded as tenants over khasra No. 618 min to the extent of their shares. Plaintiffs and defendants became owner of the land after coming into force of the Himachal Pradesh Tenancy and Land Reforms Act. Plaintiffs have constructed a residential house and a shop of Dry Cleaners over the suit land and the vacant land is used as common land for the purpose of drying the clothes etc. There is also vacant land on the back side of the house of the plaintiffs, which is also enjoyed by the plaintiffs. There is one common path, which leads from the Municipality Committee’s path Dhalpur to Sarwari upto the house of the plaintiffs and this path is 20 feet in length and 4’x9” in width. This path (hereinafter referred to as ‘disputed path’) is being used by the plaintiffs since the time of their predecessor-in-interest openly, peacefully and without any interruption for the last more than 40 years. There is no other path to connect the house of the plaintiffs with the Municipal path. This path has been shown in the plan by the letters (‘A’, ‘B’, ‘C’ and ‘D’). Defendant started obstructing this 3 path at point ‘EF’ as shown in the plan and threatened the plaintiffs not to allow them to dry their clothes over the vacant land shown by letters (‘G’, ‘H’, ‘K’ and ‘P’) in the plan. Defendants have also constructed a wooden gate at point ‘EF’ and obstructed the path completely. 3. Defendants contested the suit on the ground that the site plan attached with the plaint by the plaintiffs is incorrect and incomplete and the correct site plan has been attached with the written statement. The common land shown by the letters (‘G’, ‘H’, ‘P’ and ‘K’) in the site plan filed by the plaintiffs was exclusively owned and possessed by defendant No.1 only, namely, Sh. Chhane Ram. The land comprised in Khasra No. 610, which was situated between Municipal Road and Khasra No. 618 was also in the ownership and possession of defendant No.1 and plaintiffs. The front portion of the disputed stairs is situated over this land. The front portion constituted only four steps, which is common for both the parties. The land of the parties at this point is separated by a common cemented drain. Plaintiffs go to their dry cleaning shop and houses from this point. There are also wooden stairs leading to the first floor of the building of the plaintiffs at this point. Plaintiffs are running Dry Cleaning Shop in the ground floor of their house. The first floor is at a level of the ground floor of the house of Kaushalya Devi, which 4 is situated on its back side. There is another cemented approach to the house of Kaushalya Devi running on the North East sides of the building of the plaintiffs where Dry Cleaning Shop is run and a part of which is constituted of stairs. Therefore, beyond the above four steps of disputed path; the remaining disputed path is exclusively owned and possessed by the defendants. There was a wooden frame at point ‘EF’ in the form of gate made by defendant No.1 (since deceased) at the time of construction of his house and the same is in existence for the last more than 40 years. The suit path was also constructed at that time by defendant No.1-Chhane Ram exclusively. Predecessor-in-interest of the plaintiffs had acquired their land after 8-9 years of the construction of the disputed path and their house and it was thereafter that defendant Channe Ram allowed him to use the first four steps of the suit path in order to reach his property. Defendants had fixed swinging gate at point ‘EF’ about 3-4 months back and the same has caused no obstruction to the plaintiffs as the same was not fixed on their path. Plaintiffs filed replication to the written statement filed by the defendants. In the replication, plaintiffs reiterated the averments, as stated in the plaint and prayed to decree the suit. The trial court framed the issues. The suit of the plaintiffs was decreed by the trial court on 3.3.1997. 5 Defendants preferred an appeal before the learned District Judge, Kullu. Learned District Judge, Kullu dismissed the appeal on 31.7.1998. Hence, this Regular Second Appeal against the judgment and decree dated 31.7.1998. The same was admitted on the following substantial questions of law: 1. “Whether a plea of easement of necessity was made out in the facts and circumstances of the case and the plea of Dominant and Survient owner could be invoked to sustain the plea of easement of necessity? 2. Whether in view of the Patta, Ex. DA and report of the Local Commissioner and also the fact that alternative approach and path has been established to the property of the plaintiffs, the suit of the plaintiffs could be decreed and the findings of the court below are vitiated? 3. Whether the District Judge erred in not relying upon the admissions of the plaintiffs, recorded in the suit out of which RSA 252/93 arises, where the plaintiffs had admitted that they had an alternative path to the property? 4. Whether the plaintiffs could be permitted to raise inconsistent pleas of ownership and easement or necessity on the land and said pleas could be sustained in the facts and circumstances of the case?” 4. Mr. Rajnish K. Lal has strenuously argued that the judgments and decrees passed by both the courts below are against the principles of law and courts below have not correctly appreciated the oral as well as documentary evidence. 6 5. Mr. Surinder Saklani has supported the judgments and decrees passed by both the learned courts below. 6. I have heard the learned counsel for the parties and have perused the record carefully. 7. Since all the substantial questions of law are interconnected and interlinked, therefore, the same were taken up together for determination to avoid repetition of discussion of evidence. 8. Plaintiffs have produced as many as six witnesses. Defendants have produced seven witnesses. Plaintiff Rajender Kumar has appeared as PW-1. He has reiterated the averments stated in the plaint. According to him, plaintiffs are owners of 11 biswas of land in Khasra No. 618 while defendant Chhane Ram (deceased) had only one biswa of land in this Khasra number and the defendants had fixed the gate about 20-25’ at the end of staircase, which path is 30’ in length and being used as common by both the parties and the defendants have fixed the gate in October, 1992. He has admitted in his cross- examination that there is a water drain alongwith the path in dispute shown in the plan Ex. PA and the house and shop of Channe Ram are situated on the right side of the path and has further admitted that the land has not been partitioned by the defendants. He has denied that the path of the plaintiffs is 7 separated from the path in dispute after fourth step. On re- examination, he has stated that the plaintiffs had been using the path in dispute from the time of their ancestors and there is no other path existing on the spot except the path in dispute to go to old and new house of the plaintiffs. 9. PW-2 Banwari Lal has testified that the path in dispute is common of the parties and is being used by them. In cross-examination, he admitted that he is working in the shop of Harish Kumar situated in the house of plaintiffs. 10. PW-3 Ajit Kumar has deposed that the path in dispute was used by him in order to go to the Video Parlour and wooden stairs were constructed lateron on the directions of the Sub Divisional Magistrate, who asked the plaintiffs to have one path for entering the Video Parlour and another path to exit and both the parties had been using the path in dispute and persons coming to see the families had also been crossing through the path. The visitors had been visiting the Video Parlour through the stairs in dispute and had been going out through the wooden stairs. 11. PW-4 Diwan Chand has deposed that he has visited the spot as Local Commissioner. He gave his report Ex.LC/1. He has admitted in his cross-examination that the stairs are made of cement from points ‘AD’ to ‘EF’. He has also admitted 8 that the stairs at point ‘GH’ leads towards the East and goes upstairs. 12. PW-5 Dev Dutt was working as Head Clerk in the Municipal Committee, Kullu. According to him, the plan of the house of Bhagat Ram Ex.PW-5/A was sanctioned on 26.4.1970 as per sanction Ex.PW-5/B and the sanction letter Ex.PW-5/C. In his cross-examination, he has stated that sanction was given for addition and not for construction of new house and the Municipal Corporation had not made any verification about the path shown in the site plan Ex.PW-5/A. 13. PW-6 Udmia has testified that he constructed the new house and stairs of Bhagat Ram. 14. Defendant No.1 Chhane Ram (deceased) had appeared as DW-1. He deposed that he purchased the land from Damodar Dass in the year 1947 for the construction of a house. According to him, plaintiffs constructed a house 4-5 years thereafter and he left four stairs to the plaintiffs as an approach to their house. Thereafter plaintiffs constructed their own stairs. He deposed that he fixed the gate at the top of the disputed stairs which was fixed when house and stairs were constructed by him and he again clarified that he fixed the door frame at that time when the gate was fixed lateron. He got the plan of his house sanctioned vide Ex. PB and DC. He fixed the 9 gate in the frame about two years back as the persons passing through National Highway used to go through this path. 15. DW-2 Kali Dass has deposed that the Patta Ex.DA was written by his father and Patta Ex. DC was written by him. DW-3 Netar Singh has deposed that he has worked as Carpenter to construct the house of the defendants. DW-4 Lal Chand has deposed that the shop of his father is situated at a distance of about 50-60 steps from the path in dispute and that the defendants constructed the stairs and house and had been using the same. DW-5 Roshan Lal has prepared the site plan Ex. DW-5/A. DW-6 Ishwar Chand has deposed that the stairs in dispute have been constructed by the defendants adjoining to the house, which were constructed about 50 years back, and the plaintiffs have been using only three stairs and the stairs are in the land of the defendants. DW-7 is Surinder Kumar, Clerk, Municipal Committee. He has testified that the house of Chhane (deceased) Ram was assessed for tax on 31.3.1950. This is the oral evidence led by the plaintiffs and defendants. 16. The plaintiffs have filed site plan Ex.PA. Ex.PB is the copy of jamabandi. The site plan of Bhagat Ram is Ex.PW- 5/A, which was sanctioned vide Ex.PW-5/B and sanction letter is Ex.PW-5/C. Ex. LC/1 is the report of the Local Commissioner prepared by PW-4 Diwan Chand. In this report, the path has 10 been reflected at point ‘AB’ in the sketch map and the wooden gate has been shown at point ‘EF’. The defendants have placed on record copy of Patta Ex. DA and DC and the copy of the site plan Ex.DW-5/A. A bare perusal of jamabandi Ex. PB discloses that the land in dispute comprised in Khasra No. 618 had been in possession of the parties and this khasra number had been shown as 618 min in possession of both the parties. Khasra No. 618 has not been partitioned. It is evident from the oral as well as documentary evidence led by the plaintiffs that the path in dispute is in existence before 1961. The path is being used by the plaintiffs for going to their house, shop and Video Parlour. The defendants have not proved by leading any tangible evidence on record that there was any alternative passage available to the house of the plaintiffs. Defendant No.1 Chhane Ram (deceased) could not give any explanation why he has put the gate in October, 1992. Both the courts below have correctly appreciated the oral as well as documentary evidence and came to a right conclusion that the path was in existence before 1961 and the plaintiffs had been using it. Defendants, as noticed above, could not prove that there was any alternative path except the path in dispute. 17. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in 11 the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), J. 24.9. 2010. *awasthi*