RSA No.1888 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA Nos.1888 of 2009 & 4827 of 2009 Date of decision: 12.10.2010 Net Ram ......Appellant(s) Versus Shiv Ram @ Shiv Narain etc. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Amit Jain, Advocate for the appellant. Rakesh Kumar Garg, J. This judgment shall dispose of two appeals i.e. RSA Nos.1888 of 2009 and 4827 of 2009 as both the judgments have arisen out of one common judgment passed in two civil suits between the parties and the appeals against the aforesaid judgment were also decided by one common judgment. As per the averments made in Civil Suit No.482 of 2.3.1998 titled as Net Ram Yadav v. Shri Shiv Ram and others, the plaintiff- appellant was the absolute owner in possession of residential house marked by letters ABCDEF in the site plan situated within the abadi Lal dora of village Deha Patti (Bhopani) Tehsil and District Faridabad. It was further pleaded that gates of the said premises abut on the PWD Faridabad-Lalpur Road towards southern side of the premises and windows, ventilators etc. attached with the southern wall of the premises at first floor and second floor open towards its southern side. The plaintiff- appellant was using and enjoying the aforesaid facility as his easementary right since long time. It was also pleaded that the defendant-respondents were strangers qua the courtyard marked by letters ABEF and shown red RSA No.1888 of 2009 2 in the site plan but the respondents in connivance with each other started to collect the building material in order to block the passage and entry of the plaintiff to his residential premises. The respondents were bent upon to interfere in the use and enjoyment of ingress and egress of the appellant to the residential house and further use and enjoyment of easementary rights to which they have no right, title or interest to do so. Hence, the necessity arose to file the present suit restraining the defendant-respondents from raising any sort of construction and interfering into the peaceful possession of the plaintiff and use of courtyard marked as ABEF. The defendants filed separate written statements. In his written statement, respondent No.1 submitted that he was in possession of an area measuring 14’x100’ towards north to Faridabad-Lalpur Road abuting the road and there was house of Jai Kishan in the East and Gali leading to village Deha in the West. Respondent No.1 had duly filled in foundation of shops upto DPC level in this area of land. It was further pleaded that respondent No.1 was owner in possession of entire khasra No.143/1. Some area from this khasra number was taken out for construction of a road and the remaining portion was owned and possessed by him. Ownership of the plaintiff-appellant was denied. It was also denied that the appellant was using and enjoying any such ventilation facility as his easementary right. It was further stated that the appellant removed the wall recently and had opened two gates. It was also submitted that the appellant had his doors and windows in the main Rasta leading to village Deha. Respondent No.2 in his written statement stated that he was declared as owner in possession of khasra No.143 vide judgment and decree dated 25.9.1990. It was further pleaded that he was also owner in possession of some portion in Laldora i.e. Khasra No.105 similar to the RSA No.1888 of 2009 3 rights of the appellant. Other contents of the plaint were denied and dismissal of the suit was prayed. Replication to the written statement controverting the allegations of the written statement and reasserting the averments of the plaint was filed by the plaintiff. On the pleadings of the parties, the following issues were framed: “1. Whether the plaintiff acquired the easementary rights of ventilation and egress of rainy water through the suit property by way of prescription? OPP. 2. Whether the plaintiff has no locus standi to file the present suit? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Relief.” The second suit i.e. Case No.RBT 971 of 6.9.1997 was filed by respondent No.1 alleging that he was owner in possession of land measuring 14’x100’ forming part of Khasra No.143/1 situated within the abadi of village Bhopani, Tehsil and District Faridabad. The suit land was ancestral qua respondent No.1. He had laid foundation of shops in the suit land and was enjoying peaceful possession over the suit property as owner of the same. It was further pleaded that the appellants wanted to take possession of the suit property forcibly and illegally for which they had no right to do so. Respondent No.1 requested the appellants not to dispossess him forcibly and illegally but they refused to do so. Hence the suit for a decree of permanent injunction restraining the appellants from demolishing the suit property and dispossessing respondent No.1 from the suit property was filed. RSA No.1888 of 2009 4 The appellant filed written statement submitting that he was owner in possession of the residential house as detailed in the plaint. It was further submitted that there was a green belt in between PWD, Faridabad- Lalpur road and that of southern wall of the appellant's premises with a measurement North-South 100’-East-West 14’ and the gates of the appellant's premises abut on the PWD Faridabad-Lalpur Road towards Southern side and windows and ventilators attached with the aforesaid land of the appellant at first floor and second floor open towards the southern side. Other contents of the plaint were denied by the defendants and dismissal of the suit was prayed. Replication to the written statement controverting the allegations of the written statement and reasserting the averments of the plaint was filed by respondent No.1. On the pleadings of the parties, the following issues were framed in the second suit: “1. Whether the plaintiff is owner in possession of property in dispute mentioned in para No.1 of the plaint? OPP 2. Whether the suit is bad for misjoinder of defendants No.2 to 6? OPD 3. Whether plaintiff has any cause of action and locus standi to institute the present suit against the defendant? OPD 4. Whether the suit of the plaintiff is false, frivolous, vague and fictitious and the defendants are entitled for special cost? OPD 5. Relief.” Both the suits were consolidated and the evidence was RSA No.1888 of 2009 5 recorded in the previous suit i.e. Civil Suit No.482 of 1998. On appreciation of evidence, the trial Court found that once there was no old construction of the appellant, who was plaintiff in Civil Suit No.482 of 1998 and he had Rasta on the west side, he was not entitled to easementary right by way of prescription. The trial Court also found that the appellant had previously filed a suit for permanent injunction which was withdrawn and at the time of withdrawing the suit, no permission to file the fresh suit was sought and thus, in view of Order 2 Rule 2 (2) CPC, the suit was held not maintainable as the appellant could not sue in respect of the relief of easementary right as the same omitted. In the second suit i.e. Civil Suit RBT No.971 of 1997, the trial Court found that Khasra No.143/1 belongs to respondent No.1 and he had constructed some shops there and it was held that respondent No.1 was owner in possession of the property in dispute. Other issues were not pressed. Hence suit No.482 of 1998 was dismissed whereas second suit i.e. RBT No.971 1997 titled as “Shri Shiv Ram @ Shiv Narayan v. Net Ram Yadav and others was decreed to the extent that the appellant was restrained from demolishing the suit property and dispossessing respondent No.1 from the suit property. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the appellant filed Civil Appeal No.54 of 2008 against Civil Suit No.RBT 971 of 6.9.1997/26.11.1998 and Civil Appeal No.55 of 2008 in Civil Suit No.RBT 482 of 2.3.1998. Both these appeals were dismissed by the Lower Appellate Court vide impugned judgment and decree dated 21.10.2008. Hence the present appeals. I have heard learned counsel for the appellant and perused the impugned judgment and decrees. While dismissing the appeals, the Lower Appellate Court concurred with the judgment and decrees of the trial Court holding that the RSA No.1888 of 2009 6 appellant had failed to prove his case regarding easementary rights. The onus to prove that land was owned and possessed by him was upon the appellant. However, the appellant failed to prove the same. It was for the appellant to show that he was owner of area falling in Khasra No.105 and that disputed portion was part of Khasra No.105. In the present case, the ownership of the appellant with regard to house constructed on Khasra No.105 was not disputed. The dispute was that the disputed area i.e. 14'x100' does not fall in Khasra No.105 but falls in Khasra No.143 and 143/1. While upholding the judgment of the trial Court, the Lower Appellate Court relied upon the demarcation report Ex.PX given by the Local Commissioner appointed by the Court and Ex.DW-4/A demarcation report given by the Naib Tehsildar wherein it was mentioned that immediately after metaled road, there was a kacha portion/strip which was a part of Khasra No.143 and 143/1 and Khasra No.105 starts after this kacha portion. In both these reports, it has been mentioned that after kacha portion, Khasra No.105 falls in abadi Deh. From the aforesaid reports, it was established that the disputed property does not fall in Khasra No.105. The onus to prove the aforesaid fact was upon the appellant. The demarcation reports are of no help to the appellant. Thus, in the absence of any evidence in favour of the appellant, no fault can be found with the findings of the Courts below in view of the evidence as discussed above. On one hand, the appellant was claiming to be owner in possession of the suit land and on the other hand, he claimed easementary rights over the disputed portion of land. Both pleas are contradictory in nature. However, in the present case, the appellant has failed to establish his rights as owner as well as his easementary rights over the disputed property. No material evidence in support of his case with regard to easementary right has been placed on record. The appellant has failed to prove the necessary RSA No.1888 of 2009 7 ingredients of easementary rights. Not only this, in Civil Suit No.482 of 1998, it was held that since the appellant had filed a suit for permanent injunction previously without claiming the relief pertaining to right of easement and the said suit was dismissed, the present suit was hit by Order 2 Rule 2 (2) CPC and was not maintainable. It is not in dispute that when the earlier suit was filed, the claim of easementary right which was omitted by the appellant was existing even at the time of filing of that earlier suit and now at this stage it is not permissible to him to raise the said ground in the instant suit. In view of the aforesaid discussion, I find no merit in these appeals. No substantial question of law arises. Consequently, both the appeals are dismissed. October 12, 2010 (RAKESH KUMAR GARG) ps JUDGE