IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 70 of 1995 Judgment reserved on: 18.06.2010 Date of decision: 03.08.2010 ___________________________________________________________ Vijay Kumar Sud & Ors. .....Appellants. Versus Sheel Chandra & Ors. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ____________________________________________________________ For the appellants: Mr. J.S. Bhogal, Senior Advocate with Mr. Tarunjeet Singh Bhogal, Advocate. For the respondents: Mr. Bhupinder Gupta, Senior Advocate with Mr. Janesh Gupta, Advocate. V.K. Sharma, J. The present regular first appeal, though arises out of a common judgment dated 12.12.1994, rendered by a learned Single Judge of this Court in three consolidated civil suits, being Civil Suit No. 24 of 1980 (Amar Kumar Kapur & another vs. Swami Pragyana Nand Saraswati & Ors.), Civil Suit No. 39 of 1981 (Swami Pragyana Nand Saraswati vs. Ram Sarup Kapoor & Ors.) and Civil Suit No. 40 of 1981 (Sheel Chandra & others vs. Smt. Jaswant Devi Sood & another), yet it pertains only qua the last mentioned case, that is, Civil Suit No. 40 of 1981 (Sheel Chandra & others vs. Smt. Jaswant 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ...2... Devi Sood & another), whereby the said suit has been decreed in the following terms: “In view of the findings on Issues No. 1 and 2 of Civil Suit No. 40 of 1981, the suit is decreed for declaration that the plaintiffs are entitled to use the upper passage starting opposite Rock Sea Hotel from the Mall Road to the building Swadhayaya Ashram and the defendants have no right to interfere with their such right. A decree of consequential relief of permanent prohibitory injunction is also granted against the defendants restraining them from interfering in any manner in the user of the said passage by the plaintiffs and other occupants of the building Swadhayaya Ashram. No costs.” 2. It shall be pertinent to notice at this stage that two other appeals, being RFA No. 68 of 1995 (Shri Amar Kumar Kapoor & Ors. vs. Swami Pragyana Nand Ji Saraswati & Ors.) and RFA No. 132 of 1995 (Swami Pragyana Nand Ji Saraswati vs. Shri Ram Sarup Kapoor & Ors.) arising out of the impugned common judgment dated 12.12.1994, qua the aforesaid Civil Suit No. 24 of 1980 (Amar Kumar Kapur & another vs. Swami Pragyana Nand Saraswati & Ors) and Civil Suit No. 39 of 1981 (Swami Pragyana Nand Saraswati vs. Ram Sarup Kapoor & Ors.), respectively, have already been dismissed, as abated, vide orders dated 07.05.2010. 3. The background in which the three suits, as above, were consolidated and were disposed of by the impugned common judgment dated 12.12.1994, as stated vide para 1 thereof, is as under: ...3... “By order dated 17.6.1985 passed in Civil Suit No. 24 of 1980, it was ordered that Civil Suit No. 39 of 1981 (Swami Pragyana Nand Saraswati v. Ram Sarup Kapoor & Ors) and Civil Suit No. 40 of 1981 (Sheel Chandra vs. Smt. Jaswant Devi Sood & Another) are consolidated with Civil Suit No. 24 of 1980. It is not in dispute that all these 3 civil suits pertain to the same property and the parties are also same except to the extent that defendants in civil suit No. 40 of 1981, namely, Jaswant Devi Sood and Hanwant Dass Sood have not been arrayed as parties in Civil Suit No. 24 of 1980. It is further not in dispute that all the three suits involve substantially similar questions of law and facts, as such, these are being decided by a common judgment.” 4. Civil Suit No. 40 of 1981 (Sheel Chandra and others vs. Smt. Jaswant Devi Sood & another) was initially filed in the Court of Sub Judge (II), Shimla, and was later on transferred to this Court. The plaintiff sought declaration, perpetual prohibitory and mandatory injunction, on the averments that plaintiff No. 4 Swami Pragyana Nandji Saraswati was the owner of the building known as 'Swadhayay Ashram', Talbot House Estate, Shimla, standing on khasra No. 359 C/H of Station Ward Chhota Shimla, shown within points ABCD in the aks tatima, attached with the plaint. On 13.10.1977, plaintiff No. 4 had sold the first floor of the building to plaintiff No. 1, Shri Sheel Chandra, through a registered deed of sale, duly executed for consideration and registered before Sub Registrar, Shimla on 13.10.1977. The building Swadhayay Ashram ...4... is a three storeyed building. The other portions of the building have been purchased by plaintiffs No. 2 and 3, Smt. Nandni Chandra and Shri Nanak Chand from plaintiff No. 4 for valuable considerations, through deeds of sale, duly registered in the office of Sub Registrar, Shimla, on 15.10.1977. 5. It was further averred that plaintiff No. 4 purchased the land for construction of a building in the year 1968 from the owners of the Talbot House Estate and started raising his building in the year 1970, which was duly completed in the year 1976. At the time of purchase of the property, the only passage for ingress and outgress from the main public road, that is, the Mall Road, to the plot of land purchased by him was as shown by points E.F.G.A in the aks tatima filed with the plaint. This passage commencing at points E and F from the Mall Road was in existence and has been in use by the occupants of the Talbot House, main building, as the only approach to and fro from the said building to the Mall Road for the last more than 50 years. The width of this passage from the Mall to its terminus near the Talbot House, main building, is between 8 to 10 feet. 6. According to the plaintiffs, plaintiff No. 4 had been using the passage E.F.G.A for ingress and egress from his plot to the main public road, i.e., Mall Road and after the construction of the building, as an approach to the said building constructed within points A, B, C, D, as shown in the plan, as of right to the knowledge of the owners openly, peacefully, continuously and without interference from the owners. The owners also impliedly granted ...5... plaintiff No. 4 the right of passage from the existing path, shown as E.F.G.A for the beneficial use and enjoyment of the property by him, as there was no other independent or separate passage for the land transferred by the owners in his favour, except the aforesaid passage E.F.G.A., which was also being used by the other occupants of the building known as Talbot House main building. 7. The further case of the plaintiffs was that the building known as Talbot House main building situate on khasra No. 359 C/1 is also being used by the followers of 'Radha Swami Satsang', who have also been using this passage as and when they come for Satsang. The followers of plaintiff No. 4 have also been using the passage E.F.G.A to visit him including the defendants, Smt. Jaswanti Devi Sud and Shri Hanwant Dass Sud. 8. The plaintiffs go on to aver that on 07.10.1977, the owners of the property, known as Talbot House Estate, Shimla, transferred through a registered deed of sale, a part of the property, belonging to them, out of the land measuring 6448 square yards and 3 square feet, comprised in khasra No. 359 C, and shown in the tatima as khasra Nos. 359/H/B and 359 C/H/A in favour of the defendants. Thereafter, the defendants started interfering with the right of passage of plaintiff No. 4 and the occupants of the building owned by him through the above mentioned passage E.F.G.A and threatened the General Attorney of plaintiff No. 4 with dire consequences, if he or any other occupant of the building, known as Swadhayay Ashram, tried to pass through the said passage. On 10.10.1977, the defendants put a sign board affixed to iron pipes at ...6... point 'X', as shown in the tatima, thereby intending to block the passage for the use of the plaintiffs and the occupants of the building of Swadhayay Ashram. The defendant also started digging a portion of the passage towards the side of Mall Road, but the General Attorney of plaintiff No. 4 prevented him from doing so, whereupon defendant No. 2 and his labourers ran away from the spot. The General Attorney of plaintiff No. 4, apprehending further blockage, had to report the matter to the police, which was still under investigation at the time of filing of the suit. 9. It was further pleaded that the passage from points EF to GA, mentioned in aks tatima, passing through the land comprised in khasra No. 359 C/H/A and 359 C/H/B, now owned by the defendants, had been impliedly granted by the previous owners to plaintiff No. 4 for permanent use by the occupants of the building known as Swadhayay Ashram, Shimla, owned by plaintiffs No. 1 to 3 and the plaintiffs have otherwise also a right to use the said portion of the land of the defendants as an easement of absolute necessity for the purpose of passage for the use of the plaintiffs, the occupants of the building known as Swadhayay Ashram and the persons visiting the said building for ingress and egress from the Mall Road and to the public road. This is the only reasonable approach for enjoying the property by the plaintiff beneficially. The defendants being the successors of the previous owners and having purchased the building knowing fully well the rights of the plaintiffs, have no right to interfere with the user of the said passage by the plaintiffs and other occupants of the ...7... building of the plaintiffs. 10. It is lastly averred by the plaintiffs that despite repeated requests to the defendants to refrain from interfering with the user of the aforesaid passage by the plaintiffs and the other occupants of the building and to remove the sign board (Hoarding) placed by them at point 'X' on the said passage, which is a cause of nuisance, they did not pay any heed to such requests, compelling the plaintiffs to file the suit. Furthermore, they were bent upon to interfere with the rights of the plaintiffs and with a mala fide intent and to change the nature of the passage by raising permanent structure, thereby blocking the same and depriving the plaintiffs of its user. These acts of the defendants have caused and were likely to cause heavy irreparable loss incapable of being compensated in terms of money and inconvenience to the plaintiffs and other occupants of the building belonging to them and were likely to cause multiplicity of unnecessary litigation between the parties. 11. It shall be pertinent to observe at this stage that the suit was initially filed by Shri Sheel Chandra and Swami Pragyana Nand Ji Saraswati (defendants No. 1 and 2, in Civil Suit No. 24 of 1980). Later on, by an amendment, two more plaintiffs, namely, Smt. Nandni Chandra and Shri Nanak Chand were added as plaintiffs No. 2 and 3, respectively. 12. The suit was contested by the defendants. Though the written statement filed on their behalf is stated to have been filed to the amended plaint, yet in the body of the plaint they have ...8... referred to Swami Pragyana Nand Saraswati as plaintiff No. 2, as he originally was, instead as plaintiff No. 4 in accordance with the amended plaint. They have raised preliminary objections regarding the suit being bad for suppressio veri, repetition, baseless and frivolous allegations, non joinder of necessary parties, that is, owners of the land of the disputed passage, namely, Shri Ram Parkash Kapur and others and valuation. On merits, the case set up by the defendants is that the entire khasra No. 359 C/H is owned and possessed by them, which they purchased from the owners thereof, namely, Shri Ram Parkash Kapur, Shri Amar Kumar Kapur, Shri Ram Kumar Kapur, Shri Ram Swarup Kapur, Shri Ravinder Kapur and Smt. Shyama Kumari Kapur, vide a registered sale deed. Plaintiff No. 2 does not own any part of khasra No. 359 C/H nor the same is mentioned in the sale deed of plaintiff No. 2. Plaintiff No. 2 purchased one plot, measuring only 150 square yards from the aforesaid Shri Ram Parkash Kapur and others and he has made construction on a part of the said land and has also encroached upon the land belonging to the said Shri Ram Parkash Kapur and others. Copy of aks tatima attached with the plaint is wholly incorrect and has been got fabricated to suit the needs of the plaintiffs and does not tally with the tatima (plan), which the aforesaid sellers S/Shri Ram Parkash Kapur and others or their predecessors-in-interest had supplied to plaintiff No. 2 alongwith the sale deed executed in 1968. The plaintiffs have intentionally withheld the said sale deed dated 19.08.1968. The sale of first floor of the building by plaintiff No. 2 to plaintiff No. 1 ...9... was denied for want of knowledge. However, alternatively it was submitted that no title could have passed to plaintiff No. 1 in the land which he alleges to have purchased from plaintiff No. 2, as the latter was never owner of the said land on which Swadhayay Ashram was built. Besides, the so called attorney of plaintiff No. 2, namely, Shri Vijay Kumar, who is real brother of plaintiff No. 1, apparently taking advantage of absence of plaintiff No. 2, has wrongly and illegally transferred the first floor of 'Swadhayay Mandir' to his own real brother with some malicious and ulterior motives without any consideration and without knowledge of plaintiff No. 2. It was further pleaded that plaintiff No. 2 purchased only 150 square yards of land, on a part of which he constructed a building known as 'Swadhayay Mandir' and the major portion of the building has been constructed on the land which does not belong to him and which he has encroached upon. The plan attached with the plaint is a manufactured and fabricated document. S/Shri Ram Parkash Kapur and others or their predecessors-in-interest never sold the area, shown as passage in the aks tatima (plan), to plaintiff No. 2 nor any passage as such to the plaintiffs, rather the aforesaid area which was owned by S/Shri Ram Parkash Kapur and others has been sold by them to the defendants and the same has not been shown as passage anywhere nor there existed any such alleged passage. No passage existed from the Mall Road to the Talbot House, as shown in the plan, but it existed at a different place and point. It was denied that any passage existed for more than 50 years, as claimed by the ...10... plaintiffs. The said passage appears to have been improvised by plaintiff No. 2, after making construction of 'Swadhayay Mandir' from the year 1972 to 1976. However, the plaintiffs have no right of any kind whatsoever to use any part or portion of the land purchased by the defendants as passage to the said 'Swadhayay Mandir' . The land which plaintiff No. 2 purchased from the aforesaid owners in 1968 had its own independent passage, which still exists at the site. The passage to the land purchased by plaintiff No. 2 has been clearly indicated/shown in the plan in the sale deed. 13. The further case set up by the defendants is that if by taking undue advantage of the absence of the owners of the land, plaintiff No. 2 illegally started using any portion of the land belonging to the previous owners and which land has now been purchased by the defendants, the plaintiffs cannot claim any right of passage on any part of said land. The owners did not directly or even impliedly grant any right of any kind or of passage or any part or portion of the land as shown in the tatima. As such, the question of beneficial enjoyment of the property, through the said alleged passage, does not arise at all. If plaintiff No. 2 has chosen to abandon the passage, which is available to his plot/property, the defendants are not in any way responsible therefor. The plaintiff cannot create a subservient tenement on the land belonging to the defendants. It is emphatically denied that the plaintiffs have no independent passage to their building. The passage was improvised by plaintiff No. 2, between the year 1972 ...11... to 1976, when he made construction of 'Swadhayay Mandir' by taking undue advantage of the absence of the owners of the property in question. 14. It was further pleaded that the occupiers of the building, that is, main Talbot House, purchased by Radha Swami Society and others have independent passage near the house, in occupation of Shri Shyam Behari, Advocate. The passage improvised by plaintiff No. 2 on a part of the land owned by the defendants might have been used by some persons, but the same does not give any right of passage to any person, whosoever. The defendants, now being owners of the plot, are entitled not to allow any person to use any part of their land as passage, when no passage lawfully exists on the said land. The plaintiffs of their own imagination have created khasra Nos. 359 C/B and 359 C/H/A. The defendants have purchased khasra No. 359 C/H in its entirety from its previous owners and on no portion of which khasra any part of passage to any other portion of Talbot House exists, which fact has also been clearly stated in the sale deed, executed by the owners in favour of the defendants, nor there is any mention of the alleged passage in the revenue records. The transferrers of the defendants in their own right and interest to protect their property from trespass and encroachment, first put up M.S. wiring around some trees and formally handed over the possession of the land, comprising of khasra No. 359 C/H on 07.10.1977 to the defendants through defendant No. 2. It was alleged that Shri Vijay Kumar, General Attorney of plaintiff No. 2, hurled stones on the labour ...12... engaged by defendant No. 2 to fix the name board at the said site and one labourer was also hurt. The defendants were not aware of any alleged report lodged by Shri Vijay Kumar and instead defendant No. 2 had made a report to the police regarding criminal trespass and mischief on his part and his father Shri Nanak Chand, amongst others. 15. The defendants further go on to aver that the question of easement of necessity does not arise at all, as the claim of the plaintiffs in this regard is false. Radha Swami (Beas) Satsang has no concern, whatsoever, with the alleged passage, as they have independent approach and passage of their own, which is being used by them and the same passage is available to the plaintiffs, as mentioned in the sale deed of plaintiff No. 2. The plaintiffs have no right, whatsoever, to claim right of passage to a building constructed on an illegally encroached land, belonging to other persons. It was denied that the defendants have purchased any building from the previous owners and instead they have purchased only a parcel of land, on which no passage or any right of passage exists. The defendants are entitled to fix any fencing or hoarding to stop illegal trespass and encroachment on their land. The General Attorney of plaintiff No. 2 was advised on telephone as well as by registered notice, not to commit trespass on the land of the defendants, but he refused to accept the notice, as he knew the contents thereof, which had been communicated to him by defendant No. 2, telephonically. 16. On the above pleadings, the parties went to trial on the ...13... following issues: 1. Whether there exists a passage through khasra No. 859/H/B and 359/C/H/A as alleged? OPP 2. If issue No. 1 is proved, whether the plaintiff has a right of passage as alleged? OPP 3. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD 4. Whether the suit has not been properly valued as alleged? OPD 5. Relief. 17. After the parties led evidence and were heard by the learned Single Judge, the suit was decreed in the above terms, by holding issues No. 1 and 2 in affirmative and issues No. 3 and 4 in negative. Being aggrieved, the appellants-defendants have filed the present appeal. 18. We have heard the learned counsel for the parties and perused the records including those of the connected consolidated cases. 19. Be it stated at the very outset that in view of dismissal of RFA No. 68 of 1995, arising out of Civil Suit No. 24 of 1980 (Amar Kumar Kapur & another vs. Swami Pragyana Nand Saraswati & Ors.), as abated, not much survives for adjudication in the present appeal and whatever is left is only of academic discussion. It is because issue No. 11, in Civil Suit No. 24 of 1980 (Amar Kumar Kapur & another vs. Swami Pragyana Nand Saraswati & Ors. ) and issues No. 1 and 2 in the present suit, which are to the following effect, pertain to the same passage, which was also subject matter ...14... of the former suit, and with which we are presently concerned in this appeal and since issue No. 11 in the former suit was decided in favour of defendants No. 1 to 4 in that suit, who are appellants in the present appeal, and such finding having attained finality, on account of RFA No. 68 of 1995, arising out of the former suit, having already dismissed, as abated: Issue No. 11 in Civil Suit No. 24 of 1980 (Amar Kumar Kapur vs. Swami Pragyana Nand Saraswati & Ors.) “11. Whether defendants No. 1 to 4 are entitled to any right of passage as claimed by them. If so to what extent? OPD Issues No. 1 and 2 in Civil Suit No. 40 of 1981(Sheel Chandra & Ors. vs. Jaswant Devi Sood and Ors.) “1. Whether there exists a passage through khasra No. 859/H/B (sick 359) and 359/C/HA as alleged? OPP 2. If issue No. 1 is proved, whether the plaintiff has a right of passage as alleged? OPP” 20. Even otherwise, on merits, we have no hesitation to say at the very outset that on the face of the evidence on record and the spot inspection carried out by the learned Single Judge, no case is made out for any interference with the impugned common judgment dated 12.12.1994 insofar as the same relates to Civil Suit No. 40 of 1981 (Sheel Chandra & Ors. vs. Jaswant Devi Sood and another). The reasons to arrive at this inference are set out hereinafter. 21. According to the plaintiffs, the passage claimed by them exists on khasra No. 359 C/H/A and359 C/H/B. In order to prove their case, Shri Nanak Chand, plaintiff, appeared as PW-2 in ...15... Civil Suit No. 40 of 1981 and as DW-2 in Civil Suit No. 24 of 1980. According to him, he had been living in Shimla since 1932-33 and was on visiting terms with Swami Pragyana Nand Saraswati. He knew Shri Hanwant Dass (defendant No.2), who was looking after the construction work of the building of Swami Pragyana Nand Saraswati. The sanitary fittings were got fixed through him. According to him, the passage opposite Rock Sea hotel, leading from Mall Road to upper storey of the Talbot House, out houses and other buildings, has been in existence and in regular and peaceful use from the year 1930 without any obstruction from anyone. Shri Hanwant Dass had raised obstruction, for the first time in the year 1977, in the user of the passage, giving rise to cause of action and filing of the suit, out of which the present appeal has arisen. It is further stated by him that except this