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2011 Supreme(HP) 2201
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Kuldip Singh, J.
Swarn Singh…Appellant.
Versus
Om Parkash and others....Respondents.
R.S.A. No. 94 of 2001
Decided on: 27.5. 2011
For the appellant:Mr. Ajay Sharma, Advocate.
For the respondents:Mr. K.D.Sood, Advocate for respondents No.1 to 3. Ms. Ruma Kaushik, Addl. A.G. for respondent No.5.
The central legal point established in the judgment is the acquisition of easementary rights by prescription over the disputed passage.
Headnote:
EASEMENTARY RIGHT - Property Dispute - Civil Procedure Code - [Section 80 CPC, Rup Chand vs. Daulatu AIR 1992 H.P. 6, Amar Singh vs. Kehar Singh AIR 1995 H.P. 82] - The court discussed the acquisition of easementary right by prescription over the 'maind' along side the Kuhal. The key legal provisions discussed were related to the evidence on record, the existence of the Kuhal, and the acquisition of easementary rights. The court's decision was influenced by the evidence presented and the interpretation of the law on easementary rights.
Fact of the Case:
The respondents filed a suit against the appellant claiming the acquisition of a right of passage by easement of prescription over the 'maind' along side the Kuhal. The appellant and other defendants contested the suit, denying the existence of the passage and the acquisition of easementary rights.
Finding of the Court:
The court found in favor of the respondents, decreeing the suit for the acquisition of easementary rights over the passage in dispute.
Issues: The issues included the existence of the passage, acquisition of easementary rights, the validity of a previous decree, the width of the Kuhal, and attempts to encroach upon the Kuhal.
Ratio Decidendi: The court found that the respondents had acquired easementary rights over the passage based on the evidence presented, including witness testimonies and written statements.
Final Decision: The appeal was dismissed, affirming the lower courts' decision in favor of the respondents.
Kuldip Singh , Judge
The defendant No.1 has come in appeal against judgment, decree dated 12.1.2001 passed by learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No. 12-D/XIII/97 affirming judgment, decree dated 30.11.1996 passed by the learned Senior Sub Judge, Kangra at Dharamshala in Civil Suit No. 11/91.
2. The facts, in brief, are that respondents No.1 to 3 had filed a suit against the appellant in which respondents No.4, 5 and 6 were impleaded as defendants No.2, 3 and 4 respectively. The suit was for declaration that respondents No.1 to 3 have acquired right of passage by easement of prescription over the ‘maind’ (edges) along side the Kuhal comprised in Khasra No. 247, Mohal Jhikli Barol, Mauza Khaniyara and Khasra Nos. 1733 and 1737 measuring 0-08-74 Hectares, Mohal Upperli Barol, Mauza Khaniyara vide jamabandi 1987-88. It was pleaded that respondents No.1 to 3 had right of passage for ingress and egress to their houses and fields situated on land comprised in Khasra Nos. 1823/1728, 1824/1728 Upperli Barol, Mauza Khaniyara.
3. The further case of respondents No.1 to 3 was that judgment and decree dated 16.11.1988 in Civil Suit No. 3 of 1988 are collusive, fraudulent and void and not binding on respondents No.1 to 3. Consequential relief of permanent injunction restraining the appellant and respondents No.4 to 6 from interfering in the easementary right of passage of respondents No.1 to 3 was also prayed. It was alleged that in case appellant and respondents No.4 to 6 succeeded in obstructing the land by raising construction, then a decree for mandatory injunction directing the appellant and respondents No.4 to 6 to remove the obstruction and to restore the suit land to its original position.
4. The appellant, respondents No.4, 5 and 6 contested the suit by filing separate written statements. In the written statement of appellant several preliminary objections have been taken including that the suit has been filed by respondents No.1 to 3 in collusion with respondent No.4. On merits, it has been denied that there is any path along side the Kuhal. The width of the Kuhal has been ordered to be corrected as per judgment, decree in Civil Suit No. 3 of 1988 decided on 16.11.1988 which is binding upon the respondents No.1 to 3. It has been denied that respondents No.1 to 3 were using the passage as claimed by them, there was no passage. The question of acquisition of easementary right did not arise. The houses along side the Kuhal have separate path and not through the edges of the Kuhal. The edges of the Kuhal can only be used for agriculture pursuits and not as a regular path.
5. The respondent No.4 has colluded with respondents No.1 to
3. The allegations of defrauding the Court were wrong. The learned Court in Civil Suit No. 3 of 1988 had taken into account all aspects and given a detailed judgment. The earlier decree was not collusive or fraudulent. The question of closing of passage did not arise as there was no passage.
6. The respondent No.4 in her written statement has taken preliminary objections of maintainability, cause of action, non-joinder of necessary parties, jurisdiction and valuation. On merits, it has been admitted that there was a Kuhal coming from Khaniyara via Upperli Barol to Lower Barol touching the main road. It has been denied that there was a passage of one metre width from road at Barol to Khaniyara. The alleged user of passage by respondents No.1 to 3 and their predecessors for the last 50 years has been denied. It has been denied that Civil Suit No. 3 of 1988 was collusive. The alleged threatened acts of respondent No.4 for raising construction were also denied.
7. The respondent No.5 in the written statement has taken preliminary objections of non-joinder of necessary parties, lack of cause of action, no notice under Section 80 CPC was served and valuation. On merits, it has been denied that there is a perennial Kuhal coming from Khaniyara via Upperli
