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2014 Supreme(HP) 484
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
R.S.A. No. 324 of 2002. Judgment reserved on: 24.4.2014 Date of decision: 30.4.2014.
Satya Bala and another Versus Onkar Chand
For the Respondent:Mr. Bhuvnesh Sharma andMr. Ramakant Sharma, Advocates.
The main legal point established in the judgment is the interpretation and application of the provisions of Order 2 Rule 2 CPC and the Easement Act in determining the maintainability of the suit and the scope of the plaintiff's easementary right.
Headnote:
EASEMENTARY RIGHT - Property Dispute - Order 2 Rule 2 CPC, Order 23 Rule 3 CPC, Easement Act - The court held that the suit was maintainable and not hit by provisions of Order 2 Rule 2 of the Code of Civil Procedure. The court also found that the provisions of Order 23 of the Code of Civil Procedure were not attracted to the present case. The court further decreed the suit of the plaintiff by declaring that the plaintiff had a right of way through the defendant's land by easement of necessity, limited to agricultural purposes.
Fact of the Case:
The plaintiff claimed ownership and possession of a piece of land and an easementary right of passage through the defendant's land. The defendants contested the suit on various grounds including estoppel and want of cause of action.
Finding of the Court:
The court found the suit maintainable and decreed in favor of the plaintiff, granting a right of way through the defendant's land for agricultural purposes.
Issues: The issues included the maintainability of the suit, the plaintiff's right of passage through the defendant's land, and the width and purpose of the alleged path.
Ratio Decidendi: The court held that the suit was maintainable and decreed in favor of the plaintiff based on the provisions of Order 2 Rule 2 CPC and the Easement Act, limiting the use of the path to agricultural purposes.
Final Decision: The court partly allowed the appeal, modifying the judgment and decree of the lower appellate court to limit the usage of the path by the plaintiff strictly for agricultural purposes.
Tarlok Singh Chauhan, J. The defendants are the appellants before this Court who have preferred appeal against the judgment and decree dated 21.6.2002 passed by learned Addl. District Judge, Hamirpur in Civil Appeal No.90/95 who not only reversed the judgment and decree dated 31 .5.1995 passed by the learned trial Court but also dismissed the cross-appeal.
2. The facts as necessary may be stated thus; the plaintiff/respondent claimed himself to be owner in possession of land comprised in khata No.230/1, khasra No.854, measuring 1 kanal 9 marlas, as per copy of Register Karbai, situated in Tika Hatli, Mauza Galore, Tehsil Nadaun, District Hamirpur, H.P. (to be called hereinafter as suit land). The defendants were owners of Khasra No.853. Both these Khasra numbers were previously part of Khasra No.1564/738 old. Khasra No.853 is on the main road and there is a path through khasra No.853 to khasra No.854. This path has been in use of the plaintiff from the time of his ancestors and therefore, he has easementary right of passage through khasra No.853 for the last more than 100 years.
3.It was averred that previously khasra No.1564./738 was measuring 1 kanal 17 marlas out of which 8 marlas of land was sold by the predecessor-in-interest of the plaintiff to defendant No.1 and one Smt. Bimla Devi while the remaining 1 kanal 9 marlas of land transferred to the plaintiff. The plaintiff and his predecessor-in interest were using the path from the road to the suit land through khasra No.853, from time immemorial. This path was alleged to be necessary for egress and ingress to the suit land for its enjoyment and there was no other alternate path to the suit land and this path has been shown in red colour having width of seven feet in the site plan attached with the plaint. This path was also claimed by the plaintiff as easement of necessity.
4.It was averred that the defendants have collected the material for the purpose of raising construction over the land comprised in khasra No,853 and have openly threatened the plaintiff to block the passage leading to the suit land. The defendants were requested not to block the path to the suit land but of no avail, hence this suit.
5.The suit was contested by the defendants on the grounds of estoppel and want of cause of action. Maintainability of the suit has also been disputed by the defendants on the ground that the plaintiff had filed suit No.234-I of 1989 titled as Onkar Chand versus Satya Bala etc. on the same cause of action and therefore, this suit was liable to be dismissed. According to the defendants the plaintiff cannot take benefit of his own wrong because the area of the suit land is 1 kanal 9 marlas but it was found 4 to 5 marlas less on demarcation. It was averred that the plaintiff intentionally and deliberately does not want the correct area of land to be measured because a path exists to the suit land from its Western side.
6.It was further averred that with respect to the raising of construction over the land comprised in khasra No.853 they raised construction of double storey structure over a portion of khasra No.853 in 1982-83 without any objection from the predecessor-ininterest of the plaintiff and when in the year 1989 they further started raising construction, the plaintiff obstructed them and filed a civil suit No.234-I of 1989. The defendants denied the existence of any path in khasra No.853. According to the defendants no path was ever used by the plaintiff through khasra No.853 and the plaintiff is trying to obtain benefit from the wrong measurement of the suit land and had made a false claim of easement of necessity. The defendants denied the claim of the plaintiff in respect to the easement by prescription or by necessity.
7.The plaintiff filed replication and controverted the pleas of the defendants made in the written statement and reasserted the pleas taken in the plaint.
8.On the pleadings of the parties, the learned trial Court on 18.4.1990 and 23.2.19
