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2016 Supreme(HP) 2266
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CHANDER BHUSAN BAROWALIA, J.
Papinder Singh - Appellant
Versus
Gokal Chand (Now deceased) through his LR‘s and others - Respondents.
RSA No.53 of 2007
Decided on : 01-11-2016
Advocate Appeared:
For the Appellants :Mr. Bhupender Gupta, Sr. Advocate with Mr. Ajeet Jaswal, Advocate.
For the Respondent:Mr. G.D. Verma, Mr. Vipul Sharda, Advocate.
The judgment emphasized the importance of proving easementary rights and ownership in property disputes.
Headnote:
Easementary Rights - Property Dispute - Code of Civil Procedure - Section 100, Civil Suit No.303/1 of 2002 - Summary: The court discussed the plaintiff's claim of easementary rights over a disputed path and the defendants' ownership and possession of the same. The court upheld the findings that the plaintiff had no easementary right to use the disputed path, as it was owned and possessed by the defendants. The judgment also emphasized that the plaintiff failed to prove the illegality of the defendants' construction on their own land.
Fact of the Case:
The plaintiff claimed ownership of land and building and sought easementary rights over a disputed path. The trial court partly ruled in favor of the plaintiff, but the appellate court upheld the finding that the plaintiff had no easementary right to use the disputed path.
Finding of the Court:
The court found that the plaintiff had no easementary right to use the disputed path, as it was owned and possessed by the defendants. The court also noted that the plaintiff failed to prove the illegality of the defendants' construction on their own land.
Issues: The issues included ownership and possession of the property, existence of the building, and the plaintiff's right to use the disputed path as an easement.
Ratio Decidendi: The court's decision was based on the lack of evidence supporting the plaintiff's claim of easementary rights and the defendants' ownership and possession of the disputed path.
Final Decision: The appeal of the plaintiff was dismissed, and the parties were left to bear their own costs.
JUDGMENT :
Chander Bhusan Barowalia, J.
The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellant against the judgment and decree passed by learned Additional District Judge (Presiding Officer, Fast Track Court) Solan, District Solan, H.P, in Civil Appeal No.22FT/13 of 2006, dated 17.11.2006, vide which the learned Appellate Court has partly modified the judgment and decree passed by learned Civil Judge (Senior Division), Kasauli, District Solan, H.P, in Civil Suit No.303/1 of 2002, dated 20.6.2006.
2. Briefly stating facts giving rise to the present appeal are that appellant/plaintiff (hereinafter referred to as =the plaintiff') has succeeded to the original plaintiff Neelam, maintained a suit against the respondents/defendants (hereinafter referred to as =the defendant') claiming that plaintiff is owner-in-possession of land and building comprised in Khata/Khatauni No.19/40 and 41, Khasra Nos.853, 854, 855, Kitas 3, measuring 144.33 sq. meters, situated in mauza Dangyar, Tehsil Kasauli, District Solan, H.P (hereinafter referred to as =the suit land'). The alleged property was owned and possessed by Fakir Chand, who sold it to the plaintiff in the year 1985. It is alleged that the plaintiff is owner-in-possession of the same since 1979, but the sale deed was executed in the year 1985. The dispute is with regard to =gair mumkin gali' of defendant No.1 in Khasra No.850, which is in the shape of staircase of the plaintiff, which is being used by the plaintiff as approach to reach the ground floor of his building. So, the =gali' is claimed as path on the ground of easement of necessity as well as on the basis of easement by prescription. As per the defendants, the plaintiff purchased only two biswas of vacant land denoted as Khasra No.80/2/2/1 (6 karms x 6 karams) from Fakir Chand through sale deed No.186, dated 6.8.1985. The husband of the plaintiff, who is property dealer manipulated the things and instead of showing the measurement of two biswas, which is 84 square meters, shown 144 sq. meters of the land in her ownership and possession. The existence of building on the spot for the last more than 50 years is denied. It is further submitted that the plaintiff has constructed the building and the same has been renovated and the staircase from the first floor to the ground floor has been removed. The door and windows from the back side of the building have been closed and additional godown has been added in the back side of the building towards the vacant land. It is further alleged that defendant No.1 is owner-in-possession of said =gair mumkin gali' situated in Khasra No.850. Defendants constructed his building in the year 1971-72 and they had left the vacant space, as the set back which was duly fenced and possessed by the defendants and their family members. The plea of easementary rights through the =gali' by way of necessity is denied. Further submitted that the plaintiff does not reside in Parwanoo and settled in Mumbai with her family, her husband occasionally visits Parwanoo. As per the defendants, the plaintiff recently removed the staircase, which was on the back side of the first floor and is claming the =gali' on the basis of easement.
3. The learned trial Court framed following issues on 21.5.2003 :
?1. Whether the plaintiff is owner-in-possession of the property i.e. land and building, as alleged?
2. Whether the building and the suit property is existing for the last more than 50 years, as alleged? OPP
3. Whether the suit property was owned and possessed by Sh. Fakir Chand s/o Sh. Bhagi Ram, who had sold the same to the plaintiff in the year 1985, as alleged ? OPP
4. Whether in the year 1985 the plaintiff has renovated and reconstructed the building at the spot, as alleged? OPP
5. Whether the defendants are stranger to the suit property and have no concern with the suit property? OPP
6. Whether the disputed gali is the only path which leads to the ground floor of the b
