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2009 Supreme(HP) 1361
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Surjit Singh, J.
SWAROOP CHAND — Appellant
Vs.
DEVINDER KUMAR — Respondent
RSA No. 602 of 2000
Decided On : 19-11-2009
Advocate Appeared:
For the Appellant : Sunil Mohan Goel.
For the Respondent: Harish Behl.
The central legal point established in the judgment is the requirement for clear evidence and recorded passages to support claims of easementary rights, as well as the illegality of drawing adverse inference from a party's absence as a witness without considering valid reasons for such absence.
Headnote:
Easementary Rights - Property Dispute - [Transfer of Property Act, Section 8, Indian Evidence Act, Section 101] - The court analyzed the evidence and legal provisions related to easementary rights and property transfer under the Transfer of Property Act and Indian Evidence Act. The court highlighted the importance of recorded passages in the evidence and emphasized the need for clear averments and pleadings in claiming easementary rights. The court also considered the adverse inference drawn from the defendant's absence as a witness and the legality of such inference.
Fact of the Case:
The plaintiff filed a suit for injunction against the defendant, claiming easementary rights to pass through the defendant's land to access his own property. The trial court decreed in favor of the plaintiff, which was upheld by the first Appellate Court. The defendant appealed, raising substantial questions of law regarding the plaintiff's right to claim easementary rights and the interpretation of documentary evidence.
Finding of the Court:
The court found that the plaintiff's claimed passage through the defendant's land was not supported by the evidence, as there was no recorded passage over the defendant's land. The court also held that the adverse inference drawn from the defendant's absence as a witness was illegal. Consequently, the court set aside the judgments and decrees of the lower courts and dismissed the plaintiff's suit.
Issues: The issues revolved around the plaintiff's claimed easementary rights, the interpretation of documentary evidence, and the legality of drawing adverse inference from the defendant's absence as a witness.
Ratio Decidendi: The court's decision was based on the lack of recorded passage over the defendant's land, the misreading and misconstruing of evidence by the lower courts, and the illegality of drawing adverse inference from the defendant's absence as a witness.
Final Decision: The appeal was accepted, and the judgments and decrees of the lower courts were set aside. The plaintiff's suit was dismissed.
JUDGMENT :
Surjit Singh, J.
1. This Regular Second Appeal by the defendant is directed against the judgments and decrees of the two Courts below, whereby suit filed by respondent Devender Kumar, hereinafter referred to as plaintiff, has been decreed and appeal filed against the decree of the trial Court by appellant Swaroop Chand, hereinafter called defendant, has been dismissed, by the first Appellate Court.
2. Relevant facts may be noticed. Plaintiff Devender Kumar filed a suit for issuance of permanent prohibitory injunction restraining the defendant from obstructing, in any manner, the path leading to his house, standing on Khasra No. 246, through Khasra Nos. 233 and 244, situate in Mohal Khaliyar, Mandi Town. He also sought issuance of mandatory injunction directing the defendant to remove the obstruction already caused by him by raising a wall on a portion of the boundary of Khasra Nos. 244 and 233.
3. Cause of action, as pleaded by the plaintiff, was that his grandmother was owner in possession of Khasra Nos. 233, 244 and 246, aggregate area of which was 727.90 square metres. In the year 1972, vide deed Ext. PW1/B, she gifted Khasra No. 246, measuring 412.12 square metres to the plaintiff, together with all rights, including right of passage. Thereafter she transferred Khasra Nos. 233 and 244 in favour of defendant, who is the son of the grandmother of the plaintiff. Plaintiff claimed that from the very beginning he had been passing through land comprised in Khasra Nos. 233 and 244, along its southern boundary, for approaching the land comprised in Khasra No. 246. In the month of August, 1990, defendant raised a wall obstructing the said passage.
4. Defendant-appellant denied that the plaintiff had any right to use any portion of Khasra No. 244, as a passage, for approaching Khasra No. 246. It was stated that there was a road adjoining Khasra No. 246, belonging to the plaintiff and he had access to his property though that road. Some preliminary objections were also raised.
5. Trial Court concluded that though there was a motorable road adjoining Khasra No. 246, plaintiff had the right to pass through Khasra No. 244, in view of the evidence adduced by him, including the copies of entries in the record of-rights. Appeal filed by the defendant-appellant before the District Judge stands dismissed. Present appeal was admitted on the following substantial questions of law:
(1) Whether the learned Courts below have erred in decreeing the suit of the plaintiff and dismissing the appeal of the appellant-defendant in view of the fact that admittedly there is motorable way/path to the land of the plaintiff and the plaintiff having failed to make specific and clear averments/pleadings with regard to easementry rights being claimed by him.
(2) Whether the learned Appellate Court has erred in drawing adverse inference of the fact that the defendant did not enter the witness box.
(3) Whether the learned Courts below have misread and misconstrued the documentary evidence on record.
6. Learned trial Court has observed that the passage claimed by the plaintiff is entered in the record-of-rights. View taken by the learned trial Court is not correct. Copy of the jamabandi, pertaining to Khasra Nos. 233 and 244 is Ext. PW1/C. In this jamabandi, it is only Khasra No. 233, which is recorded as passage. Khasra No. 244, in its entirety, is shown to be a vacant piece of land and no portion of it is recorded as passage. Area of Khasra No. 233 is 18.40 square metres while that of Khasra No. 244 is 297.38 square metres. Also there is a copy of Aks Shajra Bandobast, Ext.PW3/A. This document shows that Khasra No. 233 is elongated in shape and lies parallel to Khasra No. 249, which admittedly belongs to the Government and is in the shape of a road. In between Khasra Nos. 233 and 246 there is Khasra No. 244. This Khasra No. 244 is with the defendant-appellant while Khasra No. 246 is owned and possessed by the plaintiff. Below both Khasra Nos. 244 and 246 there
