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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Shri Roshan Lal (Deceased) Through Legal Representatives. - Appellant
Vs.
Smt. Rama Devi W/o Late Sh. Tilak Raj - Respondent
Regular Second Appeal No. 402 Of 2008
Decided On : 18-10-2022
Code of Civil Procedure, 1908 - Order 7 Rule 3 and Section 96 - Indian Easements Act, 1882 - Section 2(b) and 18 - Land - Demolition of Construction – Right on common Passage - Decree for fixation of boundary by way of demarcation with a consequential relief of permanent prohibitory injunction - Customary right referred to in S. 2(b) of the Act is distinguishable from the customary easement as defined in Section 18 of the Act. The customary rights arise from customs but need not be appurtenant to the dominant tenement - No fix period of enjoyment is necessary to establish customary rights, but the custom must be proved to be reasonable and certain. On the other hand, for proving customary easement the appurtenant to the dominant tenement is sine quo non - It has to be pleaded and proved like any other easement. [Para 14,15]
Finding of the Court: While cross-examining one of defendants as DW-1, it was suggested on behalf of plaintiff that common passage touched Khasra and from there onwards plaintiff had a passage to her house through Khasra - Such suggestion was denied by DW-1 -However, it can be inferred from such suggestion that plaintiff claimed a passage through Khasra to approach her house from a common passage - Such stand of plaintiff firstly is not her pleaded case and secondly same even contradicts contents of Ext. PW5/A as no such link between common passage and house of plaintiff is described therein by way of passage through Khasra - Learned Lower Appellate Court decided appeal on premise that plaintiff had claimed right of passage through Khasra as customary and prescriptive - Learned Lower Appellate Court has clearly erred in drawing such an inference which was not borne from record.
Result: Appeal disposed of.
JUDGMENT :
By way of instant Regular Second Appeal, appellants have assailed the judgment and decree dated 17.06.2008, passed by learned District Judge, Hamirpur in Civil Appeal No. 50 of 2005, whereby the judgment and decree dated 01.04.2005, passed by learned Civil Judge (Junior Division), Barsar, District Hamirpur, H.P. in Civil Suit No. 63 of 1999, has been reversed.
2. Parties hereafter shall be referred by the same status as they held before learned Trial Court. Respondent herein was the plaintiff and appellants herein were the defendants before the learned Trial Court.
3. Plaintiff filed a suit against defendants for following reliefs: -
“It is, therefore, prayed that a decree for fixation of boundary by way of demarcation with a consequential relief of permanent prohibitory injunction restraining the defendants from raising any sort of construction over the suit land comprised in Khata No. 40 min, Khatauni no. 42, min, Khasra No. 215 area 1k-13M and Khata No. 41, Khatauni No. 43, Khasra No. 218 area 1 Kanal as per jamabandi 1996-97, situated in Tika Bhota, Tappa Paplu, Tehsil Barsar, District Hamipur, H.P. or blocking the passage of plaintiff to her house or to create any nuisance in the passage on the said land and interference in any manner whatsoever over the suit land and in case the defendants succeed in raising any construction over the suit land or construction of wall in such manner which create nuisance to the plaintiff for the use of her house or the passage then decree for mandatory inunction directing the defendants to restore the suit land to its original shape by way of demolition of such construction be passed in favour of the plaintiff and against the defendants within cost.”
4. Plaintiff is co-owner of house and land comprised in Khasra No. 218 and exclusive owner of house and land comprised in Khasra No. 215, situate at Tika Bhota, Tappa Paplu, Tehsil Barsar, District Hamirpur, H.P. Defendants are owners of Khasra No. 219 in the same revenue village. Plaintiff filed the suit on the premise that defendants were interfering in Khasra Nos. 218 and 215. Plaintiff also asserted her right of passage through Khasra No. 219 and alleged that defendants had threatened to obstruct said passage.
5. Defendants denied existence of any passage through Khasra No. 219. Interference in Khasra Nos. 218 and 215 was also specifically denied.
6. On the basis of pleadings of the parties, learned Trial Court framed the following issues:-
1. Whether the plaintiff is the owner in possession of the suit land? …..OPP
2. Whether the plaintiff is entitled to a decree for fixation of boundaries by way of demarcation of the suit and as alleged? ……OPP
3. Whether the plaintiff is entitled to the prohibitory injunction, as prayed for? …….OPP
4. Whether the plaintiff is entitled to the mandatory injunction as claimed? ……OPD
5. Whether there exits a path s alleged, if so, its effect? …….OPD
6.Whether the suit is not maintainable in the present form? ……..OPD
7. Whether the plaintiff has a cause of action? ……..OPD
8. Whether the plaintiff is estopped from filing the suit by her act and conduct? ………OPD
9. Whether the suit bad for non-joinder and mis-joinder of the necessary ……….OPD
10. Whether the suit had not been properly valued for the purpose of court fee and jurisdiction? ……….OPD
11. Whether this court has no jurisdiction to hear and decide the present suit? ……….OPD
12. Relief.
7. Issue Nos. 1 and 6 were decided in affirmative and all other issues were decided in negative. The suit of the plaintiff was accordingly dismissed. Learned Trial Court held that there was non-compliance of provisions of Order 7 Rule 3 of the Code of Civil Procedure. Plaintiff had failed to identify the passage alleged to be existing in Khasra No. 219.
8. Plaintiff assailed the judgment and decree passed by learned Trial Court in first appeal under Section 96 of the Code of Civil Procedure. In first appeal, learned Lower Appellate Court reversed the findings returned by learned Tr
SupremeToday
Customary easement is defined in Section 18 of the Act as an easement may be acquired in virtue of a local custom - Such easements are called customary easements.
The judgment emphasizes the importance of proper and mature appreciation of evidence in property disputes and the requirement for plaintiffs to prove their claims.
Long-term use of a passage can establish prescriptive easement rights, overriding claims of exclusive ownership if not substantiated.
The plaintiff must prove the existence of a path through the defendant's land to claim permanent prohibitory injunction. The suit must be framed as per the requirement of Order 7 Rule 3 CPC.
Easement of necessity cannot be based upon a non-existing alternative path.
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