Back
1997 Supreme(P&H) 945
PUNJAB & HARYANA HIGH COURT
N.K.Kapoor, J.
Mehma Singh
Versus
Charan Singh
R.S.A. No. 2282 of 1981,
Decided On : MAY 30, 1997
A person who has been in adverse possession of an easement for more than 20 years is entitled to an injunction to protect his right of way.
Headnote:
ADVERSE POSSESSION - LIMITATION ACT, 1963 - SECTION 28 - EASEMENT - SECTION 26 - ADVERSE POSSESSION - EASEMENT - RIGHT OF WAY - OBSTRUCTION - INJUNCTION - EASEMENT ACT, 1882 - SECTION 15 - EASEMENT BY PRESCRIPTION - ADVERSE POSSESSION FOR MORE THAN 20 YEARS - RIGHT TO INJUNCTION - INJUNCTION GRANTED.
Fact of the Case:
Plaintiff filed a suit for mandatory injunction directing defendant No. 1 to demolish the wall built by him on land shown as ABCD in the site plan which forms part of Khasra Nos. 117 and 118 of Khewat No. 75/100 and 74/99 respectively in Mauza Kharar, Hadbast No. 185, Tehsil Kharar, Distt. Rupnagar. According to the plaintiff, he is exclusive owner of land bearing Khasra No. 117 (3 Marlas) and also owns another piece of land measuring 5 Marlas comprised in Khasra No. 118 jointly with his four sisters (now arrayed as defendants). According to the plaintiff, Mehma Singh owns some area adjoining to the plots bearing Khasia No. 117 and 118. In June, 1976 defendant No. 1 is stated to have raised a wall to a height of 6-1/4 feet upon the land forming part of Khasra Numbers 117 and 118 this way encroaches upon an area measuring 38 feet x 9 inches which belongs to the plaintiff. Hence, the present suit.
Finding of the Court:
The lower appellate court accepted the report of the Local Commissioner and held that the wall in dispute is 18 feet x 8 inches which has an height of 6-1/(4) feet and the same falls in line with the other existing structure of the plaintiff, namely, his house. Accordingly, the Local Commissioner submitted the report that the same forms part of Khasra No. 117.
Issues: 1. Whether the plaintiff, alongwith defendant Nos. 2-to 5, is the owner in possession of Khasra No. 117/118 ? 2. Whether the site ABCD on which the wall has been constructed by defendant No. 1 forms part of Khasra Nos. 117 and 118 ? 3. Whether the plaintiff is estopped by his acts and conduct to file the present suit as alleged in para No. 3 of the additional objections ? 4. Whether the plaintiff is entitled to the injunction as prayed for ?
Ratio Decidendi: The report of the Local Commissioner was accepted by the lower appellate court after threadbare examination and finding substance in the same. The site plan annexed with the plaint clearly shows that the wall ABCD is in line with the built up portion of Charan Singh. This coupled with the measurement of the adjoining plot/plots i.e. Khasra No. 119 and 120 go a long way in proving that the site in dispute forms part of Khasra No. 118 and so is the exclusive property of plaintiff and proforma defendants.
Final Decision: The appeal was dismissed with no order as to costs.
N.K.Kapoor, J.
1. This is defendants appeal against the judgment and decree of the lower appellate court whereby judgment and decree of the trial court has been modified thereby decreeing the suit of the plaintiff as prayed for.
2. Plaintiff filed a suit for mandator injunction directing defendant No. 1 to demolish the wall built by him on land shown as ABCD in the site plan which forms part of Khasra Nos. 117 and 118 of Khewat No. 75/100 and 74/99 respectively in Mauza Kharar, Hadbast No. 185, Tehsil Kharar, Distt. Rupnagar. According to the plaintiff, he is exclusive owner of land bearing Khasra No. 117 (3 Marlas) and also owns another piece of land measuring 5 Marlas comprised in Khasra No. 118 jointly with his four sisters (now arrayed as defendants). According to the plaintiff, Mehma Singh owns some area adjoining to the plots bearing Khasia No. 117 and 118. In June, 1976 defendant No. 1 is stated to have raised a wall to a height of 6-1/4 feet upon the land forming part of Khasra Numbers 117 and 118 this way encroaches upon an area measuring 38 feet x 9 inches which belongs to the plaintiff. Hence, the present suit.
Defendant No. 1 filed written statement and controverted the various allegations levelled in the plaint regarding encroachment alleged to have been made by the answering defendant. The plea of estoppel by conduct was also raised.
On the pleading of parties, following issues were framed: - (1) Whether the plaintiff, alongwith defendant Nos. 2-to 5, is the owner in possession of Khasra No. 117/118 ? OPP.
(2) Whether the site ABCD on which the wall has been constructed by defendant No. 1 forms part of Khasra Nos. 117 and 118 ? OPP.
(3) Whether the plaintiff is estopped by his acts and conduct to file the present suit as alleged in para No. 3 of the additional objections ? OPD.
(4) Whether the plaintiff is entitled to the injunction as prayed for ? OPP.
(5) Relief.
3. Under issue No. 1 the trial court held that the plaintiff is owner in possession of land bearing Khasra No. 117 and a joint owner of land along with defendants No. 2 to 5 in respect of Khasra No. 118. This issue was accordingly decided in favour of the plaintiff. Under issue No. 2, the trial court came to the conclusion that the plaintiff has not been able to establish conclusively that the site ABCD on which wall has been constructed entirely forms part of Khasra Nos. 117 and 118. The trial court thus held that as per material on record it can be taken that the site in dispute forms part of Khasra Nos. 117, 118 and 119. Under issue No. 4, the court held that the defendant has failed to prove that the plaintiff is estopped by his act and conduct to file the present suit. Under issue No. 3, the court held that since plaintiff has failed to prove that he along with defendants No. 2 to 5 are exclusive owners of the site falling underneath the wall in dispute, the plaintiff is not entitled to the mandatory injunction. Resultantly, the trial court held that the wall in dispute shall be jointly owned by the parties entitling them to the benefit of incidental to the joint ownership of the wall ABCD as given in the site plan Exhibit P1.
4. Feeling dissatisfied with the judgment and decree of the trial court, plaintiff preferred appeal and the contesting defendant too filed cross-objections. Both the matters were taken up together and decided vide judgment and decree dated 14.5.1981. The lower appellate court firstly examined the objections raised by the defendant. Exhaustively dealing with objections in the light of oral and documentry evidence on record, the lower appellate court found no substance in the same. On the other hand, the court while examining the case of the plaintiff came to the conclusion that the report of the Local Commissioner Exhibit P-4 merits acceptance in toto. Consequently, the court held that in view of the report of the Local Commissioner, the site in dispute under the wall measuring 38 feet x 9 inches is the property of th
