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2007 Supreme(UK) 341
2007 (2) U.D., 363
High Court of Uttarakhand
Hon'ble Prafulla C. Pant, J.
Hans Raj (since deceased) through L.R. - Plaintiff/Appellant
Vs.
Dewan Singh (since deceased) through L.Rs. and another- Defendants/Respondents
Second Appeal No. 551 of 2001,
Decided on : 18-06-2007.
Sri N.S. Negi, Advocate, for the plaintiff/appellant; Sri J.C. Belwal, Advocate for the respondents no. 1/1 to 1/8 and Sri Sudhir Kumar, Advocate for the respondent no. 2.
The central legal point established in the judgment is that mere user for 20 years does not confer easementary rights, especially if the property belongs to the Government.
Headnote:
EASEMENTARY RIGHT - Property Dispute - Indian Easement Act, 1882, Section 15 - The court discussed the acquisition of easementary rights and highlighted the legal principle that mere user for 20 years does not confer any easementary right by way of prescription to the plaintiff, especially if the property belongs to the Government. The court also emphasized the importance of pleading a case of right of easement by way of necessity.
Fact of the Case:
The plaintiff filed a suit for injunction against the defendant for encroaching upon a land and raising constructions without approval, obstructing the plaintiff's right towards the public road. The trial court found in favor of the defendant, and the lower appellate court affirmed the decision.
Finding of the Court:
The court found that the defendant had been granted a lease over the disputed land and raised constructions, and the plaintiff failed to establish easementary rights. The court also noted that the disputed land was not part of the public road and dismissed the appeal.
Issues: The issues included possession of the land, leasehold status, approval of site plan, easementary rights, interference with plaintiff's rights, completion of constructions, valuation of court fee, necessary party in the suit, relief for the plaintiff, and various procedural matters.
Ratio Decidendi: The court's decision was based on the finding of lease in favor of the defendant, lack of established easementary rights by the plaintiff, and the disputed land not being part of the public road.
Final Decision: The second appeal was dismissed, affirming the lower courts' decisions.
This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 07-08-1981, passed by learned Civil Judge, Nainital in Civil Appeal No. 17 of 1981, whereby the said appeal was dismissed and judgment and decree dated 10-02-1981, passed by IInd Additional Munsif, Haldwani, in Civil Suit No. 17 of 1978, dismissing the suit, is affirmed.
2. Heard learned counsel for the parties and perused the record.
3. Brief facts of the case are that plaintiffs (appellant) house is situated in Plot No. 168-Aand Plot No. 169 of Village Khatima, Pargana Bilari, Tehsil Khatima. It is pleaded in the plaint that Plot No. 164 falls between the house of the plaintiff and public road, which leads to Pilibhit. It is further pleaded that land of Plot No. 164 is KHANTI (KACHACHA land, adjoining the motor road). Plaintiffs case is that said land is being used by him for 20 years, without interruption, and doors of his house open towards said land. It is alleged that defendant no. 1 Dewan Singh encroached upon KHANTI Land over an area of 20' x 25' and raised the constructions, as such the plaintiff's right is obstructed towards the public road. It is alleged the defendant no. 1 Dewan Singh, raised constructions without getting map approved from the Municipal Board. With these pleas, plaintiff filed suit for injunction against the defendant no. 1 Dewan Singh for removal of construction and directing him not to interfere with the rights of the plaintiff.
4. Defendant Dewan Singh contested the suit before the trial court and filed his written statement, in which it is admitted that Plot No. 164 belongs to the State. However, it is pleaded on behalf of the said defendant that a lease was granted in favour of defendant no. 1 Dewan Singh, by the Government, and as such constructions raised by him are not liable to be removed from the land in dispute. Legal pleas are also raised in the written statement, whereby it is stated that suit is bad for non joinder of State. (State is latter on impleaded by the plaintiff as defendant no. 2). It is further pleaded by defendant no- 1 Dewan Singh that suit was under valued and court fee paid is insufficient. Defendant no. 2 State of Uttar Pradesh, who was impleaded in array of parties latter on also filed its written statement and supported the case of defendant no. 1 Dewan Singh.
5. On the basis of the pleadings of the parties, following issues are framed by the trial court :
(i) Whether the plaintiff had been in possession for more than 20 years on the land in suit?
(ii) Whether defendant is the lease holder of Plot No. 164 ?
(iii) Whether the site plan of the defendant had been sanctioned by the Municipal Board or P.W.9, if not, its effect?
(iv) Whether the plaintiff has any easementary right over Plot No. 164 ?
(v) Whether the doors of the house of plaintiff have been closed as a result of disputed constructions?
(vi) Whether the defendant has completed the construction at the disputed site?
(vii) Whether the suit is under valued and court fee paid is insufficient and whether the suit is beyond the pecuniary jurisdiction of the Court of Munsif?
(viii) Whether State of Uttar Pradesh is a necessary party in the suit?
(ix) To what relief, if any, is the plaintiff entitled?
(x) Whether the defendant no. 1 has raised constructions in the land, which is part of road?
(xi) Whether the suit is maintainable?
(xii) Whether the suit is defective on account of non-service of notices under Section 80 of C.PC., upon the State of Uttar Pradesh prior to the institution of suit?
(xiii) Whether the suit is barred by principles of estoppel and acquiescence?
6. The trial court after recording the evidence and hearing the parties found that there is a lease in favour of defendant no. 1 Dewan Singh, who has raised the disputed constructions over Plot No. 164. It is further found that the plaintiff was using a part of Plot No. 164, as RASTA land to reach the public road. However, no easementary
