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2009 Supreme(UK) 140
2011 (2) UC 337
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Prafulla C. Pant, J.
Nanhey Singh (since deceased) -Appellants
Versus
Parshadi (since deceased) - Respondents
Second Appeal No. 1526 of 2001
(Old No. 115 of 1989)
Decided On: March 31, 2009
Mr. Gopal Krishna and Mr. G.C. Lakhchaura, Advocates
for the defendant / appellants.
Mr. Deep Chandra Joshi, Advocate for the plaintiff / respondents.
The judgment establishes the importance of historical agreements and evidence in determining rights to use disputed land and the limitations of easementary rights.
Headnote:
EASEMENTARY RIGHTS - Disputed Land - Code of Civil Procedure, 1908, Section 100 - Agreement of 1985 - U.P. Re-organization Act, 2000, Section 35
Fact of the Case:
The plaintiff claimed the right to use a common passage leading to a public road, which was obstructed by the defendants. The trial court decreed the suit in favor of the plaintiff, which was upheld by the first appellate court.
Finding of the Court:
The court found that the plaintiff had the right to use the disputed land as a common passage and that the defendants had no easementary right to obstruct the plaintiff's pathway.
Issues: Dispute over the nature of the disputed land, easementary rights of the defendants, and relief for the plaintiff.
Ratio Decidendi: The court upheld the plaintiff's right to use the disputed land as a common passage based on an agreement from 1969 and rejected the defendants' claim of easementary rights.
Final Decision: The appeal was dismissed, upholding the lower courts' decisions in favor of the plaintiff.
1. This second appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 18.10.1988, passed by lower appellate court (Special Judge / Addl. District Judge, Nainital), in Civil Appeal No. 67 of 1986, whereby said appeal is dismissed upholding the decree passed by the trial court, in favour of the plaintiff.
2. Heard learned counsel for the parties and perused of lower court record.
3. Brief facts of the case, giving rise to this appeal are that the plaintiff / respondent Punia has pleaded that the plaintiff and the defendant have a common passage of their houses which leads to a public road in Mohalla Ganj, Kashipur. It is further pleaded by the plaintiff / respondent that the defendants have no right to obstruct the plaintiff to use the pathway shown by red arrows in the plaint map. The plaintiff’s case is that there had been dispute over this land earlier also between the parties in the year 1969, and after intervention of responsible persons the parties to this suit entered into an agreement, wherein the plaintiff’s right to use the disputed path way was recognized. However, the defendants with malafide intentions started tethering their cattle on the passage and raised a toilet and, as such, they have started obstructing the use of the rasta land by the plaintiff. As such, relief for prohibitory injunction directing the defendants not to interfere in the rasta land was sought.
4. The defendants contested the suit instituted by the plaintiff and filed their written statement denying the allegations made in the plaint. However, it is admitted that in the year 1969, when the dispute arose between the parties they entered into a compromise. As to the tethering of the cattle, it is pleaded by the defendants that they are using the disputed portion of the land for that purpose for more than 40 years and, as such, have matured their easementary rights over the disputed land.
5. On the basis of the pleadings of the parties, the trial court framed following three issues:
1. Whether, the disputed land is a public path way, or a private path way?
2. Whether, the defendants were using the disputed rasta land since 1945, and had they got an easementary right to that effect. If so, its effect?
3. To what relief, if any, the plaintiff is entitled?
6. The trial court after recording the evidence and hearing the parties, decided all the three issues in favour of the plaintiff, and decreed the suit directing the defendants not to obstruct the use of disputed rasta land by the plaintiff, by tethering their cattle or in any other manner. Aggrieved by said judgment and decree dated 21.10.1986, passed by the trial court (Munsif, Kashipur), in Suit No. 180 of 1985, the defendants filed Civil Appeal No. 67 of 1986 before the first appellate court. The first appellate court, after hearing the parties, concurred with the findings of the trial court, and dismissed the appeal. Hence, this second appeal filed by the defendants before the Allahabad High Court, where it was admitted on 09.01.1989. Though, no substantial questions of law were formulated by the Allahabad High Court, but at the time of admission it is observed that the appeal was admitted on the suggested substantial questions No. (i), (ii) and (iv) as mentioned in the memorandum of appeal, which reads as under:
A. Whether, the impugned judgment and decree passed by the courts below decreeing the suit for permanent injunction is wholly illegal, and no right has accrued to the plaintiff / respondent to claim permanent injunction?
B. Whether, the plaintiff / respondent have failed to prove common passage so as to claim any injunction against the rightful owner of the private rasta?
C. Whether, the agreement of 1985 has any relevancy with regards to the easementary rights of the appellants for the use of land for the last 40 years, and
