Aditya Kumar Bhanot vs Savita Devi and Others

Bhawani Singh, J.—This regular second appeal arises out of the decision of District Judge, Chamba, in Civil Appeal No. 54 of 1988, decided on 28-10-1988. By this decision, the first appellate Court has declined to interfere with the decision of Sub-Judge, III Class, Chamba, ia Civil Suit No 29/88, decided on 26-3-1988.

Shortly stated, the plaintiffs filed suit for permanent, prohibitory and mandatory injunction seeking relief that defendant No. 1 had blocked their and proforma-defendants passage and drainage etc., comprised in Khasra No. 1241/663/4, present Khasra No. 1241/663/2, South terrace of Khasra No. 1583/1241 and old Khasra No. 1241/663/2, present Khasra No 1241/663 on raised terrace amid land measuring 10 X 1 Karam and old Khasra No. 1482/1241/2, present Khasra numbers 1587/1482 on the West terrace and old Khasra No. 1241/663/2 and present Khasra No. 1241/663 of East Terrace, land measuring 12 � 1 Karam. It is also stated that defendant No. 3 sold his land to the plaintiffs and at the time of sale, granted the right of passage in their favour and proforma Defendant No. 2. The suit seeks to restrain defendant Aditya Kumar Bhanot from raising any obstruction to the passage claimed as easement of necessity on account of the non-availability of alternative path. Demolition of obstructions caused on the passage and the drainage has also been sought.

The defendant has opposed the relief�s sought by the plaintiffs though it has been admitted that the plaintiffs purchased the land from Nidhia (Defendant No. 3) but it has been denied that any kind of passage has been provided to the plaintiffs through the land in question. It is also the case of this defendant that he purchased five biswas of land from the third defendant alongwith passage which crosses Chamba Bharmour Road but he is in possession of the land less than what had been purchased by him. Allegations relating to the obstruction of path and drainage have been denied like the easement of necessity pleaded by the plaintiffs.

The trial Court has framed the following issues, on the pleadings of the parties:

Whether plaintiffs and proforma Defendants 2 to 4 have a right of passage and drainage over the land in dispute, as alleged in para No. 2 of the plaint? OPP.

If issue No. 1 is proved, whether plaintiffs are entitled to the relief of injunction, as prayed for? OPP.

Relief.

The trial Court decided these issues in favour of the plaintiffs and against the defendant and decreed the suit. Before the first appellate Court, it was the case of the defendant that no right of passage existed since it was never given to the plaintiffs by defendant No 3 and there was no legal obligation on the part of the defendant to provide the same. Claim of easement of necessity by the plaintiffs was also assailed, However, the appellate Court declined to interfere with the matter and up held the findings recorded by the trial Court.

Shri Bhupinder Gupta contended that the plaintiffs have not raised the plea of easement of necessity in the plaint and, therefore, this kind of relief could not have been extended by the Courts below. This contention has been seriously disputed by Miss Bandana Lakhanpal, learned Counsel for the plaintiffs, and it was stated by her that specific plea has been raised in para 10 of the plaint. Perusal of this para negatives the plea raised by Shri Bhupinder Gupta, so the plea raised is not teaeable. It was then contended by him that no issue has been framed by the trial Court on this aspect of the claim and there is no proper adjudication of the matter. This submission has no substance for the reason that the defendant has not been prejudiced on account of non-framing of the issue on this aspect. As noticed, this plea taken in para 10 of the plaint has been duly taken note of by the defendant in his reply in para 9 on page 117 of the concerned file where it has been stated that the passage did not come within the claim of easement of necessity. It is well settled that where the parties are well aware about each Ors. claim, lead evidence make submissions during arguments without asking for framing of a particular issue, failure to frame an issue, in such circumstances, does not vitiate the decision. In the present case, parties know each Ors. case and have led evidence to the possible extent, failure to frame an issue has not, therefore, prejudiced any of them Moreover, this objection is being taken for the first time in this Court. This objection is, therefore, of no substance and is rejected.

The next contention of Shri Bhupinder Gupta was that the sale-deed (ExPW 11/A) does not make mention of this passage to be used by the plaintiffs. Therefore, mutation No. 763 (Ex. P-3) and the Tatima describing this passage is a mere fabrication and, therefore, inconsequential. Miss Bandana Lakhanpal drew my attention to the sale-deed (Ex. PW 11/A), statements of C.M. Kaushal (PW 11), Nidhai Ram (PW 3), H.M Sharma, Junior Engineer (PW 4), Sant Ram (PW 8) and Gaghu Ram (PW 10). Patwari, to support the submission that this passage actually exists on the spot and has been allowed to be used by the seller in the sale-deed (Ex. P-3) and, therefore, rightly described in the mutation order and the Tatima on the file Report of Tehsildar (Ex. PW 3/A) has been assailed on the ground that the measurement conducted was ex parte since they had not been associated when the spot was inspected by him. These submissions have been examined with reference to the record of this case. Use of passage by the plaintiffs and Ors. has been protected in the sale-deed (Ex P-3). It has been correctly recorded in mutation No. 763 and in the Tatima placed on the file. Plaintiff�s witnesses have also supported this claim. In these circumstances, no reliance can be placed on the contrary evidence of the defendant including the report of Tehsildar (Ex. PW 3/A) since the plaintiffs were not associated at the time when the measurement was undertaken by him. The absence of the plaintiffs has been supported by the defendant (DW 1) and T.R. Negi (DW 3) also. This plea raised by Shri Bhupinder Gupta is, therefore, rejected.

It was next urged that easement of necessity cannot be claimed by the plaintiffs since they have an alternative passage to enjoy his property. There has to be an absolute necessity before a claim of easement of necessity can be claimed and allowed. In support of this plea, reliance was placed on decisions like Pedda Seetharamappa and Others Vs. Pedda Appaiah, AIR 1980 Guj 146. State of Guj. v. Hiralal Motilal Luhar 1988 (2) CCC 137 AIR 1937 179 (Nagpur) Ahmad Ali Fakruddin Bohra v. Dhondba Dasrath Kalar and 1969 Cur LJ Ladha Singh v. Kanhaya Lal. I made serious efforts to find out whether these decisions could help the defendant in support of the plea raised. However, I find that none of these decisions are relevant in view of the peculiar facts of this case It has been clearly demonstrated by the plaintiffs that the passage in question had been given to them at the time of sale There is no evidence wherefrom it can be seen that there is alternative passage available to the plaintiffs to enjoy the property. Had there been any, the seller would not have protected it through the sale-deed. Obviously, it can be said that it is a case of absolute necessity to the plaintiffs to use this passage by way of easement, as claimed by tbem and already held by two courts below which recorded concurrent findings on this aspect.

The last contention of Shri Bhupinder Gupta was that the trial Judge has been influenced unduly by his own spot inspection and the matter has not been decided on the evidence given by the parties and their witnesses to the case. I have examined this contention also but I see no sub-stance in it. Perusal of the trial Court judgment discloses quite clearly that the trial Judge has discussed the evidence and came to a definite view on the claims made by the parties and it was thereafter that he appreciated it by his own assessment gathered by visiting the spot. There is no illegality in this kind of procedure adopted by the trial Court in this case This plea has no substance and, therefore, is rejected. No other point was argued by the Counsel for the parties.

The conclusion that emerges out of the aforesaid discussion is that there is no merit in this appeal and the same is, therefore, dismissed. The parties are, however, left to bear their own costs.