Jasbir Singh and Others vs Bhagwan Singh and Others

N.K. Agrawal, J.—This is an appeal by plaintiffs-appellants against the judgment of District Judge, Hissar.

A civil suit for declaration was filed on 11.1.1971 by Jasbir Singh, Joginder Singh and Devinder Singh; minor sons of Subedar Major Mohinder

Singh, against the defendants, namely, Bhagwan Singh, Latwa, Chander Bhan and Ram Kumar (minor) sons of Khema; and Ganga Ram. The

plaintiffs'' case was that defendant No. 5, Ganga Ram, was owner of Rectangle Nos. 208 and 220 situate in village Bass Binja, Tehsil Hansi,

District Hissar. Ganga Ram sold land bearing ''Khasra'' Nos. 202/20/1 and 202/22/1 out of the said land to defendants Nos. 1 to 4. real brothers,

living jointly. After the aforesaid sale of land, the plaintiffs also wanted to purchase some other land from defendant No. 5. They, however,

obtained, for reaching their fields, a passage, 2 ''Karams'' in width, through the land of defendants Nos. 1 to 4 on payment of Rs. 250/- on

14.7.1968 under the agreement, Exhibit P-1. Defendant No. 1, Bhagwan Singh, signed the agreement as ''Karta'' of the joint family. Thereafter,

the plaintiffs purchased some other land from defendant No. 5, Ganga Ram, under sale deed dated 15.7.1968 (Exhibit P2). Vendor Ganga Ram

also gave passage through his land bearing ''Khasra'' No. 202/21/3. The plaintiffs continued to use the path, given by defendants Nos. 1 to 4, for

about two years and they, along with landowners of the adjoining land, constructed a ''Pulli'' on the outlet for better use and management of the

path. The defendants, later on, prevented the plaintiffs from using that path. The plaintiffs claimed, through their civil suit, that they were entitled to

use the passage by way of easement of necessity. Hence, the suit.

Defendants Nos. 1 to 4 pleaded, in their defence, that they had never agreed to give path to the plaintiffs through their land nor received Rs.

250/- from the plaintiffs. Execution of the agreement (Exhibit P-1) was also denied.

Defendant No. 5, Ganga Ram, in the written statement, admitted the case of the plaintiffs.

The plaintiffs examined their father, Mohinder Singh, vendor Ganga Ram Sethi and other witnesses, Sarpanch Maya Chand, Gaja Dhar and

Ram Dhari. Execution of the agreement (Exhibit P-1) was admitted by Bhagwan Singh, defendant No. 1, who had signed it though he alleged to

have signed it under threat from Ganga Ram to the effect that a civil suit for preemption may be filed against him if path was not given to the

plaintiffs. Dalip Singh, DW-1, scribe of agreement (Exhibit P-1), affirmed that he drafted the agreement at the instance of Ganga Ram Sethi.

The agreement in question was called to be invalid by the defendants on the ground that it was not registered. The trial Court, however, rejected

the plea for the reasons that it only granted right of passage to the plaintiffs by way of easement and it did not amount to transfer of ownership of

any immovable property. No existing right of easement was transferred but a new right of way was granted on the granter''s land and thus a new

easement was imposed on the defendants'' land. A right could even be created by a verbal agreement. Creation of right of easement by grant was

not a transfer of ownership u/s 54 of the Transfer of Property Act. The plaintiffs enjoyed the passage for two years but, later on, the defendants

changed their mind and blocked the passage. The plaintiffs had purchased the land from defendant No. 5, Ganga Ram, after first securing a

passage with the help of vendor Ganga Ram through the land of defendant Nos. 1 to 4 on payment of Rs. 250/-. Not only that, a ''Pulli'' (culvert)

was constructed over an outlet by the plaintiffs and landowners of the adjoining land for better enjoyment of the path. The plaintiffs contributed a

sum of Rs. 70/- towards its cost to defendant No. 1, Bhagwan Singh.

The learned Sub Judge, Hansi, by judgment and decree, dated 3.4.1972, held that the plaintiffs were entitled to use the passage. The suit was

thus decreed.

In appeal, the suit was, however, dismissed by the District Judge, Hissar, by judgment and decree dated 26.4.1977. The appellate Court

framed two additional issues as under :-

(i) Whether the agreement (Exhibit P-1) was executed by Bhagwan Singh as a ''Karta'' or as an agent of his brothers ? and

(ii) Whether the plaintiffs were entitled to a passage as an easement of necessity?

The matter was sent back by the learned District Judge to the learned Sub Judge for report. The learned Sub Judge answered both the aforesaid

issues in the negative, i.e., against the plaintiffs.

On a consideration of the controversy arising from the plaintiffs'' suit, it appears that defendants Nos. 1 to 4 denied that there was a joint Hindu

family and that defendant No. 1, Bhagwan Singh, was the ''Karta'' of that family. They explained that Khema, father of defendants Nos. 1 to 4,

was alive and, moreover, Latwa was the eldest brother amongst defendants Nos. 1 to 4. Thus, Bhagwan Singh had no right to enter into an

agreement regarding passage. They also denied the execution of any agreement as well as receipt of Rs. 250/- from the plaintiffs for providing the

passage. The case of the defendants was that Bhagwan Singh was required to enter into an agreement under misrepresentation and threat by

Ganga Ram to the effect that a civil suit for preemption might be filed against him. The agreement (Exhibit P-1) was scribed by Dalip Singh (DW1),

but it was not signed by witnesses in his presence and he had drafted the agreement at the instance of defendant No. 5, Ganga Ram. Dalip Singh

said in his statement that Bhagwan Singh was not present at the time when the agreement was scribed, though Khema was present there. Dalip

Singh further said that he had mentioned Killa Nos. 202/20 and 22 and not 202/20/1 or 202/22/1. The defendants also took the plea that Killa

numbers were subsequently changed by making interpolations in the agreement. Bhagwan Singh said in his evidence that he had put his signatures

on a blank paper. On a consideration of the evidence produced, by the plaintiffs before the trial Court, it appears that the genuineness of the

agreement (Exhibit P-1) was under cloud. The appellate Court was of the view that Bhagwan Singh had put his signatures on the agreement after

understanding it but he was not the ''Karta'' of the joint family because defendants Nos. 1 to 4, being Jats and governed by custom, were not

members of joint Hindu family. The learned District Judge reached the conclusion that, according to the customary law followed by Jats, last male

holder is the sole proprietor. The appellate Court also noticed that Bhagwan Singh lived separately and he could not constitute a joint family with

his brothers. Thus, Bhagwan Singh was found to be neither ''Karta'' of joint Hindu family nor an agent of his brothers at the time of execution of

agreement (Exhibit P-1). Neither Khema, father of defendants Nos. 1 to 4, nor Latwa, elder brother amongst defendants Nos. 1 to 4, put his

signature on the agreement. The learned District judge also agreed with the defendants'' contention that the agreement, being unregistered, was not

admissible in evidence as it created interest in an immovable property for a consideration of Rs. 250/- and gave easement by way of grant and it

should, therefore, have been registered. Bhagwan Singh, being a co-sharer of agricultural land, could not use it to the detriment of other co-sharers

and could not burden it with an encumbrance affecting their rights unless it was shown that burden was put on the land by him in the normal, natural

and business-like manner. Bhagwan Singh could also not create a burden on his share of land and he could not create a right of easement on any

specific part of the land. There was no easement of necessity against defendants Nos. 1 to 4. The plaintiffs, being vendees, could claim passage

from the vendor, Ganga Ram, on the basis of easement of necessity.

During the course of hearing of the present appeal, Shri C.R. Dahiya, Advocate, was appointed on 13.10.1997 as Local Commissioner for a

spot inspection and report. This order was made by this Court on the plaintiffs'' plea that they were using the path in dispute for the last 20 years

and this fact could be ascertained by deputing a Local Commissioner. The following observations of G.C. Garg, J., are relevant in his order dated

13.10.1997:-

When the matter was taken up on 9.10.1997, learned counsel for the respondents sought time to have instructions, whether the path in dispute is

being continuously used by the plaintiff-appellants for the last 20 years. Time to have instructions in that behalf was sought as learned counsel for

the appellants took a candid stand that the appellants are using the path in dispute for the last 20 years and this fact can be ascertained by deputing

a local commissioner and that, in case it is found from the report of the local commissioner that the path in question is not being used by the

plaintiff- appellants, the appeal may be dismissed without going into the merits of the same.

The Local Commissioner has not found any passage or path in existence on the spot in Killa Nos. 20/1 and 22/1. The following observations

made by the Local Commissioner in his report dated 5.11.1997 are relevant:-

In the presence of the parties and respectables of the village, I inspected Killa Nos. 20/1, 21/3 and 22/1 of Rectangle No. 202 of village Bass

Khurd Bijan and found that, in Killa No. 22/1, water was standing while the land comprising in Killa No. 22/3 was lying Banjar. In Killa No. 20/1,

paddy crop upto the height of 2/2 feet was standing in which water was also standing. I did not find any passage or path in existence on the spot in

Killa No. 20/1 and 22/1. However, the respectables of the village, who had gathered there, told the undersigned in the presence of the parties

(without being controverted by any of them) that there was an old Bhaichara passage running along the Dol of Killa No. 20/1 and then ran along

the Mor in Killa Numbers 20/1 and 22/1. The attendance receipt bearing the signatures/thumb-impression of the parties is attached.

In the result, there is no force in the plaintiffs'' appeal either on merits or on the Rasis of the factual report made by the Local Commissioner. The

learned District Judge has gone into all the aspects of the case and has recorded a finding on the basis of material on record. The report of the

Local Commissioner further negatives the plaintiffs'' case regarding use of the passage in dispute. The appeal is, therefore, dismissed with costs.