Piara Singh vs Telu Ram (Dead)

N.K. Kapoor, J.—This is unsuccessful plaintiffs regular second appeal against the judgment and decree of Additional District Judge dated 2.11.1978 affirming the judgment and decree of the trial Court.

Plaintiff filed suit for permanent injunction restraining the defendants from causing any obstruction in the user by the plaintiff over rasta gali marked ADBC shown red in the site plan by constructing a wall along with the line AD or anywhere in the said rasta gali or in any manner whatsoever. It is the case of the plaintiff that street ADBC is a common passage and he has been using the same for the last about 40 years and that the defendants have no right to block the same. Otherwise too, he has acquired a right of his easement.

Pursuant to the notice issued by the Court defendants put in appearance. Defendant No. 2 admitted the claim of the plaintiff. Defendant No. 1 contested the suit and has controverted the allegations made in the plaint. By way of preliminary objections, it has been stated that site plan put in by the plaintiff is not correct, that Ram Jati, a brother of the plaintiff and Karnail Singh, nephew of the plaintiff are co-sharers with the plaintiff and so are necessary and proper parties. On merit, it has been pleaded that the gate of the plaintiffs house is towards the north. It is with a view to claim the property of defendant No. 1 that the plaintiff has opened a door towards east. According to the defendant there had been a mutual partition between the parties and as per the same Telu Ram, defendant No. 1 was given the eastern portion and the plaintiff and his co-sharer were given the western portion and Mansa Ram defendant was given a separate plot at a different place. It is only about 4/5 years back that plaintiff and his co-sharers constructed their houses and left 1 ft. by the side along with their eastern wall for the outlet of the water of the house and for light and air of the house. It was denied that the defendants are threatening the plaintiff to construct a pacca wall along with the wall of the plaintiff and his co-sharer. It has further been stated that plaintiff has recently opened a door in the eastern side. It has been asserted the plaintiff has no right to pass by the side of defendant No. 1 and that there is no gali on the eastern side of the plaintiffs house. On the pleadings of the parties, following issues were framed:-

Whether Ram Jati and Kanwal Singh are co-sharers of the plaintiff in the house shown in the site plan and they are necessary and proper parties to this suit? OPD.

Whether this suit is collusive with Mansa Ram defendant No. 2 ? OPD.

Whether there is a rasta gali on the eastern side of the house of the plaintiff as alleged ? OPD.

Whether the plaintiff has acquired a right of easement of passage as alleged? OPP.

Whether the suit is within time ? OPP.

Whether the plaintiff is entitled to the injunction prayed for? OPP.

Relief.

Issues No. 1 and 5 were not pressed before the trial Court and were given up. Under issue No. 2, it was held that suit appears to be collusive. Under issues No. 3 and 4 it was held by the trial Court that there is no rasta gali on the eastern side of the house of plaintiff as alleged and further that the plaintiff has not acquired any right of easement of passage. Thus, both these issues were decided against the plaintiff and in favour of the defendant No. 1. Under issue No. 6 and 7 it was held by the Court that in view of its decision under issues No. 3 and 4 the suit of plaintiff stands dismissed making it clear that there is no passage as alleged by the plaintiff but the contested defendants want to give one and a half feet land from point D towards C and point A towards B, so as to cover 24ft. width of the side of the plaintiff.

Appellate Court once again examined the mater on facts as well as on law but found no ground to interfere with the findings of the trial Court. Accordingly the appeal was dismissed on 22.11.1978.

Almost identical pleas have been raised by the learned counsel for the appellant, which did not find favour with the Courts below. Crux of the dispute pertains to the conclusion of the Courts below with respect to issue Nos. 3 and 4. The trial Court on the basis of evidence has come to a firm conclusion that the appellant has not acquired right of easement of passage and that there is no rasta gali on the eastern side of the house of the plaintiff. Submission so made by the learned counsel for the appellant is based on the oral deposition of the witnesses that earlier to the construction of the house there existed some old construction, which was demolished before raising the new construction and that old construction remained in existence for the last 40 to 50 years. This way the Courts erred in ignoring this aspect of the matter on the basis of which the appellant set up his right of easement. I find no substance in this plea of the appellant. Both the Courts on appreciation of the evidence have come to the conclusion that the plaintiff raised the construction about 4/5 years prior to the filing of the present suit and obviously for this reason his claim that he has acquired a right of easement was rightly discarded.

The next contention of the learned counsel for the appellant that there exists a rasta gali on the eastern side of the house of plaintiff is also without any substance. As has come on record, the plaintiff in fact left about a feet in width land towards eastern side of his house to be used as a drain which fact has also been admitted by the contesting respondent. There is no proof on record that the remaining vacant area had ever been used as a gali as has now alleged by the plaintiff appellant. In fact, the trial Court relied upon the report of the Local Commission who visited this spot on 5.2.1976. Findings of facts recorded by the Courts below are not vitiated in any manner. Resultantly, the appeal is devoid of any merit and the same is consequently dismissed.