Roshan Lal vs Dharam Pal and Another

Rakesh Kumar Garg, J.—This is defendant''s appeal, challenging the judgments and decrees of the Courts below, whereby suit of the plaintiff-respondent has been decreed and the appellant has been restrained from interfering in the peaceful possession of the respondent-plaintiff over the suit property. The appellant has been further restrained from making any passage through the suit property. Respondent No. 1-Dharam Pal filed a suit against the appellant as well as respondent No. 2, claiming that he is owner in possession of the disputed plot, as detailed in the site plan attached with the plaint which is part of Khewat No. 316, Khatauni No. 386, rectangle No. 25 and Killa No. 1, measuring 6 Kanals and 0 Marla. It is his further case that the plaintiff has purchased the same from one Ram Kishan vide registered sale deed dated 6.1.1997 and has become co-sharer in possession to the extent of 12/120th share in the said killa number. He has constructed a boundary wall on the aforesaid plot. The defendants have no right, title or interest in the aforesaid disputed property, however, they were threatening to demolish the boundary wall and carve out a passage through the plot by force. Hence, necessity arose to file the instant suit.

Respondent No. 2-Gram Panchayat filed written statement, denying the averments made in the plaint. It was alleged that the Gram Panchayat was the owner in possession of the land comprised in khewat No. 108/2/1 and the appellant encroached upon the said khasra numbers illegally and application for ejectment is pending against him. It was further asserted that the property in dispute belonged to the Gram Panchayat.

Appellant filed a separate written statement, pleading that the disputed plot is a rasta and vested in the Gram Panchayat and the plaintiff has encroached upon the same under the garb of the instant suit. It was further his case that the said rasta which is 15 feet wide has been metalled by the Gram Panchayat and the appellant has right to use the passage for ingress and egress to his house. All other averments were denied.

From the pleadings of the parties, following issues were framed:-

Whether the plaintiff is owner in possession of suit property? OPP.

Whether the plaintiff is entitled for decree of permanent injunction? OPP

Whether the suit property is a rasta and the same vests in the Gram Panchayat? OPD

Whether the suit is not maintainable in the present form? OPD

Whether the civil court has got no jurisdiction to try the present suit? OPD.

Relief.

Parties led evidence to support of their respective case. After hearing learned counsel for the parties, the trial Court decreed the suit, holding that the plaintiff-respondent No. 1 was the owner of the suit property and the said disputed property was not rasta. The Gram Panchayat-respondent No. 2 did not challenge the aforesaid judgment and decree of the Trial Court, however, the appellant filed an appeal against the aforesaid order, which was also dismissed by the lower Appellate Court. The observations made by the first appellate Court read thus:-

After having heard learned counsel for the parties, I have come to the conclusion that jamabandi Ex. P7 pertaining to the year 1997-98 pertains to khewat no. 316 khatoni no. 386 khasra no. 25//1 measuring 6 kanals. This jamabandi clearly shows that 25//1 has no sub area which is being used as passage. The plaintiff has proved that he has purchased part of 25//1 vide registered sale deed Ex. P1 and area purchased by him is 10 marla, the area of which comes out to be 360 square yards. The plaintiff has produced site plan Ex. PW2/A wherein the said area in the site plan i.e. 362 square yards as shown by letters A to E towards the west of the aforesaid property gram panchayat''s land is shown. The plaintiff has also produced Ex. P8 Aks sazra pertaining to khasra 25//1 and nowhere in this site plan any passage is shown which leads to 108/2/1. Therefore, revenue records clearly depicts that no passage is in existence as per revenue records, which is claimed by the defendant as passage. By examining PW3, plaintiff has even established that the appellant/defendant is in unauthorized occupation of panchayat''s land comprised in khasra no. 108/2/1. PW4 Subhash Chand Patwari has also deposed in sum and substance that no passage exists in khasra no. 25//1 which leads to khasra no. 108/2/1. In the light of aforesaid fact the plaintiff has been able to establish that no common passage exists which leads to khasra no. 108/2/1. It is also clear by the statement of PW1 Ram Kishan who has tendered his affidavit Ex. PW2/A. This witness has deposed that he had sold 362 square yard land to the plaintiff vide registered sale deed dated 8.1.1997 and the passage which is left by him does not touch khasra no. 108/2/1. Therefore, contention of plaintiff that there is no rasta is well founded and learned trial Court has not fallen in error.

As far as claim of the defendant that rasta is used by common public is concerned, I am of the considered opinion that even in case land is lying vacant and used by others, the said right does not create a passage to be used by public at large unless said portion is dedicated by its owner for the common purpose. Even statement of PW4 Subhash Chand Patwari who has stated that this rasta is used by common public does not make the disputed property as common passage. I am also of the considered opinion that owners of khasra no. 25//1 and khasra no. 108/2/1 are different persons. Khasra no. 25//1 was earlier owned by PW1 Ram Kishan whereas khasra no. 108/2/1 is claimed to be owned by gram panchayat. Thus, owners of khasra No. 108/2/1 or the defendant cannot claim that they have any right to use khasra no. 25//1 as a passage. It is also trite that the defendant has not claimed any right of easement regarding this passage. Therefore, mere user of land which is owned by plaintiff does not give any right to the defendant/appellant to use the said land on the basis of right of easement.

Still not satisfied, the defendant No. 2 has filed the instant appeal, challenging the findings of the Courts below, submitting that following substantial questions of law arises in this appeal:-

i. Whether suit property is rasta and same vests in Gram Panchayat?

ii. Whether stopping the appellant from enjoying his house where he lived for long time after constructing his house?

iii. Whether the judgment and decree passed by both the courts below are legal?

iv. Whether granting injunction in using the rasta for the pacca house of appellant is legal?

At the outset, it may be noticed that both the Courts below, on appreciation of evidence, have recorded a concurrent finding to the effect that there exists no common passage, as alleged by the appellant and in fact the land in dispute belongs to the plaintiff-respondent No. 1. Even before this Court, counsel for the appellant has been unable to point out any evidence to support the case of the appellant.

In view thereof, this Court finds no merit in this appeal.

No substantial question of law, as raised, arises in this appeal. Dismissed.