Sant Ram vs Lachho and Others

Surjit Singh, J.—This Regular Second Appeal by one of the Defendants is directed against the judgment and decree dated 14th January, 1998 of learned Additional District Judge, whereby dismissing the appeal of the Appellant- Defendant, judgment and decree of the trial Court, decreeing the suit of the Plaintiff, has been upheld.

Plaintiff filed a suit for permanent prohibitory injunction restraining the Defendants from causing any interference in his land bearing Khasra No. 665, measuring 727 Sqm. It was alleged that the Plaintiff was owner in possession of land bearing Khasra No. 665, but the Defendants had started threatening to interfere in the land, claiming that they had a passage through the same, which was not correct.

Defendants pleaded that they had a passage running through the suit land, though it was conceded that the Plaintiff was the owner. It was pleaded that Defendants had acquired right of easement by passage of time. Plea of customary easement was also raised, which was given up at the time of final hearing.

Various issues were framed, on the basis of the pleadings of the parties. Defendants gave up their claim of passage based on customary easement. Trial Court concluded that the Defendants had failed to prove the easement of necessity or easement by prescription. Consequently, the suit was decreed. Appeal filed by the Defendants stands dismissed by the Additional District Judge.

Appeal was admitted on the following substantial questions of law:

Whether both the learned Courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them in its true and correct perspective, thereby vitiating the impugned judgments and decrees?

Whether Courts below mis-read and misconstrued the oral and documentary evidence, particularly, with special reference to Ex. D-1 as also the evidence of DW-1?

I have heard the learned Counsel for the Appellant and gone through the evidence.

Defendants did not file any plan of the passage claimed by them. Suit land is a big chunk of land, measuring about one bigha. For succeeding in their claim for right of passage, it was sine qua non to file a plan of the claimed passage. Therefore, this by itself was a good ground for dismissing Defendants'' plea. Also, the Defendants did not lead any evidence, showing that they had been passing through the land for the requisite period prescribed for acquiring easementary right and that they had been so passing without any interruption as of right and that such a right was being exercised by them within two years of the filing of the written statement. Thus, not only they did not plead the aforesaid ingredients of right of easement by prescription, but also did not lead any evidence.

Ex. D-1 is the copy of wazir ul urj. As per this document, farmers have the right to pass through the embankments of each others fields for approaching their own holdings. Defendants themselves stated during the course of arguments in the trial Court that they did not want to rely upon Ex. D-1, in support of their claim as theirs was a case of easement acquired by prescription.

In view of the above discussion, both the substantial questions of law are answered against the Appellant and the appeal is dismissed.

Appeal stands disposed of.