Shri Atma Ram @APPELLANT@Hash Shir Onkar Singh

1.The Appellants Are The Successors-In-Interest Of Defendant No. 1 And Having Lost Before Both The Courts Below Have Filed The Instant

Regular Second Appeal. (Parties Hereinafter Shall Be Referred To As The ‘Plaintiffs’ And ‘Defendants’).

The Plaintiff/Respondent No. 1 Filed A Suit For Permanent Injunction Restraining The Defendant No. 1 From Interfering In Any Manner And

Causing Any Sort Of Obstruction In The Right Of Passage And Further Restraining Him From Encroaching Upon And From Raising Any Sort Of

Construction Over The Passage Comprised In Khasra No. 433, Khewat No. 943, Khatauni No. 1285, Measuring 0-18 Marlas As Entered In The

Jamabandi For The Year 1980-81. It Was Averred That The Plaintiff Alongwith The Other Residents Of The Village Had Their Abadi And Landed

Property In Village Amb Since The Time Of Their Ancestors And The Aforesaid Land Was Classified In The Revenue Record As “Share-Aam-

Rasta†And Being Used By The Villagers Since The Time Immemorial And On Such Basis Claimed The Right Of Easement Of Prescription As

Well As Easement Of Necessity And Thereby Prayed For Decree For Permanent Injunction And In Alternate For Mandatory Injunction On The

Ground That Defendant No. 1 Alongwith Pradhan Of The Gram Panchayat Was Trying To Block The Passage By Storing Dry Fuel Wood Without

Any Right, Title Or Interest.

In The Written Statement Filed By Defendant No. 1, Preliminary Objections Regarding Maintainability, Better Particulars, Estoppel, Cause Of

Action Etc. Were Raised. On Merit, It Was Contended That The Abadi Of The Plaintiff In The Village Was Not Disputed, However, It Was Denied

That There Was A Passage And Rather It Was Claimed That The Suit Land Falls Inside The Gate Of The Abadi Of Defendant No. 1 And The

Entries In The Revenue Record Showing Suit Land As Passage Are Absolutely Wrong, False And Illegal And Were The Result Of Connivance Of

The Plaintiff With The Revenue Field Staff Because The Plaintiff Himself Retired As Patwari.

In The Written Statement Filed By Defendants No. 2 And 3, It Was Alleged That Defendant No. 1 Has Moved An Application Before The Gram

Panchayat For Inspection Of The Spot And Accordingly Pradhan And Members Of The Gram Panchayat Had Inspected The Spot In Presence Of

The Plaintiff And Defendant No. 1 On 20.04.1996. They Also Disputed The Passage As Claimed By The Plaintiff. It Was Submitted That Settlement

Authority Has Carved Out New Khasra Nos. 1054, 1055 And 1060 Of Old Khasra No. 433. Other Allegations, So Called Obstructions In The

Passage Were Denied.

At This Stage, It Would Be Relevant To Mention That Earlier Defendants No. 2 And 3 I.E. Gram Panchayat And Gram Sabha, Amb Were Not

Parties And Came To Be Subsequently Incorporated. This Necessitated The Framing Of Additional Issues. The Total Issues Framed In This Case

Read Thus:-

Whether There Is A Share-Aam-Rasta (Passage) Over The Suit Land?OPP

Whether The Suit Land Is Not Maintainable?OPD

Whether The Suit Is Barred Under Section 91 CPC?OPD

Whether The Plaintiff Is Estopped By His Act And Conduct?

OPD

Whether The Plaintiff Has No Standing To File The Present Suit?OPD

Relief The Following Additional Issues Were Framed On 15.05.1991:-

1A. Whether The Plaintiff Has A Right Of Way By Way Of Easement Of Prescription?OPP

1B. Whether The Plaintiff Has Acquired Right Of Way By Way Of Easement Of Necessity Over The Suit Property?OPP Again The Following

Issues Were Framed On 04.06.1996:-

5A. Whether The Plaintiff Is Entitled To The Relief Of Injunction As Prayed For?OPP

5B. Whether The Suit Is Bad For Mis-Joinder Of Parties As Alleged?OPD-2

5C. Whether The Suit Is Not Maintainable For Want Of Notice Under Section 193 Of The H.P. Panchayati Raj Act, 1994?OPD-2

5D. Whether The Suit Is Bad For Non-Compliance Of The Provisions Of Order 1 Rule 10 CPC?OPD-2 The Following Additional Issue Was Framed

On 07.04.1997:-

5E. Whether The Suit Is Barred Under Section 41(1)(H) Of Specific Relief Act As Alleged?OPD-1

The Learned Trial Court After Recording Evidence And Evaluating The Same, Decreed The Suit Of The Plaintiff And The Appeal Filed Against

The Same Also Came To Be Dismissed, Constraining The Defendant No. 1 To File The Instant Appeal.

On 24.04.2003, The Appeal Came To Be Admitted On The Following Substantial Questions Of Law:-

When The Settlement In Village Took Place Much Before The Institution Of The Suit And The Revenue Entries Stood Corrected In Faovur Of

The Defendant-Appellant, Could The Plaintiff-Respondent No. 1, Without Assailing Such Entries And Without Giving Proper Description Of The

Khasra Nos. Allocated During The Settlement, Institute The Suit By Mentioning The Old Khasra Nos. For Grant Of The Relief Of Permanent

Prohibitory And Mandatory Injunction?

Whether Both The Courts Below Have Acted Beyond Their Jurisdiction In Not Appreciating The Provisions Of The Easement Act Whereby It

Was Not Permissible For The Plaintiff-Respondent No. 1 To Institute The Suit Claiming The Easement Of Prescription As Well As Easement Of

Necessity With Respect To The Same Passage?

Whether Both The Courts Below Have Illegally Exercised The Jurisdiction In Not Dismissing The Suit Of The Plaintiff-Respondent No. 1 For

Want Of Arraying Such Persons As Party To The Suit Who Allegedly Have Claimed The Alleged Passage Which Was Claimed By The Plaintiff-

Respondent No. 1 To Be “Share-Aam-Rastaâ€​?

Whether Both The Courts Below Have Misdirected Themselves By Misreading The Oral And Documentary Evidence And Misapplying The

Correct Principles Of Law In Holding That The Entries Corrected During The Settlement With Respect To The Disputed Property Stood Rebutted?

Since All These Issues Are Intrinsically Interlinked And Interconnected They Are Taken Up Together For Consideration And Are Being Disposed

Of By Way Of Common Reasons.

At The Outset, It Needs To Be Observed That An Owner Of A Property Is Entitled To Enjoy And Seek Protection Of Such Enjoyment Of His

Property And This Right Can Never Be Denied By Any Court. Therefore, The Third Party Normally Has No Right To Interfere Or Claim Any Title

Over The Property Belonging To The Real Owner, Save And Except, On The Basis Of Right Of Easement Or By Way Of Adverse Possession Etc.

The Instant Case Relates To A Claim Put-Forth By The Plaintiff On The Plea Of Easement Of Necessity As Also Prescription, But Then This

Plea Has Been Specifically Negated By The Learned Trial Court By Observing As Under:-

The Plaintiff Has Further Pleaded That Suit Land Has Been Used By The Plaintiff And Other Inhabitants Of The Village Continuously, Regularly,

Freely And Acquired Right Of Easement By Way Of Prescription As Well As Easement Of Necessity. In The Plaint, Plaintiff Is Trying To Assert

And Establish His Right Over The Path By Way Of Easement Of Necessity And Prescription And In The Plaint He Has Nowhere Pleaded That

Said Path Was Used As Of Right. In Such Circumstances, User Of Path Will Not Mature Into A Right By Way Of Prescription Unless That Path

Issued As Of Right. The Right Way By Way Of Prescription Is A Hostile Claim Against True Owner And Has All Ingredients Of Adverse

Possession. A Right Of Easement Cannot Arise By Prescription In Favour Of An Individual. Mere Lawful Exercise By An Individual Of A Common

Right For The Prescriptive Period Cannot Confer An Exclusive Right And In Order To Acquire A Prescriptive Right, The Individual Must Perform

Some Act To The Knowledge Of The Servant Owner Clearly Indicating His Individual Claim Of Right. The Plaintiff Has Nowhere Claimed In His

Statement That He Had Been Using The Path As Of Right For The Last 20 Years. The Evidence Led By The Plaintiff Is Not Proving That Path

Was Being Used By The Plaintiff As Of Right Without Any Interruption, Peacefully And Openly And The Same Was Being Used As Of Right For

The Last 20 Years. The Plaintiff Has Further Pleaded Right Of Easement By Way Of Necessity. When The Plaintiff Has Pleaded That Suit Land Is

A Share-Aam-Gair Mumkin Rasta And Defendant No. 1 Has Blocked The Same In Connivance With The Pradhan Of Gram Panchyat And Further

Pleaded That Defendant No. 1 Has No Right, Title Or Interest To Block The Same. The Said Passage Is Share-Aam-Gair Mumkin Rasta Which

Connected The Land And Abadi With The Link Road Which Further Connected With The Main PWD Road Leading From Mubarikpur-Una, In Such

Circumstances, Plaintiff Cannot Claim Right Of Way By Way Of Easement Of Prescription And Necessity. Moreover, There Is No Cogent And

Reliable Evidence On Case File, On The Basis Of Which It Can Be Said That Plaintiff Has Right Of Way By Way Of Easement Of Prescription

And Necessity Over The Suit Land And As Such Issues No. 1A And 1B Are Decided Against The Plaintiff.

However, Still The Learned Trial Court Still Decreed The Suit Of The Plaintiff On The Basis Of Findings Recorded Qua Issue No. 1 By Holding

That Since The Suit Land Was Classified As “Share -Aam-Rasta†In The Revenue Record, Therefore, The Plaintiff Was Entitled To A Decree

Of Mandatory Injunction Against The Defendant And Further Ordered The Removal Of The Encroachment And Demolition Of Super Structure, If

Raised Over The Passage.

Admittedly, The Plaintiff Did Not Assail The Findings Recorded By The Learned Trial Court Regarding The Easementary Rights And It Was

Only The Defendant Who Aggrieved By The Judgment And Decree Passed By The Learned Trial Court, Filed An Appeal Before The First

Appellate Court. The First Appellate Court Categorically Took Note Of The Fact That The Plea Of Right Of Easementary Claim By The Plaintiff

Had Been Rejected By The Learned Trial Court And Has Not Even Been Agitated By The Plaintiff. Yet It Too Solely On The Basis Of The

Findings Recorded By The Learned Trial Court On Issue No. 1, Proceeded To Affirm The Decree Passed By The Learned Trial Court.

As Observed Above, A Right Of Easement Like Adverse Possession Are Few Of Those Rights That Can Be Claimed Over Someone Else

Property Or Else Such Rights Are Not At All Recognised And Other Then These Two Rights, Right To Interfere And Use Someone Else Property

That Too Against His Wish And Consent Is Unknown To Law. The Property In Dispute Admittedly Belongs To Gram Panchayat And, Therefore, It

Is Really Not Understandable How Contrary To Its Wishes And Consent The Suit Of The Plaintiff Has Been Decreed Merely On The Basis Of The

Revenue Entries. The Mere Fact That The Land Has Been Classified As “Share-Aam-Rastaâ€, Does Not In Any Way Confer A Larger Right

Upon The Plaintiff To Claim This Land As A Matter Of Right And Other Than The Right By Way Of Easement And This Right Was Held To Not

Proved And In Fact Has Been Negated And Rejected By The Learned Courts Below. Therefore, The Suit Of The Plaintiff Could Not Have Been

Decreed.

To Say The Least The Findings Recorded By The Learned Courts Below Are Based On Complete Misunderstanding And Mis-Appreciation Of

The Law On The Subject And Being Perverse, Therefore, Cannot Withstand Judicial Scrutiny.

Article 300 A Of The Constitution Of India Reads As Under:- “300A. Persons Not To Be Deprived Of Property Save By Authority Of Law-

No Person Shall Be Deprived Of His Property Save By Authority Of Law.â€​

No Doubt Right To Acquire, Hold And Dispose Of Property Ceased To Be A Fundamental Right Under The Constitution, Yet Still Continues To

Be A Constitutional Right. Therefore, A Person Whether A Juristic Or Natural Can Be Deprived Of His Property Only In Accordance With Due

Process Of Law. Anything Done In Contravention Of Constitution Of India Guaranteed Under Article 300A Of The Constitution Is Liable To Be

Struck Down By The Court. Substantial Questions Of Law Are Answered Accordingly.

In Addition To The Aforesaid, It Would Be Noticed That Defendant No. 1, During The Pendency Of The Appeal Had Filed An Application For

Additional Evidence Being CMP No. 343 Of 2006 And Vide Order Dated 11.09.2006, The Same Was Ordered To Be Listed Alongwith The Main

Appeal. Vide This Application The Defendant Has Sought To Bring On Record The Certified Copy Of The Order Passed By The Learned Assistant

Collector First Grade, Amb Dated 22.08.2003, Whereby The Revenue Records Have Been Duly Corrected In Favour Of The Appellant For The

Land On Which The Plaintiff Had Been Claiming The Alleged Right Of Passage. No Doubt The Orders Of The Revenue Court Are Not Binding On

This Court But Nonetheless The Said Orders Cannot Be Ignored Particularly When It Relates To The Correction Of The Revenue Record, Which

Otherwise Is In The Exclusive Domain Of The Revenue Officer. The Application Is Accordingly Allowed.

In View Of The Aforesaid Discussion, I Find Merit In This Appeal And The Same Is Accordingly Allowed And Consequently The Suit Filed By

The Plaintiff Is Dismissed, Leaving The Parties To Bear Their Own Costs. Pending Application(S), If Any, Also Stands Disposed Of.