Tara Chand and Others vs Nag and Others

Dharam Chand Chaudhary, J—Judgment and decree dated 14.1.2004, passed by learned District Judge, Mandi, in Civil Appeal No. 8 of 2002, is under challenge in the present appeal.

The appeal has been admitted on the following substantial question of law:

"Whether the courts below have misread, misinterpreted and misconstrued the oral as well as documentary evidence of the party especially statement of PW-1, PW-2, PW-3 and PW-5 alongwith spot map Ext. PD, which has materially prejudiced the case of the appellants?"

The appellants were defendants in the trial Court. It is one Jagat Ram, the predecessor-in-interest of the respondents herein, had filed the suit in the trial Court for the decree of permanent prohibitory and mandatory injunction. The land entered in Khata No. 20, Khatauni No. 26, Khasra Nos. 66, 78, 138, 117, 176 and 205, is situated in village Bohin, Tehsil Sadar, District Mandi. The path to have access thereto starts from land bearing khasra No. 205 of the respondents-plaintiffs and while crossing through the land of other right-holders including khasra No. 176 and 181 connects the land bearing khasra No. 146, owned and possessed by the appellants-defendants and there from this path leads to the land of the plaintiffs bearing khasra No. 66. In order to prove the existence of path, map Ext. PD prepared by PW-5 was produced in evidence. The path in the spot map has been shown with letters A, B and C in red ink. The plaintiffs and their predecessor-in-interest had been using this path to have access to their land bearing khasra No. 66 to carry out the agricultural operations such as ploughing the land, sowing seeds and harvesting the crops etc. etc. openly, uninterruptedly and peacefully.

As a matter of fact, the villagers have customary rights to use the land of each others to have access to their fields to carry out agricultural operations. Copy of ''Wazib-ul-arj'' Ext. PC has been produced in evidence in this regard. The appellants-defendants somewhere in the month of April, 1996 put barricades over the path at point "B" in the map Ext. PD and blocked the path in question at that point. They did not allow the plaintiffs and their other family members to have access to their land for carrying out agricultural operations, hence the suit for a direction to the appellants-defendants mandatory in nature, i.e., to remove the obstruction they caused over the path at point "B" and to restrain them by way of passing decree for permanent prohibitory injunction from causing obstruction in the path in any manner whatsoever and stopping the plaintiffs from using the path in question.

The defendants in the written statement besides making submissions preliminary in nature qua maintainability of the suit and valuation etc. etc., have come forward with the version that no path is in existence on the spot. The plaintiffs allegedly intend to create a new path in connivance with the revenue staff through their land. The plaintiffs allegedly have alternative path available on the spot, however, intended to use the alleged path with a view to cause interference in the land of the defendants. The suit without seeking declaration qua the existence of right of easement is stated to be not maintainable.

In view of the pleadings of the parties, the trial Court has framed the following issues:

"1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP.

Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for? OPP.

Whether the suit is not maintainable? OPD.

Whether the plaintiff has got no cause of action to file the present suit? OPD.

Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.

Whether the plaintiff is estopped to file the present suit by his own act, conduct and deed? OPD.

Whether the plaintiff has not come with clean hands to file the present suit? OPD.

Relief"

The plaintiffs in turn have examined five witnesses in all. Reliance on their behalf has also been placed on the documentary evidence, i.e., copy of Jamabandi for the year 1996-97, Ext. PA, copy of Missal Hakiat Bandobast Jadid, Ext. PB, copy of Wazib-ul-arj, Ext. PC, spot map, Ext. PD, copy of order Ext. PE and copy of judgment Ext. PF. Aks Tatima Shajra again marked as Ext. PA has also been produced in evidence.

On the other hand, defendant No. 1 Tara Chand has stepped into the witness box as D.W.-1 and defendants have examined one more witness Achhar Singh as D.W.-2.

The trial Court on appreciation of the evidence oral as well as documentary available on record, has decreed the suit for the relief of permanent prohibitory and mandatory injunction. Learned lower appellate Court in an appeal preferred by the appellants-defendants has affirmed the judgment and decree passed by the trial Court and dismissed the appeal.

Now the defendants are in second appeal before this Court. The challenge to the judgment and decree is on the grounds inter alia that without seeking declaration qua existence of right of easement and impleading all the co-owners of khasra No. 146 as party in the suit, the same was neither maintainable nor decreed for the relief of permanent prohibitory and mandatory injunction. The issues are also stated to be not framed in terms of the pleadings of the parties and on the other hand, the evidence available on record is not appreciated in its right perspective and rather misread, misconstrued and misinterpreted.

As noticed at the outset, the only legal question on which this appeal has been admitted pertains to the appreciation of the evidence oral as well as documentary because the complaint is that both Courts below have failed to appreciate the same in its right perspective and as a result thereof prejudice has been caused to the case of the appellants-defendants.

On hearing learned Counsel representing the parties on both sides and on appreciation of the evidence oral as well as documentary available on record, it would not be improper to conclude that the trial Court has decreed the suit on proper appreciation of the evidence available on record. Not only this, but reappraisal of evidence available on record by learned lower appellate Court, is also in its right perspective for the reasons to be detailed hereinafter.

The present is not a case where it can be said that both Courts below have misread, misconstrued and misinterpreted the evidence both oral as well as documentary produced by the parties on both sides and thereby erred in decreeing the suit.

As a matter of fact, the appellants-defendants and for that matter the respondents-plaintiffs have also misunderstood the right of passage as is being claimed because the plaintiffs claim only a right to have access to their land bearing khasra No. 66 with bullocks and other agricultural implements for carrying out the agricultural operations. They are not claiming the existence of general path through the land bearing khasra No. 146 of the defendants. As a matter of fact, they have only claimed passage to have access to the field/land bearing khasra No. 66 there from. It is for this reason they have produced in evidence the copy of ''Wazib-ul-arj'', Ext. PC. It has been recorded in this document in so many words that the right holders in order to carry out agricultural operations may take their bullocks and other agricultural implements through the fields of each other even if the crop is standing thereon and no one can object to such use of the land of each other. The only precaution to be taken while doing so is that the mouth of the bullocks must be tied with cover or rope. Not only this, but even small-small paths which come to an end at the time of ploughing the fields are also being revived again by the villagers and no one can create any hurdle or obstruction in such users of such paths. Therefore, the entries in ''Wazib-ul-arj'' amply demonstrate that what to speak of use of specific portion of land in order to have access to their respective fields, but the villagers can use any land belonging to anyone to have access to their fields and the owners of such land cannot object to such user. Such rights are customary in nature.

Of course, customary rights are required to be pleaded and proved on record. The plaintiffs herein have not only pleaded the existence of such rights, but also proved in evidence by producing the copy of ''Wazib-ul-arj'' Ext. PC and having deposed so while in the witness box as PW-1. PW-2 and PW-3 have also stated so while in the witness box. Therefore, the entries in the ''Wazib-ul-arj'' and the evidence as has come on record by way of own testimony of deceased plaintiff Jagat Ram, PW-2 and PW-3 amply demonstrate that the plaintiffs to have access to their land bearing khasra No. 66 was in the use of the passage shown with letters A, B and C in the map Ext. PD through the land of the defendants bearing khasra No. 146. The authenticity and genuineness of the map Ext. PD though has been assailed on the grounds inter alia that the Patwari PW-5 has prepared the same at the instance of the plaintiffs, however, unsuccessfully because PW-5 has categorically stated that he prepared the map on the spot as per the factual position. He has deposed about the existence of the path shown with letters A, B and C in the map Ext. PD and also that at point "B" the same crosses from front side of the temple. Therefore, from the copy of ''Wazib-ul-arj'' Ext. PC and the map Ext. PD and also the testimony of the Patwari concerned, it is satisfactorily proved that the path in existence to have access by the plaintiff to their land bearing khasra No. 66 was found to be blocked by the defendant at point "B", i.e., their land bearing khasra No. 146.

The existence of the path in question being used by the plaintiffs to have access to their fields with bullocks and agricultural implements to carry out agricultural operations is the one shown with letters A, B and C in the map Ext. PD. It is also established from their testimony that the defendants had obstructed the said path at point "B" in the map. True it is that in the statement of PW-1 mention of some alternative path is also there, however, the passage in question as per the statement of this witness is being used by the plaintiffs to have access to their land. Defendant No. 1 while in the witness box as D.W.-1 himself admits the existence of such passage, however, according to him the same crosses from backside of the temple and not from the front side. The passage as per the testimony of PW-5, however, is in existence in front side of the temple. PW-2 Shri Durgu and PW-3 Sant Ram though are not of the same village, however, as per their version also the disputed passage leads to the fields of the plaintiffs from a place nearby to the house of the defendants.

An effort has also been made by cross-examining both the witnesses that the alleged passage as being claimed by the plaintiffs is not in existence and that they have alternative approach available to have access to their fields, however, unsuccessfully because from the close scrutiny of their testimony it is established that the path shown with letters A, B and C in the spot may Ext. PD is being used by the plaintiffs to have access to their land.

If coming to the testimony of defendant No. 1 while in the witness box as D.W.-1, as already pointed out, has admitted the existence of passage nearby to his house, however, according to him, the same passes from the back side of the temple and not from front side. Not only this, but his answer to a suggestion that he has blocked the path in question on his land bearing khasra No. 146 by stacking wood though has been denied being wrong, however, voluntarily stated that the said path was blocked by him ten years ago. The testimony of D.W.-2 Achhar Singh though is not material in nature as he expressed his ignorance to the suggestions given to him in his cross-examination, however, in his examination-in-chief he has deposed about the existence of passage, i.e., one in the back side of the temple and the another below that of the house of the defendants. Therefore, his testimony that no passage is in existence nearby the temple is hardly of any consequence. Interestingly enough in his cross-examination, it is stated that the defendants have stacked the wood near the temple and thereby blocked the passage.

Reliance has also been placed on the judgment Ext. PF rendered by this Court in CR No. 33 of 2000, preferred against an order passed by learned Additional District Judge, Mandi in Civil Miscellaneous Appeal whereby the interim order passed by the trial Court directing thereby the defendants herein not to prevent the plaintiffs from using the path in question, was quashed and set aside. This Court while quashing the order so passed by the Additional District Judge, Mandi has allowed the revision petition and restored the interim order passed by the trial Court, however, subject to the condition that the passage on the disputed land will only be used by the plaintiffs for carrying out agricultural operations. Therefore, earlier also this matter was brought to this Court at the stage of grant of ad-interim injunction.

In view of what has been said hereinabove, both the Courts below have appreciated the evidence available on record in its right perspective and have not committed any illegality or irregularity while decreeing the suit. Therefore, no legal question of law what to speak of substantial question of law arises for determination. Consequently, the impugned judgment and decree being legally and factually sustainable, deserves to be upheld. Substantial question of law is accordingly answered.

For all the reasons stated hereinabove, this appeal fails and the same is accordingly dismissed. No order so as to costs.