Thakur Singh Chettri and Others vs Dharma Samsher Basnett and Others

Sunil Kumar Sinha, C.J—Being aggrieved with the Judgment and Decree dated 26.06.2014 passed by the Principal District Judge (E&N) Sikkim at Gangtok in Title Appeal No. 3 of 2014, arising out of the Judgment and Decree dated 10.05.2012 passed by Civil Judge, South District at Namchi, South Sikkim, in Title Suit No. 01 of 2011, the Appellants/Plaintiffs have filed this Second Appeal.

The Appellants have lost in both the Courts.

The facts, briefly stated, are that the Appellants filed a Civil Suit in representative capacity claiming that they along with members of 30 families residing in 5th Mile, Tadong, have acquired easementary rights on the motorable road and footpath described in Schedule of the plaint. According to them, they acquired the said rights by way of prescription and easement of necessity. The Appellants, inter alia, contended that the road and footpath described in Schedule of the plaint, were old ones, which the villagers were using for reaching to the National Highway 31-A since last more than 50 years. The said road was situated on the portions of Plot No. 259/688, which was earlier recorded as a Government land. However, it was later on mutated on the name of Respondent No. 1. They further contended that they have no other way to reach to the National Highway 31-A, therefore, on the basis of their easementary rights a declaration be made to the above effect and the Respondents be directed to dismantle the RCC pillars with iron gate, which they had constructed at the beginning of the road near the National Highway and the Appellants may be permitted to use the said road un-hurdled.

The Respondents claimed that the scheduled road was situated over portions of Plot No. 366 which was the absolute property of Respondent No. 1, who later on transferred it to Respondent No. 2. The scheduled road starts from National Highway 31-A and ends in the residential premises of the Respondents. Thus, the road is their private road and at no point of time it was being used as a public road. So far as the sketch map of the Appellants (Exhibit-1) is concerned, they specifically contended that the scheduled road shown beyond the house of Respondent No. 1 to the house of Changba is not at all in existence and it never existed at any point of time. The Respondents specifically denied the existence of any easementary right by way of prescription or easement of necessity.

The learned trial Court framed following issues in this case: -

"(1) Whether the suit property falls within the land holdings of the Government of Sikkim or is the private property of the defendants?

(2) Whether the motorable road in the suit property was constructed by the defendants?

(3) Whether the plaintiffs and other people living in the said locality have easementary right in the suit property?

(4) Whether the plaintiffs and other people living in the said locality has been plying their vehicles on the alleged link road (cart road) and the footpath leading to the house of plaintiff No. 2 and further, for more than 50 years?

(5) Whether there is a metallic road/and or footpath behind a lawn and patio in front of the defendants car park?

(6) Whether the motorable road on the suit property is the only access to the house of the plaintiffs and the people living in the lower reaches of the said locality?

(7) Relief(s), if any? "

On the basis of evidence available on record, the trial Court recorded the findings that the disputed road was the private property of the Respondents and was situated on their Plot bearing No. 366. It was constructed by the Respondents and the Appellants or the villagers had no easementary right over the said road. The trial Court also recorded the findings that there was no metallic road and/or footpath behind the lawn and patio of the Respondents and further that the scheduled metallic road was not the only access to the houses of the Appellants and the people living in the lower reaches of the said locality. It was held that there were several access points to their respective houses. The trial Court, therefore, dismissed the suit of the Appellants vide its Judgment and Order dated 10.05.2012 and a Decree was drawn accordingly.

The Appellants, thereafter, challenged the aforesaid Judgment and Decree by filing Title Appeal No. 3 of 2014 before the Principal District Judge, East Sikkim at Gangtok. The said Court dismissed the Appeal filed by the Appellants and confirmed the Judgment and Decree passed by the trial Court. The Appellants, then have filed this Second Appeal.

The Appeal was admitted for hearing on the following substantial question of law:

"Whether the Courts below have erred in law in not holding that the Appellants/Plaintiffs had established their right over the disputed road by way of prescription and easement of necessity? "

During the course of hearing of Appeal, on 25.08.2015, the Appellants filed an Application (CMA No. 234 of 2015) under Order XXVI Rule 9 read with Sections 107 and 151 of the Code of Civil Procedure for appointment of Commissioner to make local investigations. Arguments on this Application were simultaneously heard and order was reserved. Firstly I shall dispose of this Application.

CMA No. 234/2015

The Appellants have prayed for issuance of Commission to ascertain the correct plot number of the scheduled road. Whether it falls under Plot No. 259/688 or Plot No. 366? They have also prayed for ascertainment of the old plot numbers of these plots in 1952 Survey Operations and how and when Plot No. 259/688 was recorded on the name of Respondents/ Defendants and many other factual aspects of this nature.

I am unable to understand as to how an investigation in these aspects would be relevant for just and proper decision of the case.

In the instant case, the claim of the Appellants is based on easementary right. According to them, there is an old metallic road and pathway, as per Exhibit-1 (their plaint map), which they are using since last 50 years without interruption and, therefore, easementary right has been acquired by them by way of prescription and, secondly, that they have no other access to their houses except the scheduled road. How ascertaining old and new plot numbers of alleged scheduled road would be necessary for determining these questions.

Under Rule 9 of Order XXVI, the Court has ample jurisdiction to issue a Commission to make local investigation, if it appears to be necessary and proper for the purpose of elucidating any matter in dispute, or to make investigation relating to other matters which may be felt necessary and relevant for the purpose of lawful disposal of the suit. The object of Rule 9 is not to assist the party to collect evidence when it can get evidence itself.

In the instant case, existence of scheduled road and its user as also availability of alternative accessibility to the houses of Appellants and villagers are the facts in issue. I find that during the pendency of the suit itself a Commissioner, Ananta Jyoti Sharma (DW-6), was already appointed by the trial Court, who made investigations on the spot and submitted his report dated 05.06.2007, Exhibit - O, which he also proved by his evidence. I have gone through the contents of the report. The said report is self-explanatory on the questions raised by the Appellants. The Appellants had filed a detailed objection to the said report on 30.07.2007, which was rejected by the trial Court vide its Order dated 05.12.2007. Thereafter, the Commissioner (DW-6) was cross-examined at length by the Appellants and his report was admitted in evidence by the trial Court.

Thus, it is clear that the Commissioner''s report is already there on record, which is self-explanatory on the grounds on which the Appellants are claiming their easementary right over the scheduled road and there is no necessity of issuance of second Commission at this stage.

For all these reasons, I do not find any good ground to issue a Commission to make further local investigations. The Application (CMA No. 234 of 2015), therefore, is rejected.

RSA No. 02 of 2014

On Appeal, it was contended by learned Senior Counsel for the Appellants that the evidence available on record would show that the Appellants had established their right over the scheduled road by way of prescription and easement of necessity and the Courts below have erred in law in not holding so. Catenas of decisions were cited by them on various principles relating to easementary right, which are undisputed. A few of them, which appear to be relevant are Sree Swayam Prakash Ashramam and Another Vs. G. Anandavally Amma and Others, AIR 2010 SC 622 : (2010) 109 CLT 457 : (2010) 1 JT 123 : (2010) 1 SCALE 74 : (2010) 2 SCC 689 : (2010) 2 SCR 271 : (2010) 2 UJ 485 : (2010) AIRSCW 370 : (2010) 1 Supreme 23 ; Suresh Chand Vs. Hindu Mal and Others, AIR 1994 HP 56 : (1994) 1 ShimLC 361 ; and Dwaraka Prasad Agarwalla Vs. Nil Kamal BezbaruaAIR 2015 Guw 33 : (2015) 2 GLT 1 .

On the other hand, learned Counsel appearing on behalf of Respondents has opposed these arguments and submitted that existence of scheduled road and its alleged user by public at large as also the alternative accessibility to the houses of the Appellants and villagers, all are questions of facts, which have been concurrently decided by the two Courts below holding that the scheduled road, which begins from National Highway 31-A and ends in the house of the Respondents, is a private road of the Respondents and the same was not in use by other villagers, and further that there were several other alternative access points to the villagers to reach to the National Highway. Thus, they cannot be assailed in this Second Appeal. He also relied on Sree Swayam Prakash Ashramam (supra) and further Justiniano Antao and Others Vs. Smt. Bernadette B. Pereira, AIR 2005 SC 236 : (2004) 10 JT 228 : (2004) 9 SCALE 593 : (2005) 1 SCC 471 : (2005) 1 UJ 77 : (2004) AIRSCW 6527 : (2004) 8 Supreme 398 .

In Sree Swayam Prakash Ashramam, relied by counsel for both the parties, it was held that the easement of grant could be by necessary implication as well, and absence of pleadings as to easement by grant in plaint would not be material to upset the findings of fact when parties had contested on issue of implied grant. It was further held that the easement of necessity in relation to a pathway involves an absolute necessity and if there exists any other way, there can be no easement of necessity. In Suresh Chand (supra), the Appellant/Plaintiff was continuously using the path in question without any objection for more than 20 years. It was held that it raises presumption that their user was as of right and the Appellant acquired easementary right of way over path by prescription. In Dwaraka Prasad Agarwalla (supra), it was held that even if the disputed property, on which easementary right was claimed, was not properly defined in the plaint with its boundaries etc, however, sufficient material to identify the same was available on record and the Defendant also had acknowledged the existence of road passage on suit land, then it could not be held that the property remained unidentified and the plaint was liable to be returned.

While canvassing the above argument, learned counsel for the Appellants firstly referred to Exhibit-2, which is a Photostat copy of spot inspection report. This is not a certified document. It is not clear from this document as to who prepared it, because, only an initial with date as 20.06.2006 has been mentioned at the foot of the document. No witness was examined to prove the contents of this document. The trial Court has held that it was not admissible in evidence as it remained unproved. The view taken by the trial Court appears to be correct. The learned trial Court, however, has appreciated the contents of this document in light of the survey maps (Exhibit-9 and E) and has recorded a finding that the scheduled road is not the same which has been shown as sarkar batto in the above two maps, therefore, the claim of the Appellants that the scheduled road is the same which was mentioned as sarkar batto in the survey map was not proved.

Learned counsel for the Appellants also referred to Exhibit-4, filed by them. This is a certified copy of the Order Sheet dated 30.05.1987 recorded by the Additional District Collector, East Sikkim, in case No. 183/87. It appears that on a complaint made by Plaintiff No. 1, the said authority made spot inspection in presence of Respondent No. 2 and one Biju Basnett and recorded in the Order Sheet that the said footpath was constructed about two or three years ago, but, after boundary dispute concerning another area, the O.Ps. had tried to block the footpath which is passing through their land. If we appreciate the contents of this document in light of the Commissioner''s report, it would be clear that the Commissioner did not find any trace of footpath or thoroughfare as indicated in sketch map (Exhibit-1).

The Appellants have claimed their easementary right over the scheduled road, which is marked by red-ink in sketch map (Exhibit-1). According to the sketch map (Exhibit-1), the said road starts from National Highway 31-A and goes to the house of Changba. What the Commissioner''s report states is that the said metallic road begins from National Highway 31-A, as shown in Exhibit-1 of the Appellants, and it goes down towards North and after some distance it reaches to the house of Respondents, where it terminates in their courtyard and patio, which is 50 feet in breadth wherein 23 feet is concrete and the rest 27 feet is kept as a lawn. The Commissioner has specifically mentioned in the report that he had inspected the lawn area wherein he did not find any trace of footpath or thoroughfare beyond the lawn as indicated in Annexure-1 (Exhibit-1). In the light of the above, it is clear that a motorable road from National Highway 31-A, as shown in Annexure-A (Exhibit-1), is there which simply leads to the courtyard of the residence of the Respondents and there is no footpath or thoroughfare to the house of Changba, as claimed by the Appellants. Thus, if the thoroughfare/footpath itself is not there, so far as this second part of the alleged road is concerned, there would be hardly any question of acquisition of right by prescription thereon.

The evidence of Appellant No. 1, Thakur Singh Chettri, (PW-1), also confirms the same position. In cross-examination, he admitted that the scheduled road is surfaced with stones and carpeted with cement and bitumen and it is true that the said carpeted road leads from National Highway 31-A upto the courtyard of Respondents'' house. He further admitted that there is lawn of the Respondents where the carpeted road ends and it is true that at the yard of the Respondents where the carpeted road ends, there is an iron gate of the Respondents which is existing since last 20-25 years. This also makes it clear that the disputed road, which begins from National Highway 31-A, even according to the Appellant No. 1, ends at the house of the Respondents and there is no footpath/thoroughfare beyond their house to the house of Changba, as claimed by the Appellants.

Respondents have examined Dil Bahadur Tamang as DW-2. He is also known as Changba, which is clear from the cross-examination of DW-5, Kuldip Chettri. The Appellants have shown his house as the last house, down the house of Respondents and according to them the alleged thoroughfare beyond the house of the Respondents goes to the house of Changba. Dil Bahadur Tamang (DW-2) has deposed that the said metallic carpeted road, which belongs to the Respondents, begins from National Highway 31-A and terminates at the residence of the Respondents and there is no thoroughfare going beyond the residence of the Respondents as shown in Exhibit-1. He has also admitted that there is barbed wire fencing along the boundary of the residence of the Respondents, which is an old fencing. This also proves that there is no thoroughfare, as alleged by the Appellants, beyond the house of the Respondents, where their private metallic road ends and the Courts below have rightly held that the Appellants could not establish that they had acquired easementary right over the scheduled road in Exhibit-1.

So far as easement of necessity is concerned, it has been admitted by Punya Prasad Koiral (PW-2) that if one would climb straight uphill from the place where he reside, he would arrive at the National Highway 31-A. He further admitted that there are about 30 residences directly uphill from the place where he resides and there is a small footpath which crosses spring and leads from his house to the rear garden of the Respondents. He further admitted that he resides close to the house of Changba. He knows Motel Attri, which belongs to Mr. N.B. Khatiwada and there is a building next to Motel Attri and it is a fact that there is a new road leading downhill from next to the said building.

I have gone through the evidence of other witnesses, who have also admitted that there are alternative accesses available to the villagers to reach to the National Highway. Dil Bahadur Tamang (DW-2) also clearly admitted that Thakur Singh Chettri (Appellant No. 1), Mrs. Bina Chettri (Appellant No. 2) and Mr. Kapil Basnett have direct access from their respective residence to the National Highway 31-A through a route that passes nears the house of Mr. N.B. Khatiwada. Further, he also admitted that all these persons have separate and distinct means of access directly to the National Highway 31-A.

In Justiniano Antao (supra), relied by the counsel for the Respondents, it has been held that in order to establish a right by way of prescription to the detriment of the other party, one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be specific pleadings and categorical evidence in general and specifically that since what date to which date one is using the access for the last 20 years. About the easement of necessity, it was held that if the Plaintiff had no access to her property except through the property of the Defendants then perhaps the same could have been considered as an easement of necessity, but since the Plaintiff has an access, there is no reason why property of other persons should be permitted to be used for access.

In Sree Swayam Prakash Ashramam (supra) it was further held that if there exists any other way, there can be no easement of necessity.

On the basis of evidence and statements of the witnesses, I am satisfied that the Courts below have correctly approached the matter and have rightly held that the Appellants/ Plaintiffs have utterly failed to establish their easementary right over the scheduled road either by way of prescription or by easement of necessity.

The Appeal, therefore, is liable to be dismissed and is hereby dismissed.

There shall be no order as to costs.

A Decree be drawn accordingly.