Vijay Singh And Another vs Dharam Pal And Others

Ravindra Maithani, J

Present appeal is preferred against the judgment and decree dated 30.09.2003, passed in Original Suit No. 68 of 1996, Vijay Singh and another Vs.

Dharampal and others (for short “the suitâ€), by the court of learned Additional District Judge/ 3rd Fast Track Court, Haridwar ( for short “ the

caseâ€​). By the impugned judgment and decree, the suit filed by the appellants has been dismissed.

The appellants filed the suit for permanent prohibitory injunction. According to the case, a pathway runs in the village of the parties from west to

east and on the eastern side, it turns towards the north and joins a railway line. In the western side, the pathway turns towards south and goes to

agricultural fields. At one point, on this pathway, at northern and western sides lies a vacant land of the respondents. This land is adjacent to the

pathway. The appellants have shown the pathway in the map annexed with the plaint with the letters L, M, N and O. On the western side of this

pathway, a wall raised by the respondents has been shown by the letters Q and R in the plaint map. It is the case of the appellants that the

respondents in order to gain unlawful profit are threatening to obstruct the pathway by extending the Q and R walls towards eastern side. The

respondents have no right at all to extend their wall on the pathway. The appellants requested the respondents not to obstruct the pathway, but they

are adamant to do so and not desisting from their illegal presence. With these averments, the suit is filed for permanent prohibitory injunction,

restraining the respondents to obstruct the pathway.

The respondents filed written statement to the suit. According to the respondents, the wall at letters Q and R, as shown in the plaint map had

already been constructed, which is 3.5 feet in height and the respondents have no occasion to raise the wall any further. Therefore, the suit is

infructuous.

It is the case of the respondents that, in fact, the pathway has been encroached by the appellants, but the respondents have never obstructed the

pathway. It is as wide at the places adjacent to the land of the respondents as it is at other places.

Based on the pleadings of the parties, learned court below framed as many as nine issues as hereunder:-

(i) Whether the respondents have any right to obstruct the pathway, as shown by letters L, M, N and O in the plaint map 4A/8 and the appellants have

right to easement over it?

(ii) Whether the appellants on their own have encroached the pathway and narrowed it? If so it’s effect?

(iii) Whether the suit is barred by provisions of Sections 38 and 41 of the Specific Relief Act,1877?

(iv) Whether the suit is bad for non-joinder of Brahm Singh and Hukum Singh?

(v) Whether the pathway has been properly shown in the map annexed with the written statement? If so it’s effect?

(vi) Whether the suit is undervalued and court fee paid is insufficient?

(vii) To what relief, if any, are the appellants entitled to?

(viii) Whether the suit is barred by the principles of estoppel and acquisence?

(ix) Whether the suit is barred by the Section 106 of Panchayati Raj Act?

Parties filed documents in support of their case. In order to prove the case, the appellant examined PW1 Khajan Singh, PW2 Jagpal, PW3 Vijay Pal

in evidence. On behalf of the respondents, DW1 Raghuveer, DW2 Dharam Pal and DW3 Mitra Bhaskar Shah, Amin have been examined. The

Amin’s report alongwith map was confirmed subject to evidence by the court on 20.02.1997.

After hearing the parties, the learned court below recorded the following findings:-

(i) On issue no. 1 the court held that it is not proved that the respondents are trying to encroach the pathway by extending the wall as shown at letters

Q & R in the plaint map.

(ii) On issue no. 2, the court held that the appellants on their own had encroached the pathway and narrowed it.

(iii) On issue no. 3, the court held that the suit is barred by the provisions of Section 38 and 41 of the Act.

(iv) The issue no.4 was decided as preliminary issue on 20.02.1997 and additional parties were added.

(v) On issue no. 5, the court held that the position of the pathway has correctly been shown in the map annexed with the written statement.

(vi) The issue no.6 was decided by the court on 20.02.1997.

(vii) On issue no.8, the court held that it has not been proved.

(viii) On issue no.9, the court held that the suit is barred by the provisions of Section 106 of the Panchayati Raj Act.

Based on the findings, as recorded hereinabove, the suit has been dismissed.

Heard learned counsel for the respondents and perused the record.

It is the specific case of the appellants that the respondents threatened to obstruct the pathway by extending a wall as shown by letters Q and R in

the plaint map to its east. This is what is stated in Paras six, eight and nine of the plaint. Para nine of the plaint is with regard to the cause of action.

The appellants are specific that at point R as shown in the plaint map, the respondents intend to extend the wall towards east so as to obstruct the

pathway and accordingly, the relief has been sought. The respondents have categorically stated in para seven of their written statement that the wall is

already in existence as shown in the plaint map and the respondents have no occasion to further extent the wall. Hence, the suit has become

infructuous.

The only point for determination is as follows:-

(i) Whether the respondents have ever threatened to obstruct the pathway by the extending the wall as shown by the letters Q and R in the plaint map,

to its east.

Learned counsel for the appellants would submit that admittedly, the pathway is in existence; court below has wrongly framed various issues and

decided them; pathway should not be obstructed and this Court can under Order 41 Rule 33 of the Code of Civil Procedure, 1908 mould the relief, so

as to pass such order, as required in the case.

On the other hand, learned counsel for the appearing for the respondents would submit that the pathway is not in curve and the respondents are

not encroaching the pathway. The wall at points Q and R as shown in the plaint map is in existence for last many years.

It is the specific case of the appellants that the respondents are threatening to extend their wall towards east so as to obstruct the pathway. PW1

Khajan Singh was examined on 26.09.2001. He has stated that the respondents had constructed their wall some 4- 4 ½ years ago. It has become

difficult for the appellants to use the pathway. In his cross examination conducted on 30.10.2001, at page three, PW1 Khajan Singh has stated that the

wall constructed by the respondents is about three feet in height and it is adjacent to the pathway towards it’s west. He also says that the wall

was raised some 5-6 years ago. It means, the wall was constructed in the year 1995 or 1996. PW2 Jagpal, has stated nothing in his examination-in-

chief. PW3 Vijay Pal is the appellant no.1. At page two of his statement, he has stated that after filing of the suit, the respondents raised the wall.

It may be noted here that the plaint in the case was filed on 23.04.1996. At page four in his cross examination, PW3 Vijay Pal says that the wall

was raised by the respondents in the month of March, 1997. At page seven, bottom lines PW3 Vijay Pal tells that he cannot say what was the length

of the wall that was raised by the respondents. According to PW3 Vijay Pal, they have reported the matter to Gram Panchayat and Sub Divisional

Magistrate was also informed. Thereafter, obstruction was removed (statement of PW3 page eight bottom lines).

The appellants’ witnesses have not stated as to on which date, respondents threatened to obstruct the pathway. There is no specific averment,

date and time. It is the plaint case that the respondents are threatening to obstruct the pathway at a particular point by extending their wall from point

R towards east, as shown in the plaint map. In his statement, PW3 Vijay Pal says that subsequent to filing of the suit, the wall has been extended.

DW1 Ranveer Singh has stated that the wall was raised by the respondents some 10-11 years ago and the pathway has not been obstructed.

DW2 Dharam Pal, the respondent himself, tells that the wall was raised by them some 10-12 years ago and the pathway has not been obstructed by

them. DW3 Mitra Bhaskar Shah is the Amin, who filed his affidavit, but he has also not stated about any obstruction made by the respondents.

As stated, according to the plaint case, the respondents were threatening to obstruct the pathway and has PW3 Vijay Pal states that in the month

of March 1997, which means during the pendency of the suit, the pathway was obstructed. But, the appellants did not inform it to the court below that

the pathway has been obstructed and the threat has been executed. The suit was filed for permanent prohibitory injunction. If the statement of PW3

Vijay Pal is to be believed then it means that suit for prohibitory injunction had become infructuous. But then, as stated, the appellants did not inform

the court below about the obstruction during the pendency of the suit and even the reliefs were not modified.

On the other hand, the respondents have stated that their wall has been constructed long before filing of the suit and it is stated by the respondents

in the written statements at the very first opportunity. It simply means that, in fact, the wall was in existence prior to the filing of the suit. There is no

evidence on the record to even suggest as to on which date threat was given to extend the wall. Therefore, this Court is of the view that, in fact, the

appellants utterly failed to prove that any threat was ever extended by the respondents to extend the wall, as shown by the letters Q and R in the plaint

map towards east. The wall was in existence prior to filing of the suit.

Learned court below has rightly observed in its finding on issue no.1 that the wall was in existence prior to the filing of the suit.

Point of determination is decided accordingly and in view of it, in fact, there is no cause to the appellants to file the suit. The learned court below

rightly dismissed the suit. Accordingly, this Court is of the view that the instant appeal deserves to be dismissed.

The appeal is dismissed.