KALYAN SINGH Vs. KARTAR SINGH

JUDGEMENT

(1.) The present regular second appeal has been maintained by the appellant, who was the plaintiff before the learned trial Court (hereinafter to be called as "the plaintiff"), laying challenge to the judgment and decree, dated 03.02.2016, passed by learned Additional District Judge, Hamirpur, H.P., in Civil Appeal No. 139/12 RBT 88/13, 72/14, whereby the judgment and decree, dated 17.05.2012, passed by learned Civil Judge (Sr. Div.), Nadaun, District Hamirpur, H.P, in Civil Suit No. 254/2002 was set aside.

(2.) Briefly, the facts, which are necessary for determination and adjudication of the present appeal are that the plaintiff filed a suit for declaration, mandatory injunction, as well as recovery of Rs. 10,000.00 qua land comprised in Khata No. 9, Khatauni No. 20, Khasras No. 96/1, 154/1, 167, 179, 184/1, 205, 205/1 and 208, measuring 1-97-11 hectares, situated in Village Jangal-Khor, Mouza Jalari, Tehsil Nadaun, District Hamirpur, H.P. as per Misal Hakiat Bandobast Jadid Sani 1994-95 (hereinafter to be called as "suit land No. 1"). As per the plaintiff, the defendant-respondent is owner in possession of land comprised in Khata No. 10, Khatauni No. 21, Khasra Kita 7, measuring 1-97-93 hectares and Khata No. 4 min, Khatauni No. 11 min, Khasras No. 106 and 181, measuring 0-08-16 hectares situated in village Jangal-Khor, Mouza Jalari, Tehsil Nadaun, District Hamirpur, H.P. as per Misal Hakiat Bandobast Jadid Sani 1994-95 (hereinafter to be called as "suit land No. 2"). Earlier, the land comprised in Khatas No. 9 and 10 was exclusively owned and possessed by the mother of the parties, Smt. Malook Dei and somewhere in the year 1995, she gifted the said land to the plaintiff and the defendant. However, prior to 1995 Smt. Malook Dei alongwith other villagers approached the authorities concerned for construction of road from village Jajoli to village Jangal-Khor upto her house. The authorities on acceding to the request, carried out survey of the road upto old house of Smt. Malook Dei, which was approved by Engineer-in-Chief vide letter dated 17.04.1994 for a length of 1.250 kms, touching the old house of Smt Malook Dei. In Sept., 1994 PWD, B & R Sub Division Dhaneta deployed bulldozer and the road was carved out upto complete length through present Khasras No. 73 and 70 partly and Khasras No. 106, 181 and 105. At that time, Khasra No. 105 was owned by Smt. Malook Dei and Khasras No. 106 and 181 by Panjab Singh and Bimla Devi, whereas Khasra No. 70 by both of them alongwith one Krishni Devi. At that time, no objection was raised to the proposed construction. However, during the year 1997 when PWD B & R started soling work from point 0.000 to 1.051 km, the defendant obstructed the same from point 1.051 km to 1.250 km. Thereafter, the concerned department carried out work upto 0.975 Km, because beyond same it was obstructed by the defendant, who beyond point 0.975 Ks to 1.051 Km himself laid concrete, as he had become owner of Khasras No. 105, 106 and 181. He also fenced the common boundary line of Khasras No. 105 and 184/1 by completely blocking ingress and outgress of the plaintiff to the land and for his house situated over suit land No. 1. Owing to said acts of the defendant, the plaintiff has been deprived of cultivation of his land, which is rendered barren. According to plaintiff, as per custom, he has a right to take tractor for the purpose of agriculture and the purposes subservient to the agriculture. Thus, the plaintiff suffered a loss to the tune of Rs. 10,000.00 and is suffering it continuously. Hence, the present suit.

(3.) In written statement, preliminary objection qua maintainability, limitation, estoppel and valuation were taken. On merits, it has been averred that mother of the parties gifted her property in their favour by way of separate and individual Khasra numbers and they are in possession of the same. The road was constructed in place where there was Gair Mumkin passage. Beyond that, there was exclusive land of the defendant and he himself has constructed the passage and mettled the same for his personal use. He has also put up grills and boundary walls. The construction of the passage and its use is for the last 10-15 years and during this period, no right was ever exercised by the plaintiff over the same. The plaintiff is having separate passage and is carrying his bullocks and tractor through the land of other villagers. There is no passage through the land of the defendant in a manner, as claimed by the plaintiff, nor any construction of road or soling was done by the department, as alleged. The gate has been erected by the defendant on the boundary of his land and the plaintiff has no right to access the road, as suit land No. 2 is exclusive property of the defendant. The easementary rights claimed by the plaintiff were also denied in the written statement.