VIR KHANNA Vs. SHORI LAL

JUDGEMENT

(1.) The above second appeal has been filed by the Defendants in C.S. No. 31 of 1986 on the file of the learned Senior Sub-Judge, Chamba who lost before both the courts below challenging the judgment and decree passed by the learned first Appellate Judge dated 30.3.1998. It may be pointed out even at the out-set that the Appellants have come for the second time before this Court and though the Appellants were successful on the earlier occasion in getting the order of remand to the learned first Appellate Judge and when the first Appellate Judge once again held against the Appellants, the present second appeal has been filed. Both the original Plaintiff and the Defendant are said to be no more and it is their respective legal heirs and representatives who are now on record pursuing these proceedings. The suit was filed by the predecessor-in-interest of the Respondents for a decree of declaration that the map sanctioned by the Defendants No. 3 and 4, the Municipal Committee, for construction of a new shop by the first Defendant in the property in question is illegal and not binding on the Plaintiffs and Defendants No. 1 and 2 be restrained permanently from raising any construction/obstruction over the passage (stairs) from Gandhi Chowk leading to the house of the Plaintiff in any manner. As could be seen from the materials placed on record and the judgments of the courts below, the Plaintiff based his claim of right, said to be flowing in his favour from the sale-deed dated 30.12.1995 under which the Plaintiff purchased from the first Defendant the land known as 'Emporium Cottage' situated in a portion of the larger extent of the property described in the suit schedule under which the right of passage to the property in the form of stairs in question was specifically granted. The plea on behalf of the Defendant was that although the Plaintiff was allowed a right of passage over the stairs at the time of the sale of the property in 1955, there was no specific description of the said right of passage and, therefore, the Defendants No. 1 and 2 have every right to change such path by providing an alternate stairs or passage. It was also the contention of those Defendants that the said passage was used in common by others also and the other tenants had not objected to the proposed change in the stairs and in view of the provision of the alternate passage the closing of the present old stairs over a distance of 7/8 feet and joining new stairs with the old stairs, the Plaintiff cannot be said to be either prejudiced or aggrieved in any manner entitling for the relief sought for. Defendants No. 3 and 4, the local municipal authority, only placed the relevant facts about the sanction of the plan and disclosed the further fact that on an earlier occasion, on the objection of the Plaintiff the application of the first Defendant for such sanction was rejected but later the Municipal Council accorded sanction for the same in view of the provision of the alternate passage. They had no personal interest as such in the matter though their proceedings are also the subject matter of challenge in the present suit.

(2.) After trial and on consideration of the relevant materials on record, the learned trial Judge has come to the conclusion that the Plaintiff has an easementary right of passage over the stairs in question and the proposed construction of shops thereon is likely to obstruct the Plaintiff from enjoyment of that right. As for the plea of alternate passage and the discretion and right claimed for the Defendant, the servant owner, to have at his choice substitute the same by another passage, for the use of the Plaintiff, the learned trial Judge by placing reliance on the decision of Orissa High Court in Khandeswar Champati and Ors. v. Cokulananda Nena, 1965 AIR(Ori) 91, came to the conclusion that right of way acquired from one point to another in a particular direction or according to a particular route cannot at the choise of the servant owner alone, be altered or substituted by any other way and, therefore, over-ruled the objection of the Defendant and decreed the suit as prayed for. The appeal filed in C.A. No. 51 of 1988 came to be dismissed which resulted in filing of a second appeal before this Court in R.S.A. No. 204 of 1989. Surinder Sarup, J., who heard and disposed of the appeal, by his judgment and decree dated 4.7.1997 observed, in the context of a plea stated to a have been raised by the then learned Counsel for the Appellant that though a perusal of the plaint does not indicate that a plea regarding necessity has not been specifically made, it was found to be inherent in the plaint taken in its totality and read as a whole and being a legal issue involved it was considered incumbent upon the first Appellate Court to consider this aspect and give specific finding on the question as to whether a claim in respect of such easement was justified as an easement of necessity or an easement by prescription, in the light of the evidence on record. For that purpose the learned Judge was pleased to remit the proceeding to the first Appellate Court with certain restrictions in the matter of admission of additional evidence for which liberty has not been granted by the learned Judge, himself. The appeal thereafter appears to have been restored to its original file and once again, as noticed above, came to be dismissed by concurring with the judgment and decree passed by the learned trial Judge and also holding that the Plaintiff had a right of easement of necessity in respect of the passage in dispute. Hence, this second appeal.

(3.) Mr. Sanjiv Kuthiala, learned Counsel appearing for the Appellant, while elaborating the substantial questions of law sought to be raised, contended that the directions contained in the earlier remand order of this Court have not been properly complied with and the learned first Appellate Judge committed a grave error in over-looking the fact that there had been no proper plea of easement of necessity and easement by prescription and consequently, the finding in this regard cannot be sustained. Argued, the learned Counsel further that the discretionary relief of injunction could not have been granted by converting it into a mandatory injunction for demolition particularly when there was scope for monetary compensation to mitigate the loss, if any, to the Plaintiff and that too without properly considering the matter from the said angle.