Achhar Singh vs Hazara Singh

J.V. Gupta, J.—This is Plaintiff''s second appeal whose suit for perpetual injunction restraining the Defendant from interferring or blocking with in any manner the pathwas decreed by the trial Court but the same was modified by the lower appellate Court to the extent that the Plaintiff was granted decree for perpetual injunction restraining the Defendant from construction or interfering with the Plaintiff''s user of the passage only half a karam in width passing through the lands of the Defendant.

The Plaintiff-appellant Ashhar Singh filed a suit alleging that the land shown in the Akas Shajra attached was one Kurah and was allotted in consolidation to one Gobind son of Narain Singh. The said owner Gobind was given passage to his Kurah and from there he had to go to his fields after passing through his own fields. It was further alleged that in course of time, the said Gobind sold his land out of the said Kurah to various persons who continued to pass through the passage out of his originally owned fields. The Plaintiff alleged that he was the owner of the Khasra No. 12/24/1, 24/2, 24/3, 22 and 33 and for that purpose he has been passing through a passage of two Karams wide and lying to the south and out of the killa Nos. 11R/22, 21 and 12R/25 adjoining to the main passage left by the consolidation authorities It was also alleged that the said passage was not only in existence for a long period but this passage was also available to the Plaintiff as a right of easement of absolute necessity as there was no other passage available to the Plaintiff to go to his fields. The Plaintiff apprehended obstruction in the said passage. Hence the present suit

The suit was contested inter alia on the ground that the allegations in the plaint were vague. It was denied that there existed any passage as alleged by the Plaintiff and that the alleged passage was required as an easement of necessity The trial Court came to the conclusion that the Plaintiff is entitled to injunction as prayed for because the Defendant is obstructing the Plaintiff from passing through the said land and it was also found that the Plaintiff has a right of easement by way of necessity as he had no other path to reach his fields. Ultimately, the Plaintiff''s suit was decreed for a passage two karams in width.

In appeal, the learned Senior Subordinate Judge (with enhanced appellate powers) maintained the findings of the trial Court that the Plaintiff had right of easement by way of necessity but he reduced the area from 2 Karams to 1/2 Karam in width. The learned appellate Court was of the opinion that a passage of half a Karam would be the most equitable, just and legal relief. Dissatisfied with the same the Plaintiff has filed the second appeal in this Court.

The Learned Counsel for the Appellant contended that the whole approach of the lower appellate Court is wrong. In the plaint the Plaintiff specifically stated that he required a passage of 2 Karams in width for his use and in the written statement it was never denied as such though the right of easement was denied.

I have heard the Learned Counsel for the parties I am of the considered view that the approach of the lower appellate court is misconceived. The Plaintiff has specifically stated in the plaint that he required a passage of 2 Karams in width for his use in order to reach his fields. As stated earlier this allegation as such was never controverted though it was denied that the Plaintiff had got any right of easement. It is a matter of common knowledge that the Plaintiff in order to reach his fields required a passage through which his carts or bullock carts etc., may also pass and for that purpose passage of 1/2 Karam in width will not serve the purpose The approach of the lower appellate Court that it was never the case set up in the plaint by the Plaintiff nor there was any evidence to this effect, is wrong The Plaintiff has categorically stated in the plaint that he required a passage of 2 Karams in width and also stated so in his evidence but the lower appellate court has misread the pleadings and the evidence of the parties. In this view of the matter the appeal succeeds, the judgment and decree of the lower appellate Court are set aside and those of the trial Court decreeing the Plaintiff''s suit are restored with costs.