Smt. Raj Sondhi and Others vs Indian Oil Corporation and Others

Rakesh Kumar Garg, J.

CM No. 8690-C of 2013

Application is allowed subject to all just exceptions. Document is taken on record.

RSA No. 1464 of 2008 (O & M)

This is plaintiffs'' second appeal challenging the judgments and decrees of the Courts below whereby their suit for possession by removing the encroachment from the land in dispute as detailed in the head note of the suit, with consequential relief for permanent injunction was dismissed.

As per the averments made in the suit, land as detailed in the plaint comprised in Khasra No. 31388/9429/1 measuring 5 kanals 13 marlas, is owned and possessed by the plaintiffs and other co-sharers whereas the land comprised in Khasra No. 9426 and 9431 is a public path which feeds the area of Khasra No. 9324, 9325, 31388/9429/1 and includes the land of plaintiff-appellants. This path connects the suit land with the road. According to the appellants, the said path is in existence since 1945. However, the same has been entered in the revenue record as the ownership of Guriqbal Singh and others (defendants No. 6 to 20 in the suit) but the same is being used by the plaintiff-appellants, the public at large and by the respondents themselves. It is the further case of the appellants that defendant-respondents, who have got their land adjoining the said path on the opposite sides, have encroached upon the said path and the area fully described in the heading of the plaint and shown red and blue and marked as ABCD and EFGH. According to the appellants, despite repeated requests, the respondents have not removed the encroachments. Thus, necessity arose to file the instant suit.

Upon notice, defendants No. 1 to 5 appeared and filed separate written statements whereas the remaining defendants failed to put in appearance despite service. Therefore, they were proceeded against ex parte vide order dated 7.6.2000.

Defendants No. 1 and 2 filed separate written statement raising various preliminary objections. On merits, they denied that the appellants were co-sharers along with others and in possession of Khasra Nos. 31388/9429/1 as alleged in the plaint. It was further denied that the appellants owned the land comprising Khasra Nos. 9426 and 9431. The defendants further denied that there was a public path which feeds the land of the plaintiff-appellants comprised of Khasra Nos. 9324 and 9325 and 31388/9429/1. It was specifically denied that there was any path in existence leading to the road from the land of the plaintiff-appellants. The defendants claimed that land comprised of Khasra No. 9426 measuring 15 marlas was acquired by the Indian Oil Corporation terminal Station, Jalandhar vide notification dated 19.7.1990 and the final award was passed on 27.12.1991 and even, the references u/s 18 of the Land Acquisition Act, has been decided by the Additional District Judge, Jalandhar and thus, the acquired land vests in the Indian Oil Corporation free from all encumbrances. On these averments, defendants No. 1 and 2 claimed that there was no public path in Khasra No. 9426 and that plaintiffs have no concern with Khasra No. 9431. It was further denied that they had encroached upon the portion shown in red and blue colour in the site plan and marked ABCD and EFGH. They further denied that they had encroached upon the path shown as yellow colour in the site plan. Demarcation of the land by the Revenue Authorities was denied. It was further claimed that if any demarcation is done that was at their back and not binding upon them. On the aforesaid averments, dismissal of the suit was prayed for.

Defendants No. 3 to 5 filed a separate written statement submitting that they had purchased 10 marlas 84 square feet of land with specific boundaries vide registered sale 1.8.1997 and earlier to that they had purchased 2 marlas 130 square feet of land vide registered sale deed dated 3.8.1995. They have denied any encroachment upon any public path or land by them. They denied that any path exists in Khasra No. 9426 and 9431 as claimed by the appellants. Demarcation, if any, was also denied. On the aforesaid averments, dismissal of the suit was prayed for.

Replications to the two separate written statements were filed reiterating the averments made in the plaint.

On the basis of the averments made, the following issues were framed by the trial Court:

Whether plaintiffs are owner of the suit property.

Whether the plaintiffs are entitled to possession of the suit property.

Whether the plaintiffs are entitled to injunction prayed for?

Whether the suit is bad for non-joinder of the necessary parties.

Whether this Court has no jurisdiction to decide the suit?

Whether the plaintiffs are estopped from filing the suit by their act and conduct?

Whether the suit is not maintainable in the present form?

Whether the suit is barred by limitation?

Relief.

After appraisal of evidence led before it and appreciating the arguments advanced by the counsel for the parties, the trial Court decided issues No. 1 to 3 against the plaintiff-appellants and issues No. 4 to 8 were decided in their favour and resultantly, the suit was dismissed in view of the findings on issues No. 1 to 3.

Feeling aggrieved from the aforesaid judgment and decree of the trial Court, plaintiffs filed an appeal before the First Appellate Court which was also dismissed vide impugned judgment and decree dated 24.12.2007.

While dismissing the suit, the Appellate Court observed as under:

As far as is concerned the land comprised in Khasra No. 9426, the plaintiffs are left with no right or title therein of any kind as this piece of land has since been acquired by the State of Punjab vide notification u/s 4 and 6 of the Land Acquisition Act, 1994 and State of Punjab has handed over its possession to defendants No. 2 and 3 as well as is obvious from Ex. P1. Second of the grouse of the plaintiff is that the defendants have encroached upon some part of khasra No. 3388/9429/1 shown by letters ABCD and EFGH in the site plan Ex. PJ. Ex. P4 certified extract from the jamabandi qua khasra No. 3388/9429/1 is pressed into service to claim that plaintiffs are co-owners in possession thereof. Since neither of the defendants claim to be in possession of any part of this khasra number nor assert any right therein, it does not matter if other of many other co-owners of this khasra number have not been joined as party to the suit. I cannot subscribe with the observations of the learned trial Court as contained in para 17 of the impugned judgment that the plaintiffs have failed to show in which part of khasra No. 31388/9429/1 they are in possession or that they have not shown their exact possession in the site plan. Even a cursory look at the site plan Ex. P2 and Ex. P3 would reveal that the plaintiffs were required to show the area allegedly encroached upon by the defendants and it is so shown in both of the site plans Ex. P2 and Ex. P3, more especially in blue colour in Ex. P3 and denoted by letters ABCD, EFGH. The plaintiffs were only required to show in their site plans encroachments upon parts of khasra No. 31388/9429/1 and not to show remaining of the land in the same khasra numbers. However, the learned trial Court is still rightly placed while observing that demarcation has not been proved or having been properly carried out. None of the defendants was present at the time the alleged demarcation as it was carried out at their back even if the plaintiffs have averred that demarcation was necessitated following insistence of the defendants for demarcation. As PW4 Kewal Krishan Kanugo has conceded that there was no order for demarcating the land passed from any court and demarcation was carried out on private request of Raj Sondhi and it is also not his case that any one from the side of the defendants was present at the time of demarcation by him.

It is essential for the revenue official demarcating a property denoted by khasra number to first establish a pucca point somewhere near the land in question so as to be able to correctly demarcate it. As is recited in Ex. P1 he had taken railway line as pucca point but in his cross-examination conceded of not being able to tell how many khasra numbers were there under the Railway line. He also was not able to tell the khasra numbers adjoining the Railway line and was also not in a position to tell the khasra numbers falling in between the railway line and the land in dispute. His report can hardly be accepted as a useful piece of evidence and the learned trial court has rightly not relied upon the same as a useful, acceptable or reliable piece of evidence. Hollowness of the report of PW2 Kewal Krishan Kanugo is further brought to the fore by PW2 Anoop Sondhi by admitting that only Khasra No. 31388 was demarcated by him and no other land.

In his cross-examination PW2 Anoop Sondhi has conceded that lands have been acquired by the Land Acquisition collector and its possession has been delivered by Land Acquisition Collector to Indian Oil Corporation.

Testimony of PW3 is just but a repeat version of the case of plaintiffs and is not of much help because all that he has said is just but to echo report of the Kanugo being an attesting witness of demarcation, but once he admits in his cross-examination of not able to tell which khasra numbers was demarcated or from which khasra number measurements were started, the plaintiff cannot derive any advantage from the statement of PW3. He has rendered his statement as useless, further, by saying that he had simply appended his signatures on the report of demarcation and details of demarcation would be known to the Patwari and Kanugo only and that he does not know anything about Ex. P1 and Ex. P2 report and site plan prepared by PW4 Kewal Krishan Kanugo.

The plea of easement set up by the plaintiffs has been demolished by none else but by their own witness PW3 Janak Raj by revealing in his cross-examination that the plaintiffs are still approaching their lands through another rasta going through the abadi area of the village. It is settled principle of law of easement that inconvenience or hardship in having access to its land does not entitle a party to ask for going to be land of others as a right of easement. The testimony of PW3 Janak Raj establishes that other lands of the plaintiff have not become inaccessible and they do have another access thereto. In Matha Injodikkaran Anthony, AIR 1989 NOC 53, the Honourable Kerala High Court has held that necessity must be an absolute necessity and not a convenient mode of enjoyment of property. Existence of alternative pathway however, inconvenient is sufficient to reject claim of easement of necessity. In Harbans Singh and others Vs. Bhajan Singh and others the Honourable Punjab and Haryana High Court has held in a case where plaintiffs were claiming right to use pathway through land of defendants despite having another mode connecting the two villages through a longer route they were not entitled to the relief of easement. Analogy of law so propounded in these judgments embrace case of the plaintiffs with all of their force.

Nothing else has been argued before me on behalf of the appellants.

Still not satisfied, the plaintiff-appellants have filed the instant appeal submitting that the following substantial questions of law arise in this appeal for consideration of this Court:

i. Whether the right of the owners to get the possession of their land can be denied on the basis of surmises and conjectures?

ii. Whether the Lower Courts have not given the findings on the basis of the evidence on record?

iii. Whether the action of the Government officials in demarcating the land of the owners can be disregarded without any substantial reasons?

Challenging the aforesaid judgments and decrees of the Courts below, learned counsel for the appellants has vehemently argued that it has been proved on record that the land comprised in Khasra No. 31388/9429/1 is owned by the appellants and the part thereof shown red in the site plan and mark-ABCD alongwith Rasta comprised in Khasra No. 9425 is encroached by respondents No. 1 and 2 and similarly, portion mark-EFGH and Rasta is encroached by respondents No. 2 to 10. According to the learned counsel for the appellants, the said encroachment is duly proved from the demarcation report Ex. P1 and the site plan Ex. P2 prepared by the Revenue Authorities. Learned counsel has further argued that the aforesaid documents have been proved as the same are certified copies obtained from the original demarcation file produced and the same was done after thorough verification in the presence of the local persons. Even PW-3, Janak Raj appearing as witness has proved that demarcation was done as per rules and PW-4 Kewal Krishan Kanungo, who appeared in witness box, has proved the report of the site plan and thus, the judgments and decrees of the Courts below are liable to be set aside.

On the basis of the aforesaid arguments, counsel for the appellants has submitted that the following substantial question of law arises in this appeal:

Whether the findings of the Courts below are perverse and thus, are liable to be set aside.

I have heard learned counsel for the parties.

However, it may be noticed that the demarcation report Ex. P1 and the site plan Ex. P2 have been discarded by the Courts below holding that the Revenue Authorities while giving the report has not fixed the pucca points as per the standing orders of the Financial Commissioner of Punjab. Moreover, none of the defendants was present at the time the alleged demarcation was carried out. Moreover, PW-4 Kewal Krishan Kahungo has stated that there was no order passed by any Court for demarcating the land and the same was carried out on a private request of the appellants. It may further be noticed that the original demarcation report was never brought on the Court file and only certified copy of the said report was brought on record. No permission of the Court was taken by the appellants to lead such secondary evidence. Even no witness appeared in the Court to prove the certified copies. Even, PW-4 could only prove the original report prepared in his hand but admitted that he had not prepared the certified copies. In these circumstances, undoubtedly, the report of the Local Commissioner and the site plan have not been duly proved as per law and even rightly discarded by the Courts below.

In fact, both the Courts below on appreciation of evidence have recorded a concurrent finding that the appellants have failed to prove any encroachment of their land. The aforesaid finding is essentially a finding of fact. It could not be brought before this Court as to how the aforesaid findings are incorrect. Even the Local Commissioner was appointed by this Court who has also reported against the appellants. Though assuming for the sake of argument that report of the Local Commissioner appointed by this Court is not correct, yet the fact remains that findings of the Courts below are against the appellants and there is nothing on record to suggest that the same are incorrect. Dismissed.