Gaje Singh v. Rameshwar & Ors.

CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Hari Om Attri, Advocate for the appellant. Mr. B.S. Bairagi, Advocate for the caveator-respondent No.1. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 5343-C of 2009 This application under Section 41 Rule 27 read with Section 151 of the Code of Civil Procedure has been moved seeking permission to lead additional evidence, by way of mutation No. 1034 dated 12.8.1960. The plaintiff / appellant approached the consolidation authority for grant of passage through the land of defendant / respondents. It was during the pendency of said proceedings, that the plaintiff filed a suit for injunction restraining the defendant / respondents from interfering in use of passage by not disclosing, that on an earlier occasion similar suit filed by his father had been dismissed. It is further pertinent to notice, that the application before the R.S.A. No. 1812 of 2009 2 consolidation authority was moved by the applicant / appellant after he had suffered a statement in the Hon'ble High Court, where the revision against order of temporary injunction was pending.

The applicant / appellant has been non-suited by both the Courts below holding, that he was not entitled to injunction prayed for. The evidence sought to be produced by way of additional evidence is not the one which was not within the knowledge of the plaintiff / appellant or which could not be found with due diligence. The evidence is also not relevant for pronouncing the judgment in the case. The application to lead additional evidence by placing on record the mutation sanctioned in the year 1960, therefore, cannot be accepted under Order 41 Rule 27 of the Code of Civil Procedure. There being no merit in the application, it is ordered to be dismissed. C.M. No. 5341-C of 2009 For the reasons stated in the application the delay of 13 days in filing the appeal is condoned. R.S.A. No. 1812 of 2009 The plaintiff / appellant has challenged the judgment and decree dated 10.1.2009, passed by the learned Courts below dismissing the suit filed by the plaintiff / appellant, seeking prohibitory and mandatory injunction.

The plaintiff / appellant sought injunction against the defendant / respondents on the plea, that his right to use passage through the land of defendant / respondents could not be interfered with. R.S.A. No. 1812 of 2009 3 The learned Courts below on appreciation of evidence have recorded a concurrent finding of fact, that the plaintiff / appellant is not entitled to relief as he had no legal or easementary right to use the passage through the land of defendant / respondents. The learned Courts below have also held, that the plaintiff has not come to Court with clean hands, as he concealed the material facts regarding dismissal of similar suit filed earlier by his father, though the passage claimed was from different khasra numbers. Mr. Hari Om Attri, learned counsel appearing on behalf of the appellant contends that the appeal raises the following substantial question of law :-

Whether the judgment and decree passed by the learned Courts below is outcome of misinterpretation of law regarding right of easement by necessity ? The learned counsel for the appellant in support of the substantial question of law vehemently contends, that the learned Courts below committed an error in rejecting the plea of easement. The learned Courts below, as per the contention of the learned counsel for the appellant, were not right in rejecting the plea of easement of necessity by holding, that the plaintiff has failed to plead or prove the easement right, claimed by him as nothing was brought on record to show, that the passage was used by the plaintiff / appellant for more than 20 years. The plea of the learned counsel for the appellant cannot be accepted. The plaintiff / appellant did not set up plea of the right of R.S.A. No. 1812 of 2009 4 easement, but merely filed a suit for injunction restraining the defendants / respondents from interfering in use of passage. The passage actually did not exist, as per proved facts. The learned Courts below have recorded a concurrent finding of fact on appreciation of evidence, that there was no passage in existence. The learned Courts below have also held, that the similar suit filed by the father of the plaintiff / appellant stood dismissed and the decree had attained finality. It may be noticed that the plaintiff / appellant has already claimed the relief for grant of passage by moving the authorities under the Consolidation Act. The suit filed, therefore, was rightly held to be misconceived and not maintainable. The substantial question of law raised is thus answered against the appellant. No merit. Dismissed.

6.5.2009 'sp' ( VINOD K. SHARMA ) JUDGE