If property belongs to Government for acquisition of easementary right by prescription user of “30 years” is required.

It is settled principle of law that what has not been conferred in the plaint cannot be proved. Only right of easement by way of prescription has been pleaded, alleging that Plaintiff was using the land of Plot No. 164 for 20 years. It is pertinent to mention here that at the end of Section 15 of Indian Easement Act, 1882, which pertains to acquisition by prescription, it is specifically mentioned that if the property, over which a right is claimed, belongs to the Government, the word ’20 years’ shall be read as ’30 years’. As such, in respect of a Government land mere user for 20 years does not confer any easementary right by way of prescription to the Plaintiff, as he has nowhere pleaded that he used the land for 30 years or more.

UTTARAKHAND HIGH COURT

SINGLE BENCH

( Before : Prafulla C. Pant, J )

HANS RAJ (SINCE DECEASED) THROUGH L.R. — Appellant

Vs.

DEWAN SINGH (SINCE DECEASED) THROUGH L.RS. AND ANOTHER — Respondent

Second Appeal No. 551 of 2001

Decided on : 18-06-2007

Civil Procedure Code, 1908 (CPC) – Section 100, Section 80
Easements Act, 1882 – Section 15
Uttar Pradesh Reorganisation Act, 2000 – Section 35
Indian Easement Act, 1882 – Section 15 – Easement by prescription

Counsel for Appearing Parties

N.S. Negi, for the Appellant; J.C. Belwal, for Respondents Nos. 1/1 to 1/8 and Sudhir Kumar, for the Respondent

JUDGMENT

Prafulla C. Pant, J.—This appeal, preferred u/s 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 07-08-1981, passed by learned Civil Judge, Nainital in Civil Appeal No. 17 of 1981, whereby the said appeal was dismissed and judgment and decree dated 10-02-1981, passed by llnd Additional Munsif, Haldwani, in Civil Suit No. 17 of 1978, dismissing the suit, is affirmed.

2. Heard learned Counsel for the parties and perused the record.

3. Brief facts of the case are that Plaintiff’s (Appellant) house is situated in Plot No. 168-Aand Plot No. 169 of Village Khatima, Pargana Bilari, Tehsil Khatima. It is pleaded in the plaint that Plot No. 164 falls between the house of the Plaintiff and public road, which leads to Pilibhit. It is further pleaded that land of Plot No. 164 is KHANTI (KACHACHA land, adjoining the motor road). Plaintiffs case is that said land is being used by him for 20 years, without interruption, and doors of his house open towards said land. It is alleged that Defendant No. 1 Dewan Singh encroached upon KHANTI land over an area of 20′ x 25′ and raised the constructions, as such the Plaintiffs right is obstructed towards the public road. It is alleged the Defendant No. 1 Dewan Singh, raised constructions without getting map approved from the Municipal Board. With these pleas, Plaintiff filed suit for injunction against the Defendant No. 1 Dewan Singh for removal of construction and directing him not to interfere with the rights of the Plaintiff.

4. Defendant Dewan Singh contested the suit before the trial court and filed his written statement, in which it is admitted that Plot No. 164 belongs to the State. However, it is pleaded on behalf of the said Defendant that a lease was granted in favour of Defendant No. 1 Dewan Singh, by the Government, and as such constructions raised by him are not liable to be removed from the land in dispute. Legal pleas are also raised in the written statement, whereby it is stated that suit is bad for non joinder of State. (State is latter on impleaded by the Plaintiff as Defendant No. 2). It is further pleaded by Defendant No. 1 Dewan Singh that suit was under valued and court fee paid is insufficient. Defendant No. 2 State of Uttar Pradesh, who was impleaded in array of parties latter on also filed its written statement and supported the case of Defendant No. 1 Dewan Singh.

5. On the basis of the pleadings of the parties, following issues are framed by the trial court:

(i) Whether the Plaintiff had been in possession for more than 20 years on the land in suit ?

(ii) Whether Defendant is the lease holder of Plot No. 164 ?

(iii) Whether the site plan of the Defendant had been sanctioned by the Municipal Board or P.W.9, if not, its effect ?

(iv) Whether the Plaintiff has any easementary right over Plot No. 164 ?

(v) Whether the doors of the house of Plaintiff have been closed as a result of disputed constructions ?

(vi) Whether the Defendant has completed the construction at the disputed site ?

(vii) Whether the suit is under valued and court fee paid is insufficient and whether the suit is beyond the pecuniary jurisdiction of the Court of Munsif ?

(viii) Whether State of Uttar Pradesh is a necessary party in the suit ?

(ix) To what relief, if any, is the Plaintiff entitled ?

(x) Whether the Defendant No. 1 has raised constructions in the land, which is part of road?

(xi) Whether the suit is maintainable ?

(xii) Whether the suit is defective on account of non-service of notices u/s 80 of Code of Civil Procedure, upon the State of Uttar Pradesh prior to the institution of suit ?

(xiii) Whether the suit is barred by principles of estoppel and acquiescence ?

6. The trial court after recording the evidence and hearing the parties found that there is a lease in favour of Defendant No. 1 Dewan Singh, who has raised the disputed constructions over Plot No. 164. It is further found that the Plaintiff was using a part of Plot No. 164, as RASTA Land to reach the public road. However, no easementary right was found proved by the Plaintiff, but it is found established that the doors of Plaintiff’s house are closed as a result of disputed constructions. Issue No. (vi) is also decided in affirmative holding that the constructions of the Defendant are complete. However, issue on the plaint of valuation of court fee is decided in negative. Since the State of Uttar Pradesh was impleaded during pendency of suit, as such issue No. (viii) was decided in negative. Issue No. (x) was decided in negative, holding that land, on which the Defendant raised constructions is not part of the road. The other issues are also decided against the Plaintiff and the suit was dismissed. Aggrieved by said judgment and decree dated 10-02-1981, passed by the trial court in Civil Suit No. 17 of 1978, Civil Appeal No. 17 of 1981 was filed before the lower appellate court. Learned Civil Judge (lower appellate court), after hearing the parties dismissed the appeal and affirmed the judgment and decree passed by the trial court. Hence this second appeal was filed by the Plaintiff before Allahabad High Court on 12-11 -1981, which was admitted on 8-12-1981 on following substantial question of law:

Whether the courts below erred in refusing the Plaintiff’s claim for removal of constructions, raised by Defendant No. 1 even though it appears to be constructions on the highway adjoining to of Plaintiff’s property.

This appeal is received by transfer from Allahabad High Court to this Court u/s 35 of the UP. Reorganization Act, 2000, for its disposal.

7. Answer to substantial question of law: Admittedly, the Plaintiff’s house is situated on his land in Plot No. 168-A and 169 of Village Khatima. It is also not denied that the disputed constructions were raised by Defendant No. 1 Dewan Singh over Plot No. 164, which was between the plots owned by Plaintiff and the public road, leading from Khatima to Pilibhit. It is also not disputed between the parties that Plot No. 164 is owned by the State. From the evidence on record, it has been found concurrently by the courts below that the Defendant raised his constructions after he was granted lease over a part of land of Plot No. 164. This Court cannot interfere in said finding of fact nor that point is pressed before this Court that the lease was not granted by the State in favour of Respondent No. 1 Dewan Singh. What is in dispute is easementary right of the Plaintiff over the land of Plot No. 164. Both the courts below have found that the Plaintiff failed to establish his easementary right by way of prescription. It is further observed by the courts below that Plaintiff has not pleaded a case of right of easement by way of necessity. It is settled principle of law that what has not been conferred in the plaint cannot be proved. Only right of easement by way of prescription has been pleaded, alleging that Plaintiff was using the land of Plot No. 164 for 20 years. It is pertinent to mention here that at the end of Section 15 of Indian Easement Act, 1882, which pertains to acquisition by prescription, it is specifically mentioned that if the property, over which a right is claimed, belongs to the Government, the word ’20 years’ shall be read as ’30 years’. As such, in respect of a Government land mere user for 20 years does not confer any easementary right by way of prescription to the Plaintiff, as he has nowhere pleaded that he used the land for 30 years or more.

8. Learned Counsel for the Appellant argued that Defendant had no right to raise the construction over roadside land. It has come on record that the land, over which disputed constructions are raised, are not part of the road, though the same is part of Plot No. 164, belonging to the Government, adjoining to the road. In the written statement, filed on behalf of the State (Respondent No. 2), it is specifically pleaded that the land, in respect of which lease is given to the Defendant, though KHANTI land, but not part of the public road. As such, this Court is of the view that the courts below have committed no error of law in dismissing the suit and the appeal. Accordingly the substantial question of law stands answered.

9. For the reasons, as discussed above, this second appeal is liable to be dismissed. The same is dismissed. No order as to costs.

(2008) 1 UC 350