JUDGMENT
M.L. Singhal, J.
1. Chhotu (dead) son of Ramji Lal represented by his legal heirs Rajinder Singh, Ram Saroop, Nafe Singh sons and Krishna Kumari daughter resident of village Kharbala, Tehsil Hansi, filed suit for declaration against Smt. Chahi widow of Mathura son of Tokha, Hari Kishan son of Mathura son of Tokha, resident of village Kharbala, Tehsil Hansi and Gram Panchayat of village Kharbala through its Sarpanch Sangat Ram to the effect that he (Chhotu) and others inhabitants of the village have been using the land measuring 35 kanals 10 marlas as detailed in the heading of the plaint shown as red in the plan attached thereto Ex. P-1, situated within the phirni of the village since the village was founded and the entries recorded in the revenue record so far as its ownership goes are wrong and are liable to be corrected and further the auction of the land held by the Custodian was illegal, null and void, ab initio, against facts and without jurisdiction and so is the order of the Deputy Secretary (Rehabilitation) Department, Haryana dated 19-4-1978 passed in appeal (Bhartu v. Smt. Chahi etc.) and the same is not binding on his rights and by way of permanent inj unction restraining Smt. Chahi and Hari Kishan-defendants Nos. 1 and 2 from obstructing in any manner whatsoever his right to use that land or pass through that land by raising fence or construction.
2. It was alleged in the plaint that the land in suit is gair mumkin ‘Johar’ (gair mumkin pond) and gair mumkin rasta and is lying vacant/unsown at the spot. He and other inhabitants of the village are using the land in suit for their common purposes since village was founded. Land in suit is not in any one’s ownership or possession. Six streets of the village pass through this land which have been shown in the site plan Ex. P-1 attached to the plaint. He and all other inhabitants of the village pass through these streets. Their cattle pass through these streets and they after passing through these streets/this land reach their fields, pond and well. In some part of the land in suit, there is a big pond in which he and the other inhabitants of the village water their cattle. In other portion of this land his and the cattle of the other inhabitants of the village stand in wait for their turn of water. A bigger portion of the land is being used as a grazing ground for the cattle. He and the other inhabitants of the village bake dung cakes and have set up dung hills there. His sheep and gotas stand in this land and graze grass. People of the village collect dung cakes from this land. Under the orders of the Government of Haryana, Gram Panchayat has set up manure pits in this land in which he and the other inhabitants of the village dump their dung and manure. He and the other inhabitants of the village excavate earth from the point and mould bricks. They set up kilns in the land in suit and bake bricks. He and the other inhabitants of the village have been using the land in suit without any let or hindrance since the village was founded. The land in suit belongs to the Gram Panchayat and is a gair mumkin johar.
3. Defendants Smt. Chahi and Hari Kishan conspired with the Rehabilitation Authorities and got the land in suit auctioned in favour of Smt. Chahi-defendant from the Rehabilitation Department. Objections were filed against the auction order but they were rejected. Appeal was filed before the Deputy Secretary (R) which was also dismissed on 19-4-1978. Entry recorded in the roznamcha-waqe-ati that possession had been delivered was a fake entry. In fact, no physical possession was delivered to the defendants. Tehsildar (Sales) had no authority to issue warrant of possession. It was further alleged that they had acquired right of easement to pass through those streets/land. Some people of the village filed objections to the auction, Defendants Nos. 1 and 2 got these objections dismissed in collusion with the Rehabilitation Authorities. Defendant Nos. 1 and 2 got the appeal filed by them dismissed which was again the result of collusion between defendants Nos. 1 and 2 and the said appellants. That appeal was dismissed by the Deputy Secretary (Rehabilitation) Department, Haryana. Defendants Nos. 1 and 2 are influential persons. They are in league with certain members of the Panchayat. They want to raise fence and construction, and thus to deprive them of the use of those streets and passage.
4. Defendants Nos. 1 and 2 contested the suit of the plaintiff urging that the land in suit never belonged to the Gram Panchayat. It belonged to the muslims who migrated to Pakistan. On their migration to Pakistan, this land vested in the Custodian. Smt. Chahi purchased the land in suit on 12-9-1977 in auction from the Custodian. On 12-12-1997 a registered sale deed was executed in favour of Smt. Chahi-defendant. Warrant of possession was issued by Tahsildar (sales) in her favour. She got actual physical possession and the fact of delivery of possession was recorded in the roznamcha-waqe-ati dated 18-7-1977. She was in possession since long before 18-7-1977. It was denied that the inhabitants of the village were using this land for common purposes. It was denied that any street was passing through this land. It was denied that there was any passage through this land. It was urged that she was dug a small pond for her own use in this land. It was denied that the people of the village water their cattle in that pond. It was denied that the people of the village bake dung cakes or they have set up dung hills there. She is the absolute owner of the land in suit on account of its purchase by her from the Custodian. At the spot, she alone is in possession. Defendant No. 2-Hari Kishan has nothing to do with the land in suit. Defendant No. 3-Gram Panchayat has also nothing to do with the land in suit.
5. On the pleadings of the parties, the following issues were framed by the trial Court :–
1. Whether the plaintiffs and the other villagers have been using the suit land as alleged in the plaint, if so, its effect? OPP
2. Whether the plaintiff has acquired right of easement over the suit land? OPP
3. Whether the alleged auction on behalf of Rehabilitation Department in favour of defendant No. 1 is wrong, illegal, without jurisdiction and mere paper transaction and as such not binding on the rights of the plaintiff? OPP
4. Whether the suit is bad for non-joinder of necessary party because Rehabilitation Department has not been joined as a party? OPD
5. Whether the civil Court has no jurisdiction to try the present suit? OPD
6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD
7. Whether the suit is not maintainable in the present form? OPD
8. Whether the defendants are bona fide purchaser with due consideration? OPD
9. Whether the plaintiff has no locus to file the present suit? OPD
10. Whether the Gram Panchayat, Kharbala has not been properly sued in the present suit, if so, its effect? OPD
3A. Whether Tehsildar (sales) was competent to issue warrant for possession in favour of defendant No. 1? OPD
3B. Whether the physical possession of the land in dispute was validly delivered to the defendants? OPD
3C. Whether the alleged delivery of possession is without jurisdiction and mere paper transaction? OPP
11. Relief.
6. Vide order dated 24-8-1982 Subordinate Judge IInd Class, Hansi dismissed the plaintiffs suit in view of his finding that this land was an evacuee property, it was owned by the Custodian; it was purchased by Smt. Chahi in auction from the Custodian; the sale was confirmed in the name of Smt. Chahi for Rs. 11,500/-. This land falls in between the abadi and the phirni of the village. The possession of the land was delivered to Smt. Chahi. Plaintiffs’ appeal against that sale was dismissed by the Deputy Secretary (R)-cum-Settlement Commissioner, Haryana vide order dated 19-4-1978. It was found that there was no question of the plaintiff acquiring any right of easement on this land. It was found that this land was not being used by the plaintiffs and the other inhabitants of the village for any purpose whatsoever. It was found that Tehsildar (Sales) had power to effect the sale of this land through public auction. He had the power to issue warrant of possession. It was found that the plaintiffs, one Nihala and one Dhup Singh PWs were present at the time of auction and their presence was duly marked. Auction was held at which this land was sold to Smt. Chahi. About 150 inhabitants of the village filed appeal against the order of sale and for setting aside the auction, which was dismissed. It was found that the plaintiffs were not in possession of this land on the date of filing the suit, as such this suit was not maintainable in this form. Smt. Chahi was found to be bona fide purchaser of this land for consideration.
7. Not satisfied with the judgment and decree dated 24-8-1982 of the Subordinate Judge, IInd Class, Hansi, legal heirs of Chhotu went in appeal. Appeal was allowed by the Additional District Judge, Hissar vide order dated 18-1-1986 in view of his finding that this land was being used for the common purposes since times immemorial, even before the partition of the country. It was found that there is pond in the land in suit. There are dung hills/kilns. It was found that the streets pass through this land. It was found that the sale of this land by the Custodian in favour of Smt. Chahi was of no consequence, when this land was being used by the inhabitants of the village for common purposes and is vesting in the Gram Panchayat. It was found that the plaintiff and the other inhabitants of the village had been using this land since times immemorial and they had acquired the right of easement on this land. Auction of the land held by the Rehabilitation Department in favour of Smt. Chahi-defendant was held to be wrong and illegal.
8. Not satisfied with the judgment and the decree of the Additional District Judge, Hissar dated 18-1-1986. Smt. Chahi-defendant has come up in appeal to this Court.
9. CM No. 971-C of 1999 filed under Order 41, Rule 27, CPC is allowed. Through this CM Smt. Chahi-appellant seeks to produce by way of additional evidence certified copy of judgment passed by the Sub-Judge 1st Class, Hansi on 31-8-1990 in Civil Suit No. 6-C of 1986 titled Smt. Chahi v. Ram Chander and another for permanent injunction. She seeks to produce certified copy of the judgment dated 21-12-1981 passed by Civil Judge 1st Class. Hansi in Civil Suit No. 271 of 1978 titled Jugti Ram v. Hari Kishan and Smt. Anchachi widow of Mathura and also copy of the judgment of the Additional District Judge, Hissar dated 15-11-1983 dismissing the appeal. She further seeks to produce certified copy of the order dated 29-7-1996 of Civil Judge (Sr. Division), Hansi passed in Civil Suit No. 106-C of 1996 titled Smt. Chahi v. Ram Kishan and others,
10. In this CM, the appellant has stated that the production of the aforesaid certified copies of the judgments/orders is material for the just decision of the controversy involved here in this civil suit.
11. In the interest of justice, appellant is allowed to bring on record, certified copies of the aforesaid judgments/orders.
12. Jugti Ram filed Civil Suit No. 271 of 1978 against Hari Kishan son of Mathura and Smt. Anchahi widow of Mathura son of Tokha for permanent injunction restraining them from interfering in his possession of the land comprised by Khasra No. 185/8(7-0) and 13(7-0) situated in the revenue estate of village Kharbala on the allegations that he is in possession as owner of the land for the last 50 years and has constructed Gher over this land. There are baras/bitoras in the Gher and brick-kiln. Hari Kishan and Smt. Anchahi have no concern. Hari Kishan and Smt. Anchahi contested this suit saying that Smt. Chahi is the sole owner in possession vide sale certificate dated 12-9-1977 issued the Custodian in her favour. On 12-12-1977 sale certificate was registered by the Sub-Registrar, Hansi. The ownership and possession of the plaintiff was denied. Subordinate Judge 1st Class, Hansi dismissed the plaintiffs suit, in view of his finding that the Custodian was the owner of this property who sold the same to Smt. Anchahi (Smt. Chahi). Sale certificate was issued to her which was registered by the Sub-Registrar. Hansi. Possession was delivered to Smt. Ahchahi. She was recorded as in possession in jamabandi for the year 1977-1978 and khasra girdawari for Kharif 1978 to Rabi 1980. Jugti went in appeal which was dismissed by the Additional District Judge, Hissar on 15-11-1983. It was found that this land vested in Custodian in 1952-53. After consolidation Jugti got land in lieu of the land owned by him prior to consolidation, and in the land allotted to him, the land in suit was not included. This land was purchased by Smt. Anchahi from the Custodian. Mutation was entered in her name on 11-2-1978. Sale certificate was issued in her favour. Possession was given to her on 18-7-1977. In jamabandi for the years, 1958-59, 1962-63, 1967-68 and 1972-73, the land was shown in the ownership and possession of Custodian. In the jamabandi for the year, 1977-1978 the land of Khasra No. 185/3/8/13/1819/20/1 was shown as gair mumkin bitaura in the later revenue entries for the years, 1977-78, 1979-80, the land was shown in the ownership and possession of Anchahi. The delivery of possession of the land to Smt, Chahi was not, paper transaction.
13. In Civil Suit No. 6-C of 1986 titled Smt. Chahi v. Ram Chander and Bhichha, Smt. Chahi claimed permanent injunction against Ram Chander and Bhichha restraining them from interfering with her possession and ownership of land measuring 35 kanals 10 marlas ibid. Ram Chander conceded her claim vide his statement recorded on 8-9-1988 by the Subordinate Judge, 1st Class, Hansi. Bhichha-defendant alone contested the suit of Smt. Chahi. It was alleged by Smt. Chahi that this land vested initially in the Custodian. In open auction, she purchased this land 12 years ago. After confirmation of the sale, she deposited the sale price and the Government put her in possession. Since then she has been in continuous possession of this land as owner. She has built her house on this land. She has set up bitoras, cattle house etc. On the remaining land she is sowing crop. Bhichha contested this suit. Subordinate Judge 1st Class, Hansi decreed her suit in view of his finding that she purchased this land from the Custodian. She was put in possession and she is in possession.
14. It was submitted by the learned counsel for the appellant that Bhichha did not go in appeal against the judgment and decree of the Sub-Judge 1st Class, Hansi dated 31-8-1990. As such, the judgment and decree passed by the Sub-Judge 1st Class, Hansi became final. It was submitted that Ram Chancier and Bhichha are the collaterals of Jugti. They rose against Smt. Chahi after Jugti had failed before Sub-Judge, 1st Class, Hansi, as also before Additional District Judge, Hissar, It was further submitted that Smt. Chahi filed Civil Suit No. 106-C of 1996 (Smt. Chahi v. Ram Kishan and others) for permanent injunction restraining them from interfering in her possession over the land measuring 3 5 kanals lOmarlas. Ram Kishan etc. made application under Order 1, Rule 10, CPC saying that suit filed by Smt. Chahi etc. regarding this property is already pending and as such this suit be stayed. Civil Judge (Jr. Division), Hansi stayed this suit.
15. On the strength of this evidence, learned counsel for the appellant submitted that the filing of this suit by Chhotu was abuse of the process of the Court when the point in issue had already been decided. It was submitted that Jugti, Chhotu, Ram Chander, Bhichha etc. are all pitted against Smt, Chahi, reason being they are not able to reconcile to the purchase of the land by Smt. Chahi at an auction from the Custodian and her possession thereof. After Jugti had failed to stall her ownership and possession, Ram Chander came forward and attempted to interfere with her possession and ownership. To stall their attempt she filed suit and her suit was decreed. Chhotu opened front against her in February, 1978. Jugti had opened front against her in April, 1978. Ram Chander and Bhichha attempted to open front against her in 1985-1986. In the year, 1996, Smt. Chahi had to file suit to stall the attempt of Ram Kishan etc. at interfering with her possession and ownership. Her suit was stayed in view of the pendency of this litigation, which was initiated by Chhotu in the year, 1978.
16. Chhotu-plaintiff s case is that he and the other inhabitants of the village have been using the suit land measuring 35 kanals 10 marlas since times immemorial and they have acquired right of easement. His case is that this land is situated between shamilat and phirni. There is pond in this land, There are gair mumkin rastas in this land. Six streets of the village pass through this land. There are bitoras in this land. They excavate the earth from the pond and mould bricks and bake them there. People bring their cattle to this pond. Cattle take water there. He and the other inhabitants of the village are using this land for these purposes. This land vests in the Gram Panchayat. Custodian had no right to auction this land. Auction of this land by the Custodian in favour of Smt. Chahi vests her with no right, title or ownership in this land. He stated that prior to the partition of the country this land did not belong to muslims. Sh. Ram Asra, Naib Tehsildar, Hansi who was appointed as local commissioner stated that 6/4 streets only touch the land in suit. He has not stated that the inhabitants of the village pass through the land in suit to reach the village pond or well and there is no other street to pass through the land in suit to reach the village pond. Sh. Ram Asra, Naib Tehsildar PW-5 stated in his cross-examination that in the village there were muslims and the land in suit was owned by the Custodian. He further admitted in cross-examination that when they came to know that the disputed land was to be allotted to the Harijans, about 150 persons went in appeal which was dismissed and it was decided in favour of Hari Kishan who is son of Smt. Chahi. Against the decision of the appeal in favour of Hari Kishan, they did not file any further appeal. In Jamabandi Ex. PA for the year, 1958-1959, land in suit is shown to be Araaji matrooka bila alat maqbooza custodian. In the jamabandi for the year, 1967-1968 Ex, PB land in suit is shown as Araaji matrooka bila alat maqbooza custodian. Some khasra numbers of the land in suit are shown to be gair mumkin bitoras while some khasra numbers or portion thereof are shown to be johar (pond). In the jamabandi for the year 1972-1973 Ex. D-4 the land in suit is shown to be Araaji matrooka bila alat maqbooza custodian.
17. There is presumption of truth attached to jamabandi entries under Section 44 of the Punjab Land Revenue Act. There is no evidence on record to show that this land belongs to the Gram Panchayat. There is rather resolution Ex. D-1 by the Gram Panchayat in which the Gram Panchayat conceded this land to be the ownership of the Custodian. In this resolution Ex. D-1 passed by the Gram Panchayat at item No. 68 dated 19-12-1979, it is recorded that towards the East of their village, there is custodian land which measures about 35 kanals comprising 185/3-8-13-19 and 20 which was auctioned by the Government and at auction, it was purchased by Smt. Chahi for Rs. 11,500/-. This resolution militates against the alleged claim of the Gram Panchayat to the ownership of this land. In this resolution, it is further recited that there are six streets of the village passing through this land. This land lies between the abadi and the phirni of the village. There is no other passage for reaching the fields or bringing water than through this land and, therefore the Gram Panchayat may acquire this land on payment of reasonable price for this land. There is no other land where the Panchayat could build latrines for the use of the women. There is no land with the Panchayat which could be allotted to the harijans in the shape of plots. There is no land where veterinary hospital and the panchayat-garh could be set up. There is a pond in this village for the use of the cattle. In Aksh-chhajra Ex. D-3 there are no streets shown passing through this land. This land was auctioned by the Custodian. At auction, this land was purchased by Smt. Chahi, Sale was confirmed by the Deputy Secretary (Rehabilitation)-cum-Settlement Commissioner, Haryana vide order dated 24-1-1977. Bhartu etc. went in appeal which was dismissed by the Deputy Secretary (R), Haryana vide order dated 19-4-1978. Warrant of possession was issued. Possession of the land was delivered to Smt. Chahi. There is report recorded in the roznamcha waqe-ati Ex. D-2 dated 18-7-1978 showing the delivery of the possession of the land to Smt. Ghahi. The possession of this land was delivered to Smt. Chahi through demarcation. In Ex. D-5 khasra Girdawri this land is shown to be under johar/bitoras and therefore the delivery of possession through demarcation could be the only mode through which possession could be delivered.
18. The land in suit was lying un-cultivated. If on finding that the land in suit was lying vacant belonging to the Custodian and johar and bitoras were set up, that does not mean that the land in suit went out of the possession of the Custodian. Use of johar by the people of the village does not vest them with any right of easement as there is no evidence regarding the duration of the time since when they are using this johar. There is no evidence that there is any passage through this land. If people pass through this land finding it uncultivated that does not mean they have any right of easement to pass through this land. There is no evidence that they have any easement of necessity. The question of easement of necessity will arise if there is no other passage at all for them to reach their fields or water their cattle. There should be animus also to acquire the right of easement.
19. There is Section 25 of the Limitation Act for acquiring right of easement. Section 25 of the Limitation Act reads as follows :–
“Acquisition of easements by prescription-
(1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or water-course or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, water-course, use of water or other easement shall be absolute and indefeasible.
(2) Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
(3) Where the property over which a right is claimed under Sub-section (1) belongs to the Government that sub-section shall be read as if for the words “twenty years” the words “thirty years” were substituted.
Explanation.– Nothing is an interruption within the meaning of this section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.
20. Easement has been defined as follows in the Easements Act, 1882 :
“4. “Easement” defined– An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.”
21. Section 15 of the Easements Act, 1882 deals with acquisition of easement by prescription, which reads as under :
“15. Acquisition by prescription — where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years.
and where support from one person’s land or things affixed thereto has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years,
and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years,
the right to such access and use of light or air — support or other easement shall be absolute,
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
Explanation I– Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II– Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.
Explanation III– Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV– In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this section belongs to the Government, this section shall be read as if, for the words “twenty years” the words “thirty years” were substituted.
22. In this case the requirements for acquiring easement by prescription or easement of necessity have not been fulfilled. Smt. Chahi purchased this property bona fide for consideration from the custodian. It was an evacuee property. Sale in her favour was confirmed. She was put in possession. Plaintiff could not be allowed to set at naught her ownership of this land simply because he says that he and the other inhabitants of the village, pass through this land and water their cattle in the johar lying in this land. Oral evidence could not be preferred in the face of documentary evidence, which suggests that there are no streets passing through this land. There is no passage passing through this land. There is no evidence that the plaintiff exercised the alleged right of easement for a period of 30 years, it being an evacuee property.
23. Plaintiff should have proved that he and the other inhabitants of the village had set up bitoras in this land prior to 1947. He should have proved that johar/bhata etc. had also been in existence since before the year, 1947. He should have produced some jamabandi which was in vogue prior to the year, 1947 so that it could be seen whether this land was gair mumkin johar then also.
24. For the reasons given above, I am of the opinion that Smt. Chahi is the owner of this land on account of her purchase from the custodian for consideration. She was put in possession of this land. There is no right of easement in the plaintiff or other inhabitants of the village on this land. Sale in favour of Smt. Chahi conducted by the Custodian Department was valid, legal and proper. Gram Panchayat was not owner of this land. This land never vested in the Gram Panchayat, Appeal succeeds and is accepted and judgment and the decree passed by the Additional District Judge, Hissar dated 18-1-1986 are set aside and those passed by Sub-Judge IInd Class, Hansi dated 24-8-1982 are restored. In consequence, suit filed by Chhotu is dismissed. No order as to costs.