Path to house through agriculture land
I am a defense person and my native place is at Sirsa, Haryana. My house is situated in a village in my agriculture land isolated to village. I was using a path which is under the ownership of the other person and using it since appx 35-40 year ago.The mentioned land through which path is crossing is under the ownership of other parson earlier was under the ownership of my grandpa but he exchanged it with the that person in 1992 through a court decree. It was found that the other person mentioned in exchange that particular land was exchanged with the plot situated in the boundary of village.(plot is of non registered type). Also, In the revenue entries the entire land is under the ownership and possession of third person. The prices of land is under hike, in the greed of fetching more he dismantle the path and file a civil suit under section 39 rule 1 & 2. Now my family is confine to my house because there is no other path available. He is very head strong person. we defend the case and Lower court pass a order giving direction that palintiff application is allowed which shall subject to the condition that the plaintiff shall alllow them to pass them through his land. But aggrieved with the order he challeged the lower court order in a appeal to session court during vacation period for modification of the order in vacation period and session court order the operation of lower court order stayed for 6 days. In the verge of the order he again completely dismantle the path and block it completely and make it full of water. Again the proceeding of the court continued and finally order of the session court was favourable. The session court considered the entire conspiracy of the appeallant and finally dismissed his appeal. I also through a application under section 144 of CPC. The session court mentioned in the order that the defendant have liberty to file such application but the lower court shall decide the application within 2 weeks. The session court also mentioned that I have evolved easemantary right but which will be prejudicated in the trial court. But my family is in problem without any path to my house. Now the paintiff is trying to appeal in the high court . He want to suppress me under financial pressure.Sir pl provide me relevant advise
Asked 2 years ago in Civil Law from Sirsa, Jammu and Kashmir
1) you have already won before trial court and sessions court
2) even if defendant files an appeal he won't succeed in getting any reliefs
3) oppose grant of any stay as there is no other access to your house
Sir I can mail my judgement copy of court order if you want to refer. Then please provide me mail adress
Asked 2 years ago
1) you must have engaged a lawyer and he must have appeared in court on your behalf .he must have guided you on judgement passed by court
2) you can reproduce the judgement here if you so desire
Mulkh Raj Vs. Lakhwinder Singh & anr. 1
IN THE COURT OF R.K.MEHTA,
ADDL. DISTRICT JUDGE, SIRSA (HARYANA)
CIS No. : CMA/648 of 2013
Civil Appeal No. : 177-CMA of 2015
Date of Institution : 08.06.2015/16.06.2015
Date of Judgment : 20.07.2015
Mulkh Raj, aged about 67 years, son of Shri Hazara Ram, resident of
Village Abholi, Tehsil Rania, Dstrict Sirsa.
1. Lakhwinder Kaur wife of Shri Rattan Singh;
2. Mahinder Singh son of Shri Rattan Singh;
both residents of Dhani Mehanga Singh, Village Ottu, Tehsil Rania,
Appeal against the order dated 28.05.2015 passed by Shri
Vivek Tomar, Civil Judge (Junior Division), Ellenabad by
which the lower court has restrained the defendants from
interfering in the possession of the plaintiff over the suit
land subject to the plaintiff allowing the defendants
peaceful usage of path through the suit land.
Claim in Appeal
For mdification of the order of the lower court by passing
an unconditional order restraining the respondents from
interfering into the possession of the appellant over the
Mulkh Raj Vs. Lakhwinder Singh & anr. 2
Present: Shri Y.P.Nanda, Advocate for appellant/plaintiff.
Shri R.P.Sharma, Advocate for respondents/defendants.
Present civil misc. appeal has been filed by plaintiff, herein
appellant, against impugned order dated 28.05.2015 passed by lower
court vide which ad-interim injunction under Order 39 Rules 1 & 2 read
with Section 151 CPC has been granted in favour of plaintiff but by
imposing a condition that plaintiff shall allow the defendants, herein
respondents, to use passage in dispute passes through suit land of the
2. Lower Court record summoned and perused. Arguments
3. Plaintiff on 25.05.2015 filed a civil suit for permanent
injunction to restrain defendants from interfering in the ownership and
possession of plaintiff over land measuring 8K 0M comprising in Square
No.65, Killa No.23(3-12), 24/1(4-8), situated in Village Ottu, Tehsil
Rania, District Sirsa as also recorded in the jamabandi for the year 2011-
2012, hereinafter referred as suit land. Plaintiff in his application under
Order 39 Rule 1 & 2 read with Section 151 CPC sought ad-interim
injunction against defendants.
Mulkh Raj Vs. Lakhwinder Singh & anr. 3
4. From their written statement, it is the stand of
defendants that although plaintiff is owner in possession of suit land,
but house of defendants is situated in the land of Khewat No.513, Square
No.66, Killa No.4/1(2-12), which is situated adjacent to suit land and land
of suit land is only the passage in existence for a long time for ingress and
egress of defendants to their house which evolved easementry rights
also in favour of defendants and against plaintiff.
5. Further, it is the stand of defendants that plaintiff
suddenly intended to block and demolish passage in dispute forcibly and
illegally and in fact plaintiff under the garb of his suit planned to go
ahead with his illegal act and in case plaintiff is successful, then
defendants would be left with no passage to their house. As such,
defendants prayed for dismissal of application.
6. Learned lower Court vide impugned order dated 28.05.2015
disposed off injunction application. Paras No.8 & 9 of the said order are
reproduced as blow :-
“8. So, prima-facie plaintiff has shown the case in his
favour because he is the owner and in possession over the
suit property. But the balance of convenience in the present
case does not lie entirely in favour of the plaintiff. Because
as contended by the defendants if the injunction is granted
then the only path, if any, available to the defendants would
Mulkh Raj Vs. Lakhwinder Singh & anr. 4
be blocked and they will suffer irreparable loss. From the
limited documents present at the initial stage of this case,
nothing conclusively can be said regarding path at the
present stage. Because as contended the path was left in
good faith and does not find mention in the revenue records.
If the contention of the defendants is found true then the
plaintiff cannot be granted injunction to stop the defendants
from using the path, which as contended by her she has been
using since long to approach their house. So, the plaintiff is
not entitled to an unconditionally stay. Further no
irreparable loss is likely to be caused to the plaintiff if
temporary injunction is not granted in his favour.
9. Keeping in view the above discussion, by mere using
the path it cannot be said that the defendants will dispossess
the plaintiff from the suit property. So, the present
application of the plaintiff is allowed conditionally and the
defendants are hereby restrained from interfering into the
ownership and physical possession of the plaintiff over the
suit property but this shall be subject to the plaintiff
allowing the defendants peaceful usage over the path
through the suit property of the plaintiff.”
7. Plaintiff has challenged impugned order seeking
striking of impugned condition made in favour of defendants since
directions have been given to the plaintiff to allow defendants to use
passage passing through suit land of the plaintiff. Said challenges have
Mulkh Raj Vs. Lakhwinder Singh & anr. 5
substantially been made on the ground that when plaintiff is owner in
possession of suit land, then he cannot be directed to permit use thereof to
8. Mr.Nanda, learned counsel for plaintiff/appellant argued
on these lines that plaintiff being owner in possession of suit land did
not want to permit defendants to use it as passage in dispute for their
house. Further, right of easement has never accrued because defendants
failed to plead from which particular year they had started using the suit
land as passage and from which particular period easementry rights
accrued. Learned counsel referred a ruling of Hon'ble Calcutta High
Court in a case titled Nani Gopal Dutta and others Versus
Kshitish Chandra Banerjeet and another AIR (39) 1952
Calcutta 108 , in which Sections 13 & 15 of Easements Act 1892 were
discussed regarding vesting of easementry rights. In the facts of that
ruling, plaintiffs filed a suit for declaration their rights of pasturage over
the banks of a tank and their right of burial on the part of the bank of the
said tank. Learned trial Court refused to declare said rights. Hon'ble
High in appeal discussed principle that prescriptive right differs from a
customary right in as much as the former involves the creation of a right
while the later implies the creation of a rule of law. Hon'ble High Court
Mulkh Raj Vs. Lakhwinder Singh & anr. 6
held that plaintiffs, who were residents of village, cannot in law acquire
the right of burial either as easement by prescription or otherwise or on a
lost grant and on the basis of acquisition prescription as this was never
made. Hon'ble High Court further held that claim on the basis of
customary right is unsustainable because findings of the courts below was
that the tank in question was used for the purposes of irrigation and
bathing and drinking purposes and as much the exercise of rights would
interfere with the residents of the locality and cannot be regarded as
reasonable. Learned counsel thus submitted that easementry rights in the
present case were never accrued in favour of defendants.
9. Learned counsel further argued that imposition of
impugned condition in favour of defendants was not permissible under
the law. Learned counsel referred a ruling of Hon'ble Punjab & Haryana
High Court Ram Chander and Ors. Versus Harbhajan Singh &
Anr. 1986 PLJ 286. In the said ruling, it was held that application by
defendant for grant of temporary injunction to restraining plaintiff, is not
maintainable and it is the plaintiff who can file such application and
further when final relief cannot be granted to the party, then interim
injunction cannot be issued.
10. In this way, learned counsel for plaintiff-appellant prayed for
Mulkh Raj Vs. Lakhwinder Singh & anr. 7
deleting impugned condition made in favour of defendants in the
11. On the other hand, Mr.Sharma, learned counsel for
defendants-respondents pleaded that impugned order was passed in the
larger interest of justice because there was nothing wrong to permit
defendants to use passage in dispute till disposal of main suit pending
before lower court.
12. Learned counsel pointed out that conduct of plaintiff
indicated that plaintiff was bent upon to take law into his hands which
was evident from the fact that when learned predecessor of this Court
vide an order dated 08.06.2015 stayed operation of impugned order,
plaintiff had immediately dismantled suit land by ploughing it to block
the passage in dispute. Learned counsel produced an album containing
numerous photographs which depicted the situation at the spot.
13. Learned counsel for defendants-respondents also pressed
misc. application under Section 144 CPC filed on 16.06.2015 for
directing plaintiff to restore the passage.
14. After going through above facts and circumstances and with
due deference to the ration of rulings ibid, it is expressed that from the
pleadings of the parties and documents (which included photographs)
Mulkh Raj Vs. Lakhwinder Singh & anr. 8
produced by them, prima-facie there are reasons to believe that although
plaintiff Mulkh Raj has been recorded as owner in possession of suit land
in the revenue record and in the said record there is no formal mention of
existence of passage in dispute leading to the house of defendants
Lakhwinder Kaur and Mohinder Singh, but there are also reasons to
believe that house of defendants is situated adjoining the suit land and
plaintiff permitted construction of said house of defendants by facilitating
them use of passage from his suit land for a long time. It also appears
that there is no other passage for ingress and egress to their house by
defendants. It also appears that plaintiff after passage of an order by
Appellate Court, staying operation of impugned order, immediately
resorted to dismantle the passage by ploughing it and making it full of
water, leaving defendants to confine to their house. Defendants claimed
their easementry rights in the suit, pending before lower court, and of
course, said rights shall be subject to be adjudicated during the course of
trial of the suit.
15. As a whole, in above a situation, balance of convenience
appears to be tilting more in favour of defendants and if till conclusion of
trial of suit, plaintiff permits use of passage to the defendants from his
suit land, as directed by lower court, no irreparable loss is going to be
Mulkh Raj Vs. Lakhwinder Singh & anr. 9
caused to the plaintiff (uncle of respondent No.1) who had earlier by his
implied conduct permitted use of said passage by defendants at the time
of construction of this house and ingress and egress thereof for a long
time. Said use of passage does not appear to be interference in the
possession of plaintiff which otherwise stands protected by impugned
order. As such, element of granting ad-interim injunction to defendants is
not involved and ratio of ruling 1986 PLJ 286 (supra) is not
applicable since facts involved are distinguishable.
16. Therefore, no illegality has been found in the impugned
order passed by lower court which while granting ad-interim injunction in
favour of plaintiff himself, put a condition that till disposal of suit
plaintiff shall permit use of passage to the defendants.
17. As regards an application under Section 144 CPC
filed by defendants seeking restoration of path is concerned, it is
expressed that in the facts and circumstances of the case in hand,
defendants shall be at a liberty to file application under Section 144 CPC
for restitution before lower court being the appropriate forum and lower
court shall decide said application preferably within two
weeks from the date of its institution . As such, application under
Section 144 CPC pending in this court is deemed to be disposed of
Mulkh Raj Vs. Lakhwinder Singh & anr. 10
18. Due to aforesaid reasons, present appeal carries no merits
and is hereby dismissed. Parties through their counsels are directed to
appear before lower court on 04.08.2015 for further proceedings.
19. A copy of this judgment alongwith LCR be sent to learned
lower Court, for compliance.
20. Appeal file be consigned to the record room, after due
Pronounced: (R.K. Mehta)
Dated : 20.07.2015 Addl. District Judge,
Note: All the pages checked and signed by me.
Addl. District Judge,
Asked 2 years ago
1) you have got an excellent order
2) now make an application before lower court under section 144 CPC for restitution and lower court will pass order within period of 2 weeks on your application
Is there any chance of order of high court to pass a order in the favour of plaintiff if he appeals ? Can there is separate need to file a declaratory suit for easementary right during the pedency of the existing suit filed by plaintiff Mulkh Raj ?
Asked 2 years ago
Hi, you have to file a Caveat petition in the High Court so that the plaintiff will not take ex-parte order of injunction and contest the case on merits and from going to the facts of your case you have good case on merits.
Secondly, you have to file a declaratory suit for easement right as the plaintiff was obstructing the right of path way.
1) chances are bleak that HC will interfere with orders passed by trial court
2) you can file declaratory suit for easementary right . Both suits would be clubbed together
In your case the appellate court has upheld the decision of the lower court hence it becomes a fact that you are entitled to easement rights.
As appeal has been dismissed, let the plaintiff go for an appeal before high court too, you can challenge the same on the same grounds and merits, the case can be expected to be decided in your favor in the appeal before high court too. The appellate court has discussed the issue fully and very rightly dismissed the appeal.
1. The plaintiff remained unsuccessful in the lower court as well as in his appeal. He can now move the High Court through appeal. The High Court can reverse the decision of both the lower courts to rule in his favour. You should contest his claim in the High Court if at all he files a further appeal.
2. This man has been ordered by the court to allow you to access to the path, but he has demolished it. You should have sought a stay order to restrain him from demolishing the path which you wanted to walk on to access your property. Your failure to seek the stay order gave him an escape route.
1. This case has been filed by the person against whom you claim to have an easementary right. The finding of the court will be limited to the legal claim made by him. It will not be an affirmative finding for you even if the High Court and Supreme Court dismiss his appeal.
2. If you wish to access your property through the land owned by him then you should file a separate declaratory suit seeking a judicial command to him to not to block your path.
The pendency of the suit filed by this man does not prevent you from filing a declaratory suit to claim your easementary right in the land owned by him.
Sir, the man now withdraw his case from the lower court. Although I have to claim restoration of path under section 144 cpc disposed off by appellant court and given direction to lower court to decide the application. But he spoil my aim and withdraw his case. now what is the legal option before me to unblock the path as immediate relief and claim of my easementary right.
Asked 2 years ago
1) did you oppose withdrawal ?
2) file declaratory suit for easement right and move for urgent interim reliefs
3) in said suit mention about litigation till date and enclose copy of orders passed by trial court and appellate court
How can oppose withdraw if plaintiff want to withraw ? Could I? please guide me becoz It make me to suspect on my lawyer, If he guide me accurately? My advocate demand time of 4-5 days for filing easentary suit. Which type of easementary suit I should file? and also can i file application of section 144 cpc in that suit? Can Court can provide mre immediate relief in view of previous casee history
Asked 2 years ago
1) your lawyer has done a good job got you good results from court . You don't need to suspect him
2) it would take your lawyer 5 days to file suit to claim essmentary right of access and for injunction restraining your neighbour from obstructing your right of way
3) court can grant you interim reliefs
The referred section is reproduced below for your information
144. Application for restitution.- (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified ii any suit instituted for the purpose, the court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified and, for this purpose, the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are property consequential on such variation; reversal, setting aside or modification of the decree of the decree or order.
Explanation: For the purposes of sub-section (1), the expression “court which passed the decree or order” shall be deemed to include,—
(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the court of first instance;
(b) where the decree or order has been set aside by a separate suit, the court of first
instance which passed such decree or order;
(c) where the court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.
If the plaintiff wants to withdraw the suit or appeal, you may see what grounds have been specified for withdrawal and if it affects your stand, you may raise objection to it and put forth your arguments against it.
If you feel your lawyer is not cooperating you may change him.
You already have a relief in your hand, why dont you file an execution petition to execute the decree.
The plaintifff have already withdraw his case. Can I file any objection against withdrawal now. As case was already in my favor and court can pass an order against the plaintiff by directing him to restore the dimantlaed path under section 144. But very cleverly he escaped out making me and honourable court fool. please suggest me that :
(1) Is it right time to file declaratory suit for easementary right ?
(2) I have to file objection against the palintiff withdrawl?
Asked 2 years ago
1. You cannot oppose the withdrawal of the case if the plaintiff wishes to withdraw it.
2. It is but natural that it will take 4-5 days for your lawyer to draft the case and file it.
3. An easementary suit is filed to claim the easementary rights i.e the right to use for passage the land owned by another.
4. You cannot file a 144 application in your suit to claim easementary rights.
1) objection if any should have been taken before withdrawal . You cannot object once suit is permitted to be withdraw by court
2) you ought to file declaratory suit for eadementary rights
1. The order is in your favour,
2. You have the easement right to use his land for ingress and outgress of your land,
3. His application has not strong leg to stand upon,
4. Contest his cases fittingly.
1. Under the given circumstances, there is no probability for the court to deny your easement right,
2. You can also file a declaratory suit to get your easement right validated by court order.
1. File a police complaint for blocking your path,
2. File a Writ Petition before the High Court against police inaction and praying for direction upon other party to allow you your easement right,
1. An applicant can withdraw his application legally with the leave of the Court,
2. You can file a suit claiming your easement right,
3. For immediate relief, you should file W.P. before the high Court as advised in my earlier post.
1. He is being guided by a competent lawyer,
2. It is a clever move on his part to withdraw his application when he was about to get adverse order,
3. File the said declaratory suit for your easement right immediately,
4. For immediate relief, file the W.P. as advised in my earlier post.
If the plaintiff was permitted to withdraw the suit and the suit stands disposed, where do you have a case to object?
Why do you supply information in piece meal basis.?
While asking questions you must come out with facts if not you will get misguided information only.
You can file a suit for easement rights and also for declaration of the same but now you cannot file objections to the withdrawal of the suit.
Please refer my previous post. As I am defendants side in the mentioned case. The plaintiff has withdrawn his case due to appeal dismissal by the appellant court and direction of court to restore the path under section 144 CPC previously used by me since 35-40 year back. I completely disappointed from his act of withdrawal becoz he had blocked the path available to reach my house. He move cleverly. But now it is intimated by lawyer that the court issued a notice to him regarding the my application under section 144 CPC. It means my application stands instead of his withdrawal from his civil suit. The noticed him to appear on 28-08-2015. Now what I do about declaratory suit claiming easementary right . Or I should wait for till the decision of application filed under section 144 CPC
Asked 2 years ago
1) since appellTe court has directed trial court to dispose of your application filed under section 144 Crpc within 2 weeks you can wait for orders on your application then file declaratory suit for easement
You are making the events clear only now. In the given situation you just wait for his reply to the pending petition under section 144 of CPC against him. If he is indulging in another nonsense reply, you may try the option for filing the proposed declaratory suit for easement rights.
Be in touch with your lawyer.
1. He had filed the suit, so he was at liberty to withdraw it.
2. What you should understand is that you are the aggrieved person in as much as the path has been blocked by the plaintiff. The dismissal of a suit filed by the plaintiff does not restore the path to access your property as in a suit the court can give an affirmative finding limited only to the prayer of the plaintiff. It cannot grant an executable relief to the defendant. So you are the one who has to file a suit to claim the access to your property through his path.