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2009 DIGILAW 1319 (PNJ)

Madan Lal v. Krishan Lal

2009-08-04

VINOD K.SHARMA

body2009
JUDGMENT VINOD K. SHARMA, J. (ORAL) - This revision petition is directed against the order dated 17.8.2007 passed by the learned District Judge, Sirsa vide which appeal filed by the respondent/plaintiff stands accepted by setting aside the judgment passed by the learned trial Court. 2. The plaintiff/respondent filed a suit for declaration claiming that the mutation No. 370 dated 20.4.1983 regarding the oral partition of total land measuring 339 K-16M, in which a street / passage towards the Western side of the land comprised in khasra No. 271/2 (1-4) situated in village Karamsana, Tehsil and District Sirsa, was not shown / left to be mentioned, in the 'Tatima' of mutation., is wrong, illegal and is liable to be corrected / changed or modified, by correction by showing the passage in the aforesaid khasra No. 271/2. The revenue record was liable to be corrected. The passage was claimed to have been left, at the time of oral partition, for enabling the owner of this khasra for approaching and entering the land, and was in use since then. The plaintiff also sought permanent injunction restraining the defendants from closing / blocking the above said passage, which was shown as ABCD in the site plan. The passage was said to be 11 feet in width and 20 feet in length. It was also asserted that this was the only passage with the plaintiff for entering his residential house shown as CEFG in the site plan. 3. Along with the suit an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure was filed. The learned trial Court dismissed the application by recording as under :- “9. After hearing both the sides I am of the view that the plaintiff does not have a prima facie case in his favour because from Rapat dated 4.3.83 it is evidently clear that Killa No. 271 was partitioned among father of the plaintiff and defendants and others and the land which fell to them in partition has been clearly specified with the passage left for ingress and egress to their land. The stand of the plaintiff that he has no other passage to go to his house is falsified from Musavi placed on file by the defendants wherein on the eastern side of Killa No. 271/2, which is stated to be occupied by the plaintiff, a passage has been shown to be existing and except for that no other passage on the western side of Killa No. 271/2 is shown to be existing as is the averments of the plaintiff in para No. 2 of the plaint. Therefore, balance of convenience is also not in favour of the plaintiff and he shall suffer no irreparable loss if the injunction is not granted rather irreparable loss to the defendant would be much more because on one hand the land has been partitioned among the father of the plaintiff, defendants and others on the basis of consent qua which mutation No. 370 has also been entered but despite of that the plaintiff is coming up in the court with a plea of existence of passage on the Western side of Killa No. 271/2 which is not borne out from the revenue record. Therefore, the status quo order dated 27.11.2006 regarding disputed passage is vacated and instant application is dismissed being without merits.” 4. The plaintiff/respondent preferred an appeal. The learned lower appellate Court without meeting the reasoning given by the learned trial Court accepted the appeal by giving no reasons. The operative part of the judgment passed by the learned District Judge, Sirsa reads as under:- “7. The case is at initial stage as the next date fixed for replication and issues is 11.09.2007. It is a fact that in the revenue record no such passage has been shown in existence but the plaintiff's case is that it has been in existence but could not be incorporated in the revenue record. The copy of roznamcha vakiati has also been placed on record. The trial of the case will take sufficient long time. So keeping in view the pleadings of the parties, both the parties are directed to maintain status quo regarding the passage in question. With these observations, the appeal and the injunction application stand allowed. Trial Court record with a copy of this judgment be sent back. The parties are directed to appear before the trial court on 24.08.2007. Appeal file be consigned to the record room.” 5. With these observations, the appeal and the injunction application stand allowed. Trial Court record with a copy of this judgment be sent back. The parties are directed to appear before the trial court on 24.08.2007. Appeal file be consigned to the record room.” 5. The order passed by the learned District Judge cannot be sustained, as it is against well settled law that the appellate authority while reversing the judgment / order passed by the learned trial Court is bound to meet with the findings recorded and also to give reasoning for disagreement. 6. This revision petition is allowed, the impugned order is set aside, and the case is remanded back to the learned District Judge, Sirsa to decide the appeal afresh in accordance with law. 7. The parties, through their counsel, are directed to appear before the learned District Judge, Sirsa on 31.8.2009.