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2010 DIGILAW 763 (HP)

Birender Singh v. Gram Panchayat Mahi

2010-04-24

KULDIP SINGH

body2010
JUDGMENT Kuldip Singh, J. 1. The plaintiff has come in appeal against judgment, decree dated 22.7.2000 passed by learned Additional District Judge, Solan in Civil Appeal No. 2-S/13 of 2000 affirming judgment, decree dated 24.12.1999 passed by learned Sub-Judge 1st Class, Kandaghat in Civil Suit No. 150-K/1 of 1995. 2. The case of the appellant, in brief, is that he is owner in possession of the land comprised in Khata No. 60, Khatauni No. 100 Khasra No. 373 measuring 2-15 Bighas situated in Mauja Salhari, Tehsil Kandaghat, District Solan as per jamabandi for the year 1974-75. It has been alleged that during recent settlement Khasra No. 373 has been assigned new Khasra Nos. 627, 631, 632, 633, 634 and 638 Kita 6, measuring 2346 square meters as per Misal Haqiyat Bandobast for the year 1992-93. The appellant and his predecessor-in-interest had been absentee landlords, revenue officials during settlement operation in connivance with some vested interests and taking advantage of the absence of the appellant had illegally shown portion of old Khasra No. 373, now new khasra No. 638 measuring 707 sq.mtrs. as 'Gair Mumkin Rasta'. In the column of possession, 'Share Aam' has been shown in the revenue record, such entry is wrong, illegal and not binding on the appellant. There exists no path on the spot on the suit land. It has been alleged that there is only a small beaten path of two feet width by the side of the suit land on the lower side which is being used by the villagers and goes towards village Bhagash. The appellant has no objection to the user of that beaten path by villagers. It has been alleged that respondents No. 1 and 2 have started interference on the suit land by digging the land and they have threatened to make path pucca on the basis of wrong revenue entries. 3. The suit was contested by respondents by filing written statement. The respondents No. 1 and 3 have filed separate written statements. The preliminary objections of jurisdiction, lack of notice under Section 80 C.P.C., non-compliance of Section 93 of the H.P. Panchayati Raj Act, 1994 were taken. The respondent No. 3 has also taken the preliminary objection that appellant has no cause of action, suit has not been properly valued for the purpose of Court fee and jurisdiction, suit is bad for want of necessary parties. The respondent No. 3 has also taken the preliminary objection that appellant has no cause of action, suit has not been properly valued for the purpose of Court fee and jurisdiction, suit is bad for want of necessary parties. On merits, it has been alleged that there is a path in existence for the last more than 100 years which is enjoyed by the public at large peacefully, openly and without any objection to the knowledge of the appellant. The Panchayat had sent the case to the Government for sanction of appropriate funds for repairing the said path. The respondent No. 3 had sanctioned the grant and the Panchayat was authorized to conduct the repair. The entry of path made during settlement was made after spot verification. The appellant had filed separate replications to the written statements of respondents No. l and 3 and re-affirmed his case. 4. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP. 2. Whether the revenue entries in respect of Khasra No. 638 measuring 707 sq. meters as Gair Mumkin Rasta and Share Aam, are wrong, illegal, imaginary, null and void and not binding on the plaintiff as alleged? OPP. 3. Whether the Court has no jurisdiction to try the suit as alleged? OPD. 4. Whether the suit is not maintainable in the present form? OPD. 1 and 3. 5. Whether the suit is bad for notice under Section 80 C.P.C., as alleged? OPD. 1 and 3. 6. Whether the plaintiff has no cause of action? OPD 1 and 3. 7. Whether the suit is not valued properly for the purpose of Court fee and jurisdiction? OPD 3. 8. Whether the suit is bad for non-joinder of necessary parties? OPD 3. 9. Relief. The issues No. 4 and 6 were answered in affirmative, issue No. 1 partly in affirmative, issues No. 2, 3, 5, 7 and 8 were answered in negative and the suit was dismissed by the learned Sub-Judge on 24.12.1999. The appeal filed by the appellant in the lower Appellate Court was dismissed by the learned Additional District Judge on 22.7.2000. The second appeal has been admitted on the following substantial questions of law: 1. The appeal filed by the appellant in the lower Appellate Court was dismissed by the learned Additional District Judge on 22.7.2000. The second appeal has been admitted on the following substantial questions of law: 1. Whether the impugned judgment and decree are vitiated because of the misreading, misinterpretation and mis-appreciation of the documentary evidence consisting of Exs.D-1, D-2, P-9 and P-10? 2. Whether the learned Courts below are right in placing reliance upon Ext.DW-2/A to DW-2/C especially when it is the appellant who had been recorded as owner in possession of the land in dispute and there was no passage recorded in the revenue record from the very beginning and it is only during the settlement that too at the back of the appellant that entry was got incorporated without any authority of law? 5. I have heard Mr. Ramakant Sharma, learned Counsel for the appellant, Mr. Rakesh Thakur, learned Counsel for respondent No. 1 and Mr. P.K. Sharma, learned Additional Advocate General with Mrs. Shubh Mahajan, learned Deputy Advocate General for respondent No. 3. On behalf of the appellant, it has been submitted that the settlement authorities in connivance with vested interests have recorded path over old Khasra No. 373 min, new Khasra No. 638 and Khasra No. 638 has been wrongly shown in possession of 'Share Aam' in Missal Haqiyat Jadid Ex. D-2(Ex.P-8). It has been submitted that Khasra No. 638 is part of old Khasra No. 373 and as per jamabandi Ex.P-10 for the year 1974-75 Puran Singh father of appellant has been shown owner in possession of Khasra No. 373. In jamabandi Ex.P-9 for the year 1979-80, appellant has been shown in possession of Khasra No. 373. It has been submitted that change in Missal Haqiyat Jadid Ex.D-2 (Ex.P-8) is unexplained and, therefore, no presumption of truth is attached to Missal Haqiyat Jadid Ex.D-2 (Ex.P-8). He has submitted that there is no path on the spot as claimed by the respondents. The Courts below have misconstrued, mis-interpreted Ex.D-1, Ex.D-2, Ex.P-9 and Ex.P-10, The Courts below have also erred in relying Ex.DW-2/A, Ex.DW-2/B and Ex.DW-2/C. The learned Counsel for the appellant has prayed for setting aside impugned judgment, decree. The learned Counsel for the respondents have supported the impugned judgment, decree. The Courts below have misconstrued, mis-interpreted Ex.D-1, Ex.D-2, Ex.P-9 and Ex.P-10, The Courts below have also erred in relying Ex.DW-2/A, Ex.DW-2/B and Ex.DW-2/C. The learned Counsel for the appellant has prayed for setting aside impugned judgment, decree. The learned Counsel for the respondents have supported the impugned judgment, decree. They have submitted that the two Courts below have recorded findings of fact which have not been shown to be perverse, therefore, no interference is required in the second appeal. 6. PW-1 Birender Singh in his statement has stated that there is a beaten path 2-1/2 feet in width which passes through his land and he has never stopped the villagers from using that path. He has stated that revenue department has wrongly entered path over his land. In cross-examination, he has stated that the villagers are using said path peacefully. The path is 2-1/2, 3, 5 feet in width. PW-2 Prem Kumar has stated that he had seeing the path for the last 40 years. In 1994-95 some change was effected in the path. PW-3 Sant Ram has stated that now path has been widened by digging the land of the appellant. He has shown his ignorance that since 1.986-87 the path is 12-13 feet in width. 7. DW-1 Mahesh Dutt, Vice President, Gram Panchayat, Mahi has stated that path is very old and he had seen Jeep plying on this path for the last 15 years, the path is about 4 to 4-1/2 meters in width. DW-2 Krishan Dass Sharma has stated that path is 5 - 6 feet in width. DW-3 P.D. Bhardwaj has stated that path in dispute is in the form of a road and he had seen various vehicles plying on this road. The path is 15-16 feet in width. DW-4 Tara Dutt has stated that the path is 12-15 meters in width. In photograph Ex.P-1 a scooter is shown on one side of the path, on rough estimation it appears that path/road shown in Ex.P-1 photograph is about 10 to 12 feet in width. 8. The existence of path on the spot has been established. The appellant has himself admitted the existence of path but according to him the width of the path is 2 to 2-1/2 feet. 8. The existence of path on the spot has been established. The appellant has himself admitted the existence of path but according to him the width of the path is 2 to 2-1/2 feet. He has admitted that path is on the spot for the last about 40 years, but jamabandi Ex.P-9 for the year 1979-80 and jamabandi Ex.P-10 for the year 1974-75 are not showing any path on old Khasra No. 373. This means no presumption of truth is attached to jamabandis Ex.P-9 and Ex.P-10 so far as existence or non-existence of path is concerned. Once the appellant himself has admitted that the path is in existence for the last 40 years that means during settlement the existence of path was rightly detected and it was so incorporated in Missal Haqiyat Jadid Ex.D-2 (Ex.P-8) for the year 1992. 9. The question is only with respect to width of the path. There is overwhelming evidence on record that the width of the path on the spot is in between 10 to 15 feet. The photograph Ex.P-1 also indicates the width of the path about 10 feet to 12 feet. Ex.DW-2/A is the letter addressed by the villagers to the President, Gram Panchayat, Mahi for repairing and metalling the path in dispute. Ex. DW-2/B is the copy of resolution dated 2.3.1995 of Gram Panchayat, Mahi requesting the Block Development Officer for metalling the path in dispute. Ex.DW-2/C is the statement of expenses incurred on the path from time to time. These documents indicate that steps were taken for metalling the path in question. Ex.D-1 is the copy of Shajra Kistwar. The learned Counsel for the appellant has failed to establish that the Courts below have mis-construed, misinterpreted Ex.D-1, Ex.D-2, Ex.P-9 and Ex.P-10. 10. The learned Counsel for the appellant has also failed to point out any illegality in the impugned judgment, decree for putting reliance on Ex.DW-2/A, Ex.DW-2/B and Ex.DW-2/C. It has not been pointed out that any material evidence has been ignored by the Courts below. The Courts below have rightly appreciated the material on record. In second appeal re-appreciation of evidence is not possible. There is no merit in the appeal. The substantial questions of law Nos. 1 and 2 are decided against the appellant. 11. No other point was urged. 12. The Courts below have rightly appreciated the material on record. In second appeal re-appreciation of evidence is not possible. There is no merit in the appeal. The substantial questions of law Nos. 1 and 2 are decided against the appellant. 11. No other point was urged. 12. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs.