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2015 DIGILAW 502 (HP)

Kunti Devi v. Vinay Singh

2015-05-08

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. (Oral) The defendants are the appellants, who have lost in both the Courts below. The facts, in brief, are that the plaintiffs filed a suit for perpetual injunction seeking permanent prohibitory injunction against the defendants from raising construction and blocking Share-aam-Rasta. 2. The defendants contested the suit by taking various preliminary objections but the suit was mainly contested on the ground that no Share-aam-Rasta is in existence and rather the suit land is owned and possessed by them and the path is only for private use and not a public path as alleged by the plaintiffs. 3. The learned trial Court framed the following issues: 1. Whether the path in Khasra No. 1396 was the only path used by the plaintiffs and other co-sharers for ingress and outgress, as alleged? OPP 2. Whether the plaintiffs are entitled for permanent prohibitory injunction and in the alternative for mandatory injunction, as prayed for? OPP 3. Whether the plaintiffs have no legally enforceable cause of action to file the suit, as alleged? OPD 4. Whether the plaintiffs are estopped to file the suit, as alleged? OPD 4-A. Whether the revenue entries qua Khasra No. 1396 are wrong, if so, what is its effect, as alleged? OPD 5. Relief. 4. After recording the evidence and evaluating the same, the learned trial Court decreed the suit. The appeal filed against the same was also dismissed by the learned District judge and aggrieved by the judgments and decrees passed by the learned Courts below, the defendants have filed the present appeal. 5. I have heard learned counsel for the parties and also gone through the records of the case carefully. 6. The learned senior counsel for the appellants has vehemently argued that the judgments and decrees passed by the learned Courts below are not sustainable in the eyes of law as the same are based upon the misconstruction of the pleadings and misreading of the evidence. It is also contended that the appellants had tendered documents Ex. D-7 which was the copy of Musavi for the year 1916, 1959-60 and 1881-82 of the village and showed that there was no passage. He further contended that once Ex. D-3 and D-5 had come on record, learned Courts below could not have decreed the suit. 7. It is also contended that the appellants had tendered documents Ex. D-7 which was the copy of Musavi for the year 1916, 1959-60 and 1881-82 of the village and showed that there was no passage. He further contended that once Ex. D-3 and D-5 had come on record, learned Courts below could not have decreed the suit. 7. Now in case the evidence led by the parties is perused, it is clear that there does exist a public path and therefore, the findings recorded by the learned Courts below cannot be faulted with. 8. PW-1 Sh. Vinay Kumar, who also happens to be the plaintiff No. 1 had stated that path existing over the suit land was the only path for ingress and outgress to their abadis and had been constructed about 50 years back. He further states that one of the predecessor-in-interests of the plaintiffs had sold the land to the father of the defendant No. 1. 9. PW-2 Sh. Sanjay Kumar was the Secretary of the Gram Panchayat, Dhugiari and produced in evidence certificates Ex. PW-2/A and Ex. PW-2/B. 10. PW-3 Sh. Purshottam Chand is the resident of village Dhugiari and deposed that the path is existing over the suit land which was being used by the plaintiffs. 11. Defendant No. 1 Kunti Devi appeared in the witness box as DW-1 and stated that she along with other co-owners had been owner in possession of the suit land and further deposed that the plaintiffs in connivance with the revenue staff got recorded the entry of Rasta Share-aam in the revenue record and the application for correction of this entry had been decided in her favour. She further stated that the defendants had an alternate passage through khasra numbers 1524, 1500 and 1501. 12. Now in case the documentary evidence is perused, Ex. P-1 is the copy of jamabandi for the year 1999-2000 wherein the nature of the suit land is recorded as Gair Mumkin Rasta Share-aam and this finds corroboration from the statements of PW-1 Vinay Kumar and PW-3 Purshottam Chand. 13. The order passed by the Settlement Officer dated 30.11.2000 has been placed on record as Ex. P-6 and it is apparent from the perusal of the same that the path had been existing over the suit land. 13. The order passed by the Settlement Officer dated 30.11.2000 has been placed on record as Ex. P-6 and it is apparent from the perusal of the same that the path had been existing over the suit land. The defendant Kunti Devi had made a statement before the Settlement Officer that they had been owners of the path and had kept the same for ingress to their houses. The Settlement Officer had in fact observed that the Tehsildar while conducting the spot inspection had in fact noticed that the path in question was in existence over the suit land. Thus, it can safely be concluded that the record prepared during settlement had been prepared with great care and accuracy and it is only thereafter that the entry of Share-aam Gair Mumkin path over the suit land was recorded. 14. Learned counsel for the appellants would further contend that the change made during the settlement was without notice to the appellants and made behind their back. I am afraid that the record does not support this contention. The settlement authorities as a matter of fact had carried out the inspection and made entry only after notice to the appellants. Be it stated that the defendants had not challenged the entries for sufficient long time and despite the settlement having been carried out in the year 1972-73, the application for correction came to be filed only in the year 2000 i.e. after about 28 years. 15. It has also come on record that the abadis of the respondents are adjoining the path and same is borne out from Ex. P-5, which is copy of Aks. The path to the house of Kalyan Chand through the main road had been upgraded by the Gram Panchayat, but the appellants had not raised any objection to such up gradation and, therefore, it was implicit that the appellants had admitted the path to be existing over the suit land. 16. The learned Courts below have considered the pleadings and the evidence in right perspective. The learned lower Appellate Court though was not required to, yet it has independently considered the pleadings and evidence and only thereafter concurred with the findings recorded by the learned trial Court. 17. The first appellate Court is the final Court of facts and pure findings of fact remain immune from challenge before this Court in second appeal. 18. The learned lower Appellate Court though was not required to, yet it has independently considered the pleadings and evidence and only thereafter concurred with the findings recorded by the learned trial Court. 17. The first appellate Court is the final Court of facts and pure findings of fact remain immune from challenge before this Court in second appeal. 18. No question of law much less substantial question of law arises for consideration. Consequently, there being no merit in the appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.