JUDGMENT : Sandeep Sharma, J. Instant Regular Second Appeal has been filed against judgment and decree dated 24.8.2006, passed by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, HP in Civil Appeal No. 21-P/04/02, reversing judgment and decree dated 18.1.2002 passed by Sub Judge (II), Palampur in Civil Suit No. 252/1997, whereby suit for permanent prohibitory injunction filed by the present appellant-plaintiff (herein after referred to as 'plaintiff') was decreed. 2. Briefly stated, facts as emerge from the record are that the plaintiff filed a suit for grant of decree of permanent prohibitory injunction under Sections 36 to 39 of the Specific Relief Act, restraining the respondents-defendants (herein after referred to as 'defendants') from taking forcible possession, digging any portion of the land, cutting trees, uprooting the boundary forcibly, or constructing any passage/road on the land, comprising Khata No. 216, Khatauni No. 449, Khasra Nos. 378 and 1295/381 (Kita 2) land measuring 0-25-40 Hects vide Jamabandi for the year 1991-92, situated in Mohal Banuri Khas, Mouja Banuri, Tehsil Palampur, District Kangra, HP, or interfering in the land in any manner, whatsoever. It is further averred in the plaint that plaintiff is cosharer in the suit land and land was allotted to him under the Scheme of allotment to the landless persons by the Government of HP. Plaintiff and his brothers made the suit land cultivable after spending huge amount, thereafter proprietary rights were also conferred upon the plaintiffs as is evident from Jamabandi for the year 1991-92. Plaintiff further claimed that he planted trees of Tunni, Eucalyptus, Poplar, Khirak, Orange etc. way back in the year 1989-90. In para-4 of the plaint, specific averments are made that there is one path, which is also recorded in the revenue record adjoining to the boundary of plaintiff's land and used by villagers. Plaintiff further averred that for the convenience of the general public, the plaintiff has also given one path from his land itself. Defendants threatened to construct forcibly a road through the suit land. Defendants intended to trespass over the suit land and started digging the suit land to construct road, hence, the suit was filed. 3. Defendants filed written statement taking preliminary objections of maintainability, estoppel, cause of action and suit being bad for non-joinder /mis-joiner of necessary parties. Defendants threatened to construct forcibly a road through the suit land. Defendants intended to trespass over the suit land and started digging the suit land to construct road, hence, the suit was filed. 3. Defendants filed written statement taking preliminary objections of maintainability, estoppel, cause of action and suit being bad for non-joinder /mis-joiner of necessary parties. Defendants set up a case that suit land was 'Shamlat' prior to allotment to the plaintiff and was being used by the villagers as Charand and old path was there, which was 100 years old. They further submitted in the written statement that path was very old and Kanungo had visited the spot and submitted his report to the Tehsildar for incorporating the path in the revenue record. He placed on record Annexure A. In the aforesaid background, defendants prayed for dismissal of the suit. 4. Replication was filed by the plaintiff reiterating the averments contained in the plaint. Plaintiff specifically denied the contents of written statement. Learned trial Court framed following issues on 10.3.2000. “1. Whether the plaintiff is entitled for the decree of permanent and prohibitory injunction, as prayed for? OPP 2. Whether the suit of the plaintiff is not maintainable, in the present form? OPD 3. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the suit of the plaintiff is bad for non-joinder/mis-joinder of necessary parties? OPD 6. Relief.” 5. The learned trial Court vide judgment and decree dated 18.1.2002, decreed the suit of the plaintiff for permanent prohibitory injunction to the extent that defendants were restrained from interfering or taking over forcible possession, digging the passage/ path in the suit land. Defendants filed appeal against the judgment and decree of the learned trial Court before Additional District Judge, Fast Track Court, Kangra at Dharamshala i.e. Civil Appeal No. 21-P/04/02, which was allowed by the first appellate Court vide judgment and decree dated 24.8.2006, reversing the judgment and decree of the learned trial Court and dismissing the suit of the plaintiff. Hence, the present Regular Second Appeal by the plaintiff. 6. The Regular Second Appeal was admitted on 20.9.2007, on the following substantial questions of law: “1. Hence, the present Regular Second Appeal by the plaintiff. 6. The Regular Second Appeal was admitted on 20.9.2007, on the following substantial questions of law: “1. Whether the learned Appellate Court has erred in holding that public path exists on suit land in absence of any revenue record to this effect on record. 2. That whether defendants have any right of path over suit land in view of the fact that they failed to establish any such right on record.” 7. Mr. Raman Jamalta, Advocate vehemently argued that the judgment passed by the first appellate Court is not sustainable in the eyes of law since it is not based on correct appreciation of evidence, as such same deserves to be set aside. Mr. Jamalta further contended that bare perusal of judgment passed by first appellate Court clearly suggests that it miserably failed to appreciate the evidence in its right perspective and first appellate Court while allowing appeal of the defendants, completely ignored overwhelming evidence available on record, suggestive of the fact that no path exists over the suit land. With a view to substantiate aforesaid argument, Mr. Jamalta made this Court to travel through the judgment passed by first appellate Court as well as evidence led on record by the defendants to demonstrate that all the material witnesses of the defendants including defendants admitted the factum that no path existed over the suit land, rather same is adjoining to the land of the plaintiff. Mr. Jamalta further contended that learned Court below has erred in coming to the concluding that the plaintiff made admission about existence of path on the suit land, qua which suit had been filed. In this regard, he specifically invited attention of the Court to para-4 of the plaint and stated that there is no admission on the part of the plaintiff with regard to existence of path over the suit land. He contended that bare perusal of para-4 of the plaint suggests that plaintiff in no uncertain terms stated that there is one path, which is also recorded in the revenue record, adjoining to the boundary of the plaintiff's land and is used by villagers and passers-by. He also stated that the first appellate Court while reversing judgment passed by learned trial Court, which was admittedly based on proper appreciation of evidence, wrongly arrived at the conclusion that public path exists over the suit land. He also stated that the first appellate Court while reversing judgment passed by learned trial Court, which was admittedly based on proper appreciation of evidence, wrongly arrived at the conclusion that public path exists over the suit land. He strenuously argued while referring to the evidence adduced on record by the plaintiff specifically in the shape of Ext. P-1, that it is admitted fact that adjoining to the suit land, there is a public path and there is no path over the suit land. As per Mr. Jamalta, aforesaid clear cut evidence placed on record by the plaintiff has been completely ignored by the first appellate Court while reversing the judgment of the trial Court. While concluding his arguments, Mr. Jamalta further contended that no evidence worth the name has been led on record by the defendants suggestive of the fact that the path, if any, over the suit land was used by the defendants as well as other villagers since the time of their fore-fathers. Moreover, there are no pleadings with regard to customary and easementary rights in the written statement and as such judgment passed by first appellate Court deserves to be set aside, and suit of the plaintiff deserves to be decreed. 8. Mr. Virender Singh, counsel appearing for the defendants, supported the judgment and decree passed by first appellate Court. He argued that bare perusal of judgment passed by first appellate Court clearly suggests that first appellate Court below has dealt with each and every aspect of the matter meticulously and rightly set aside the judgment and decree passed by trial Court, since it was not based on correct appreciation of evidence on record adduced by respective parties. Mr. Virender, while referring to para-4 of the plaint forcibly contended that there is clear cut admission on the part of the plaintiff that path exists over the suit land and as such there is no illegality and infirmity in the findings recorded by the first appellate Court to this effect. Mr. Virender while referring to the statements made by the plaintiff's witnesses, forcibly contended that there is no evidence worth the name on record led by plaintiff from where it could be inferred that no path passes over the suit land, rather there is clear cut admission made by the plaintiff's witnesses with regard to factum of existence of path over the suit land. While concluding his arguments, Mr. Virender strenuously argued that bare perusal of judgment of trial Court, nowhere suggests that most important and crucial fact of the usage of path over the suit land from time immemorial as pleaded by the defendants and duly proved by leading cogent evidence was considered by trial Court and as such judgment and decree passed by trial Court was rightly set aside by first appellate Court in the appeal. He prayed for dismissal of the appeal. 9. I have heard the learned Counsel for the parties and gone through the record very carefully. 10. This Court, solely with a view to ascertain the genuineness and correctness of the submissions of plaintiff as well as to explore answer to substantial questions of law as reproduced herein above, critically analyzed the entire evidence available on record. It clearly emerged from the record and not disputed by the defendants that suit land was allotted to the plaintiff under Scheme of allotment to landless persons by the Government of HP, which was further made cultivable by the plaintiff and his brothers. Similarly, perusal of Ext. P-1, certified copy of Jamabandi for the year 1991-92, clearly suggests that plaintiff is owner of the suit land since proprietary rights were conferred on him after allotment of land under the Scheme. This Court, while sifting entire evidence, was not able to lay its hands on any documentary evidence led on record by the defendants to controvert revenue entry recorded in favour of the plaintiff i.e. Ext. P-1, wherein plaintiff has been recorded as owner. There is no mention with regard to existence of path over the suit land in Jamabandi, Ext. P-1. 11. PW-1 Shambhu Ram, while deposing before trial Court categorically stated that the land in dispute belonged to him as well as to his brother. He categorically stated that the land bearing Khata No. 216, Khasra Nos. 378 and 1295/381 measuring 6 ½ Kanal is owned by him. He further stated that on 30.9.1997, defendants interfered in the suit land and threatened to construct road over the same. He also stated that defendants forcibly trespassed over his land and cut fruit bearing trees and extended threats, as such, he filed the suit. He specifically stated in examination-in-chief that there is no path passing through the suit land, rather 3 metre wide passage passes through side of his land. He also stated that defendants forcibly trespassed over his land and cut fruit bearing trees and extended threats, as such, he filed the suit. He specifically stated in examination-in-chief that there is no path passing through the suit land, rather 3 metre wide passage passes through side of his land. In cross-examination, he fairly admitted that earlier suit land was 'Shamlat' and was being used by other villagers. He also admitted that prior to allotment of land to him, same was being used by persons but self stated that after allotment, path was shifted to the side of suit land. He also admitted that as of today, that road is not being used. 12. PW-2 Nandu Lal and PW-3 Saina Devi may not be of any help to the plaintiff. PW- 4 Nandu Ram, specifically stated that he has no knowledge whether there is any passage adjoining to the land of the plaintiff. 13. PW-5 Om Parkash stated that defendants claimed passage over the suit land. It has also come in cross-examination that it is correct that there is path on the spot but same is not in revenue record. In his cross-examination, he also admitted that it is not a common passage. 14. If the statements adduced on record by the plaintiff are read in conjunction with Ext. P-1, Jamabandi for the year 1991-92, it is duly proved on record that there is no entry in the revenue record with regard to alleged passage over the suit land, rather careful perusal of aforesaid ocular as well as documentary evidence led on record by the plaintiff, clearly suggests that plaintiff is owner of the land and there exists no path over the suit land. Close scrutiny of cross-examination conducted upon plaintiff Shambhu Ram, compels this Court to draw inference that defendants admitted the claim of the plaintiff that there exists a public path adjoining the suit land but the same is not being used. If the suggestion put forth by the defendants to aforesaid witness is examined critically, it clearly emerges that defendants admitted the factum of existence of alternative path adjacent to the suit land, as has been categorically stated by the plaintiff in his plaint as well as deposition before the Court. If the suggestion put forth by the defendants to aforesaid witness is examined critically, it clearly emerges that defendants admitted the factum of existence of alternative path adjacent to the suit land, as has been categorically stated by the plaintiff in his plaint as well as deposition before the Court. Cross-examination conducted on this plaintiff witness, nowhere suggests that defendants at any point of time, were able to extract anything contrary to what he stated in his examination-in-chief. Since factum with regard to ownership as well as non-recording of path in the revenue record stands duly proved, this Court also perused evidence led on record by the defendants to ascertain whether passage over the suit land was being used by the defendants as well as other villagers before allotment to the plaintiff under the Scheme referred to herein above. 15. Defendant Puran Chand stated that path is situated over the suit land and same was being used by the villagers. He further stated that the plaintiff wanted to close the passage situated over the suit land. However, in cross-examination, he admitted that passage is situated adjacent to the suit land. In cross-examination, though he denied that no path is situated over the suit land but the fact remains that in his cross-examination, he admitted that passage is situated adjacent to the suit land, which corroborates the version of the plaintiff as stated in his plaint as well as statement before the Court. 16. Similarly, DW-2 Shubh Karan also admitted the factum of existence of alternative path adjacent to the suit land. 17. DW-3 Gorkhu Ram also admitted existence of path adjacent to the suit land. 18. Aforesaid witnesses have categorically stated that said path was never closed by the plaintiff Shambhu Ram. Close scrutiny of aforesaid defendants' witnesses though suggests that prior to allotment in favour of the plaintiff, some portion of aforesaid land was being used as path over the suit land but if their statements are read in entirety, it clearly proves the case of the plaintiff who, in no uncertain terms, stated that there is one path, which is also recorded in revenue record, on the boundary of the suit land and was being used by the villagers and passers-by. Aforesaid defendants' witnesses admitted in clear terms that there is path adjacent to the suit land and same has been never closed by the plaintiff. Aforesaid defendants' witnesses admitted in clear terms that there is path adjacent to the suit land and same has been never closed by the plaintiff. Perusal of judgment passed by the first appellate Court clearly suggests that while accepting the appeal of the defendants, it heavily relied upon para-4 of the plaint, which is reproduced herein below: “4. That there is one path which is also recorded in the revenue record adjoining the boundry of the plaintiff's land and is used by the Villagers and passers by. Moreover, for the convenience of the General Public, the Plaintiff has also given one path from his land itself.” 19. First appellate Court, after reading aforesaid averments contained in para-4 of the plaint, came to the conclusion that there is clear cut admission on the part of the plaintiff that there is one path which is recorded in revenue record, adjoining to the boundary of the plaintiff's land and is being used by the villagers. First appellate Court also took into consideration that plaintiff himself admitted that he has given one path through his land itself. This Court, after perusing averments contained in para-4 of the plaint, has no hesitation to conclude that first appellate Court misread and mis-interpreted averments contained in the plaint and wrongly came to the conclusion that there is clear cut admission on the part of the plaintiff with regard to existence of passage over the suit land, rather perusal of aforesaid para clearly suggests that plaintiff in no uncertain terms stated that there is one another path recorded in the revenue record adjoining to boundary of the plaintiff's land, which is used by villagers and passers-by. If aforesaid averments contained in para-4 of the plaint are read juxtaposing the statement of PW-1 Shambhu Ram, made before the Court, it clearly corroborates his version, wherein he stated that there exists one passage adjacent to the land and as such this Court is unable to accept the reasoning assigned by the Court below while setting aside the judgment of trial Court, which appears to be based on correct appreciation of evidence adduced on record. 20. 20. Similarly, this Court, after perusing written statement filed by defendants, specifically to para-4 of the plaint is unable to accept that path existing over the suit land was being used by the villagers from time immemorial because no evidence worth the name has been led on record suggestive of the fact that passage over the suit land was being used by their forefathers and as such they have a right over the same. Similarly, this Court sees no pleading on record by the defendants suggesting that the defendants have customary and easementary rights over the suit land and as such findings returned by the first appellate Court to the effect that there existed path over the suit land, and defendants are entitled to enjoy same, deserve to be set aside being erroneous and foreign to the record. This Court, after perusing averments contained in the plaint, as well as statement of PW-1 Shambhu Ram, has all the reasons to believe the version of the plaintiff that prior to allotment of land to him, villagers used to pass through same but now there exists path adjacent to his land. Defendants have acknowledged the existence of alternative path as stated by DW-2. DW-3 has stated that the plaintiff has never stopped that passage. Moreover, perusal of Ext. P-1 as has been discussed herein above clearly suggests that there is no entry in revenue record with regard to existence of path over the suit land and as such this Court sees no merit in the finding recorded by the first appellate Court. While accepting the appeal of the defendants, first appellate Court wrongly interpreted the contents of para-4 of the plaint, which otherwise suggests that there exists alternative path adjacent to the suit land. 21. Hence, this Court has no hesitation to conclude that the first appellate Court erred in concluding that public path existed on the suit land because there is no entry in the revenue record to this effect. Similarly, as has been discussed above, defendants have not been able to prove on record by leading cogent evidence that they have right over path allegedly existing over suit land. Similarly, as has been discussed above, defendants have not been able to prove on record by leading cogent evidence that they have right over path allegedly existing over suit land. Since there is no revenue record suggestive of the fact that there existed path over the suit land, onus was high upon the defendants to prove that they have/ had customary and easementary right over the said path allegedly existing over the suit land. At the cost of repetition, it may be stated that there are no pleadings as well oral evidence adduced on record by the defendants suggestive of the fact that being villagers, they had customary and easementary rights to use path in question. Simple assertion from the defendants that they have been using the land for more than 100 years, may not be sufficient to conclude that defendants have some right to use the path. 22. In written statement to para-4 of the plaint, defendants have stated as under: “4. In reply to Para 4 of the Plaint: - It is not admitted hence denied. The path which is described in the plaint is an old path about 100 years old which is being used by about 100 families of Zamidars of the village-Banuri, Teh-Palampur for long time and is used by the persons of the village and this is the only path for the Zamindars. The path is not occupied even by the plaintiff. There is no other way to cross the village. This path is also being used by the villagers for taking water from the Handpump installed by the I &P.H Department. The path is very old and Kanungo has visited the spot and has submitted his report to the Tehsildar for incorporating the path in the revenue record. Copy of Report is attached as Annexure’ –'A’.” 23. At the best, keeping in view the averments contained in the plaint and statement made by the plaintiff while deposing before the Court, use of path over the suit land, if any, can be termed as 'permissive, and by no stretch of imagination, defendants can claim it as a matter of right. 24. In Balley v. Rama Shanker Lal reported in AIR 1975 Allahabad 461, the learned Single Judge of Allahabad High Court has held as under: “5. 24. In Balley v. Rama Shanker Lal reported in AIR 1975 Allahabad 461, the learned Single Judge of Allahabad High Court has held as under: “5. The main question that falls for determination in this appeal is whether the plaintiff can be said to have acquired a prescriptive right of way under Section 15 of the Easements Act on the 'Danda' running over the ridge 'between the two fields Nos. 30 and 31. Learned counsel for the plaintiff-respondent contended that the learned Judge of the lower appellate Court rightly applied the law in holding that the plaintiff having proved that he has been passing over the disputed passage for over 25 years after purchasing plots Nos. 9 and 10 for enjoyment thereof without any let or hindrance, it would be presumed that he did it as of right Reliance was placed in this connection on the cases of Hari v. Mahadeo (AIR 1921 Nag 127), Phoolchand v. Murari Lal (AIR 1951 Madh Bha 89) and Tukaram Rajaram Suple v. Sonba Chindu Mali ( AIR 1959 Bom 63 ). In my judgment, the learned Judge of the court below seems to 'be of the view that once a person establishes his passing over a piece of land for more than 20 years without any evidence of interruption or hindrance, then he would be deemed to be so doing as of right and he would acquire a prescriptive right of way under Sec. 15 of the Easements Act Even the cases cited by the learned counsel for the plaintiff-respondent do not lay down any such rule of law. It would be seen that in all those cases on the facts and circumstances it was either found that the user was as of right or the user was not as of right but was by way of leave or licence. Here in the instant case the plaintiff came with a case that there was passage one Lattha wide on which bullock carts and Ikkas could pass and he had been using it for over 25 years as of right for access from the main road to his Gher in plots Nos. 9 and 10. This affirmative case pleaded by him has not been found to be established. 9 and 10. This affirmative case pleaded by him has not been found to be established. What has been found established is that on the ridge between the boundaries of the two cultivated fields there was a passage 1 to 2 feet wide which could be used as an access from the public road to the agricultural plots in the village lying to the south of that public road. It is the common feature in our agricultural villages that on the Mend 'boundary between two cultivated agricultural fields public generally pass and hardly by habit any agriculturist objects to it. I have no hesitation in holding that such passing over the ridges of the field to and fro by the villagers would always the permissive user. Thus an uninterrupted user by any person of a ridge between the two agricultural fields for passing over it could be presumed to be permissive and not as of right. Moreover, it would not toe in public interest if this court countenances recognizing acquisition of prescriptive right of way over the boundaries of the agricultural fields as that would lead to complications in the agricultural areas having a baneful effect end completely preventing the rearrangements of agricultural fields or their divisions. In the circumstances of the instant case in the consolidation proceedings, on the own admission of the plaintiff, Rama Shanker Lal, who appeared in the witness box, he did not ask for a chak road over the disputed land. The view of the court below that such an objection could not have been raised under Section 9 or 20 of the Consolidation of Holdings Act may be a correct view tout there was nothing to (prevent the plaintiff when the chaks were toeing carved to ask the Consolidation to leave a passage. The attempt of the plaintiff that the consolidation had put stone pillars demarcating the passage has miserably failed as there is a finding recorded that no such stone pillars were found at the spot which were put as demarcation by the Consolidator. I, therefore, hold that the lower appellate Court has misdirected itself in holding that as of right the plaintiff had 'been using the 'Danda' for access to the plots 9 and 10 from the public road. It would be 'presumed that the user was permissive. I, therefore, hold that the lower appellate Court has misdirected itself in holding that as of right the plaintiff had 'been using the 'Danda' for access to the plots 9 and 10 from the public road. It would be 'presumed that the user was permissive. The plaintiff could not succeed therefore merely on the evidence as adduced by him that any prescriptive right of way has accrued to him under Section 15 of the Easements Act.” 25. In M.A.M. Abdullah v. K.A. Qadus reported in AIR 1976 Jammu and Kashmir 23, the learned Single Judge of the Jammu and Kashmir High Court has held as under:- “13. Now the evidence of the plaintiffs, a resume of which has been given above, does not establish the case of the plaintiffs that they have been using this pathway as of right and also openly. It can be well gleaned from the evidence on record that the pathway the plaintiffs have been using was on mere permissive lines which did not create any vested right in the plaintiffs to claim a right of easement. There is, also the report of the various revenue officers on the record especially the report of the Naib Tehsildar who went on spot and found that no pathway, as claimed by the plaintiffs, existed. It is also found that there are no entries in the revenue records suggesting that a right of path-way existed on Survey No. 976-min. Had this been so, then there ought to have been some entries in ?WAJIB UL ARAZ? or in some other revenue record. It is also no correct that the spring is located in the joint land of the parties as given out by some of the witnesses of the plaintiffs. That indeed runs counter to the very case set up by the plaintiffs.” 26. Substantial questions of law are answered accordingly. 27. Consequently, in view of the aforesaid discussion, present appeal is allowed. Judgment and decree dated 24.8.2006 passed by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, HP in Civil Appeal No. 21-P/04/02 is set aside. Judgment and decree dated 18.1.2002 passed by Sub Judge 1st Class Court No. 2, Palampur in Civil Suit No. 252/97 is restored, whereby suit of the plaintiff was decreed. Pending applications are disposed of. Interim directions, if any, are vacated.