Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2394 (HP)

Chattar Singh v. Gauri Singh

2016-11-11

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, Judge. The learned trial Court had decreed the suit of the plaintiff wherein he had claimed injunction against the defendants for restraining them from causing interference in his using path existing on abadideh land for facilitating his accessing his house. However, in an appeal carried therefrom by the aggrieved defendants before the First Appellate Court, the latter Court reversed the verdict of the learned trial Court. The plaintiff standing aggrieved by the pronouncement of the learned First Appellate Court has proceeded to through the instant appeal assail it herebefore. 2. The brief facts leading to the lis inter se the parties are that the plaintiff is permanent resident of Muhal Ahju/10, Tehsil Jogindernagar, District Mandi, H.P. and owns a considerable property there. House of the plaintiff is stated to be built over abadi deh land comprised in khasra No.487/1 and is in existence for last more than 90 years which requires immediate repairs. It is further averred that defendants without any right and authority are creating active interference on the path existing on the spot and leading to the house of the plaintiff and they are not allowing him to carry any building material for repair of the said house and are also not allowing him to repair the path by laying pucca cemented concrete. This path is alleged to be existing between khasra No.79 and 490 and passes through one side of the court yard of the house of the defendants and then it reaches to the house of the plaintiff. This path is in existence since the time of the forefathers and has always been peacefully used and enjoyed as a matter of right. Hence the suit. 3. The defendants contested the suit and filed the written statement wherein they have taken preliminary objection qua maintainability, cause of action etc. On merits, it is admitted that the house of the plaintiff exists over abadi deh land. It is denied that there is any passage over the abadi deh land ever enjoyed by the plaintiff and others. It is further stated that allegations are vague for want of any spot map and measurement of the passage. Other allegations are denied and it is stated that the suit is without any merits and it be dismissed. 4. It is denied that there is any passage over the abadi deh land ever enjoyed by the plaintiff and others. It is further stated that allegations are vague for want of any spot map and measurement of the passage. Other allegations are denied and it is stated that the suit is without any merits and it be dismissed. 4. The plaintiff/appellant herein filed replication to the written statement of the defendants/respondents, wherein, he denied the contents of the written statement and reaffirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether there exists any passage over the suit land, as claimed? OPP 2. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has no cause of action and locus standi to file the suit? OPD. 5. Whether the suit is bad for want of better particulars? OPD. 6. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, it decreed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom by the defendants/respondents herein before the learned first Appellate Court, the latter Court while allowing the defendants' appeal, reversed the findings recorded by the learned trial Court. 7. Now the plaintiff/appellant herein has instituted herebefore the instant Regular Second Appeal assailing therein the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 10.09.2013, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree of the learned first Appellate Court, on the hereinafter extracted substantial question of law:- a) Whether the findings of the First Appellate Court are result of complete mis-reading, misinterpretation of the evidence and material placed on record and against the settled position of law? Substantial question of Law No.1: 8. The propagation of the plaintiff qua his standing entitled to user of path, entitlement whereof stood espoused to arise from its prescriptive user commencing since times immemorial, stood countenanced by the learned trial Court. Substantial question of Law No.1: 8. The propagation of the plaintiff qua his standing entitled to user of path, entitlement whereof stood espoused to arise from its prescriptive user commencing since times immemorial, stood countenanced by the learned trial Court. The learned trial Court while pronouncing qua the plaintiff holding an entitlement to use the suit land as a path for accessing his house existing ahead of the house of the defendants stood founded upon (a) the relevant path occurring in abadi deh land; (b) spot map Ex.PW3/A proven by PW-3 holding depictions of a path existing on the suit land besides it unraveling qua its standing blocked by the defendants. It therein also holding manifestations qua the width of the path upon the suit land holding dimensions of about 1 ½ feet; (c) PW-4 while proving spot map Ex.PW4/A also corroborating the testimony of PW-3; (d) jamabandi qua the suit land holding reflections of it being abadi deh land, a part whereof has remained unconstructed, whereon PW-3 and PW-4 unanimously depose qua existence of a path thereon and (e) DW-2 Jayawanti Devi in her testification acquiescing qua existence on the suit land a path holding a width of 1 ½ feet besides hers in her cross-examination acquiescing qua the plaintiff using it in good faith. 9. Even though the aforesaid manifestations unraveled in the testifications of the aforesaid witnesses make a vivid portrayal of the plaintiff thereupon emphatically sustaining his plea qua existence of a path measuring 1 ½ feet on the suit land also thereupon his obviously sustaining the factum of his holding a prescriptive right qua its user commencing since times immemorial besides when the defendants omitted to adduce the relevant germane evidence proclaiming the factum of the plaintiff holding a facility to access his house through an alternative path than the one whereon he asserted a prescriptive right of easement, when imperatively enjoined the learned First Appellate Court to concur with the verdict recorded by the learned trial Court, it on the score of (a) Ex.PW3/A not standing supported by any demarcation report and (b) no reflection in the relevant tatima in personification of the measurement of the path, interfered with the verdict pronounced by the learned trial Court. However, the aforesaid verdict recorded by the learned First Appellate Court on anvil of the hereinabove assigned reasons holds no weight, significantly, when there occurs no dispute inter se the litigating parties qua one encroaching upon the land of the other, whereupon there was hence no enjoined necessity for the learned First Appellate Court to insist qua preceding the preparation of Ex.PW3/A a demarcation standing conducted of the relevant spot, more so, when the width of the path delineated therein stood also acquiesced by the defendants' witnesses. Also with the suit land standing reflected in the apposite revenue record to be abadi deh land whereon save and except the constructed portion, clinching evidence stands embodied in Ex.PW3/A and Ex.PW4/A besides acquiesced by the defendants' witnesses qua a path holding a width of 1 ½ feet existing thereon whereupon the portrayals occurring therein warranted acceptance as tenably done by the learned trial Court rather than theirs standing discountenanced as untenably pronounced in the impugned verdict recorded by the learned First Appellate Court. 10. The above discussion unfolds the fact that the conclusions as stand arrived at by the learned first Appellate Court standing not based upon a proper and mature appreciation of evidence on record. While rendering the apposite findings, the learned first Appellate Court has excluded germane and apposite material from consideration. Accordingly, the substantial question of law is answered in favour of the plaintiff/appellant and against the defendants/respondents. 11. In view of above discussion, the present Regular Second Appeal is allowed and the judgement and decree rendered by the learned Additional District Judge, Mandi on 22.8.2012 in Civil Appeal No.77 of 2012 is set aside. In sequel, the judgment and decree rendered by the learned Civil Judge (Senior Devision), Jogindernagar, District Mandi, H.P. on 9.9.2011 in Civil Suit No. 77 of 2005 is affirmed and maintained. Consequently, the suit of the plaintiff is decreed and the defendants are restrained from causing any obstructions or hindrance through themselves or their family members, agents and servants qua the user of the path holding width of 1 ½ feet, shown in Ex.PW3/A and Ex.PW4/A, by the plaintiff which is situated over abadi deh land in Mohal Ahju/10, Tehsil Jogindernagar, District Mandi, H.P. Decree sheet be prepared accordingly. All pending application (s) also stand disposed of. Records be sent back forthwith.