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2019 DIGILAW 1160 (HP)

Mohinder Singh v. Roshan Lal

2019-08-13

SURESHWAR THAKUR

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JUDGMENT : SURESHWAR THAKUR, J. 1. The plaintiffs/appellants' herein (for short the plaintiffs), suit for, rendition of a declaratory decree, as well as, for, rendition of a decree of mandatory, and, permanent injunction, stood dismissed, by the learned Sub Judge, 1st Class, Court No. II, Amb, District Una, H.P. (for short "trial Court"). In an appeal cast therefrom, by the aggrieved plaintiffs, before the learned Additional District Judge, Una, H.P (for short "first appellate Court"), the latter affirmed the findings recorded, by the learned trial Court. 2. The aggrieved therefrom, the plaintiffs, hence rear the instant RSA, before this Court, wherefrom, they strive to beget reversal, of, the impugned verdict(s). 3. The brief facts of the case are that the suit filed by the plaintiffs, for, a decree of declaration to the effect that area marked by letters ADLKJIA shown as such in the site plan measuring 0-00-99 hectares comprised in Khewat No. 128 min Khatauni No. 435 min with present khasra No. 1522 and area marked by letters ABDCGHFA measuring 0-00-80 hectares comprised in Khewat No. 129 min Khatanui No. 436 with present khasra No. 1509 as per misal Hakiyat Bandobast for the year 1986-87 situated in village Nari, Tehsil Amb, District Una, H.P (for short the suit land) are part of old khasra No. 630, 638 and 639 and as such are owned by the plaintiffs and are used as Shareaam rasta by the plaintiffs as well as other inhabitants of the village since ancestors. Settlement order of 21.5.1998 is prayed to be declared wrong, illegal and void. By way of mandatory injunction plaintiffs have prayed to remove super structure marked by letters ABCDEFG shown in red colour in the site plan and to restore the same to its original position. In a prayer of permanent injunction the plaintiffs have prayed for restraining the defendants from raising further construction and obstructing, blocking said passage marked by letter KLDCGHFAIJ in any manner. The land comprised in old khasra No. 630, 638 and 639 was owned by the plaintiffs, and, during settlement process in the village, new numbers were carved out of same and measurement was converted into metric system. Area marked by letters ADLKJIA shown in the site plan of the plaintiffs measuring 0- 00-99 hectares now comprised in new khasra number 1522 is in actual part of old khasra Nos. Area marked by letters ADLKJIA shown in the site plan of the plaintiffs measuring 0- 00-99 hectares now comprised in new khasra number 1522 is in actual part of old khasra Nos. 638 and 639 and in a similar manner area marked by letters ADCGHFA measuring 0-00-80 hectares comprised in new khasra No. 1509 is part of old khasra No. 630 and 638. Said land was used as Shareaam passage by the plaintiffs and other inhabitants of the village to egress and ingress to their abadis, cattles shed as well as to Bazar and fields. Settlement staff during settlement process without any basis has shown land comprised in khasra No. 1509 in the ownership of defendant No.4 and land comprised in khasra No. 1522 in the ownership of defendants No. 3,5,10 and 11 which is wrong and illegal. However, nature of said land was rightly shown by the settlement staff as shareaam passage as per actual and factual position. In case the said suit land is not found to be Shareaam passage of the plaintiffs, in that case the plaintiffs have acquired a easementary right in the passage by way of prescription. The passage in question is essential for the beneficial enjoyment of the abadies of the plaintiffs, which is situated over new khasra No. 1510 towards northern side of the passage. The settlement Collector Kangra, during the pendency of the suit has passed the order of correction of entries in respect of the suit land which is wrong and illegal and the appeal against the order of settlement collector Kangra is pending before Additional Commissioner (Appeals) Shimla. The defendants have no right and title to raise the construction forcibly and block the passage. Therefore the plaintiffs have prayed for declaration and injunction. 4. The defendants have contested the suit of the plaintiffs and have taken preliminary objections of maintainability, estoppel, non-joinder of necessary parties, bar of Section 10 of CPC, valuation and limitation. On merits the defendants have alleged that no such shareaam rasta is situated over the suit land and the same is in the possession of the defendants. The site plan filed by the plaintiffs is incorrect. During the settlement operation wrong and illegal measurement was carried out on the spot and the nature of the Khasra No. 1522 has been wrongly written as Shareaam rasta, whereas, in fact the same is abadi. The site plan filed by the plaintiffs is incorrect. During the settlement operation wrong and illegal measurement was carried out on the spot and the nature of the Khasra No. 1522 has been wrongly written as Shareaam rasta, whereas, in fact the same is abadi. The defendants have already moved an application for correction of khasra Girdwari entries before the settlement authorities much prior to the filing of the suit. There is no question of acquisition of easementary right as alleged by the plaintiffs. Therefore, the defendants have prayed for the dismissal of the suit of the plaintiffs. 5. In the replication, the plaintiffs have reiterated and reasserted the contents the facts enumerated in the plaint and have controverted that of the written-statement. 6. From the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the suit land is owned by plaintiffs as alleged and used as 'Share-aam Rasta'? OPP 2. Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for? OPP 3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP 4. Whether the suit is not maintainable? OPD 5. Whether the suit is bad for non-joinder of necessary parties? OPD 6. Whether the suit is liable to be stayed u/s 10 of the CPC? OPD 7. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction ? OPD 8. Whether the suit is time barred? OPD 9. Whether the suit is bad for mis-joinder of parties? OPD (1,4,6,7,8,9) 9-A Whether the order dated 21.5.1998 of settlement Collector, Kangra is wrong, illegal and void as alleged? OPP 10. Relief. 7. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, dismissed the suit of the plaintiffs. In an appeal, preferred therefrom, by the plaintiffs, before the learned First Appellate Court, the latter Court, hence, affirmed the findings recorded by the learned trial Court. 8. Now the plaintiffs have instituted the instant Regular Second Appeal before this Court, wherein, they assail the findings recorded, in the impugned verdicts, hence by both the learned Courts below. When the appeal came up for admission, on 14.12.2011, this Court, admitted the appeal, on the hereinafter extracted substantial question, of law:- 2. 8. Now the plaintiffs have instituted the instant Regular Second Appeal before this Court, wherein, they assail the findings recorded, in the impugned verdicts, hence by both the learned Courts below. When the appeal came up for admission, on 14.12.2011, this Court, admitted the appeal, on the hereinafter extracted substantial question, of law:- 2. Whether the impugned judgments are unsustainable, in view of the fact that one side the learned trial Court has found that the record prepared by the settlement authorities is not correct, on the other hand, declining the relief of declaration that the record of the settlement is not correct, in view of the above the self contradictory judgments are illegal and erroneous? 3. In the face of the admission of the defendants that there exists passage as claimed by the plaintiffs, the relief qua the use of passage can be denied, such conclusion of the Courts below are unsustainable? 4. Whether the presumption attached to the revenue record is rebuttable, when the learned trial Court found that preparation of the record is wrong, in such a situation the presumption of correctness is rebutted, findings to the contrary are unsustainable in the eyes of law? Substantial questions of law:- 9. 4. Whether the presumption attached to the revenue record is rebuttable, when the learned trial Court found that preparation of the record is wrong, in such a situation the presumption of correctness is rebutted, findings to the contrary are unsustainable in the eyes of law? Substantial questions of law:- 9. The plaintiffs' contention, vis-a-vis, a "Shareaam Raasta" being borne in site plan, appended to the plaint, and, it being comprised in new khasra Number 1522, and, the old khasra Numbers thereof, bearing numbers 638, and 639, and, in the old khasra numbers, also, the afore path hence existing, and, being reflected, in, the requisite classification column, (i) and, his further contention qua, at the stage of preparation of records, by the settlement authorities, the afore "Shareaam Raasta", existing, upon, the old khasra numbers 638 and 639, and, wherefrom new khasra number 1522 stood purportedly carved, the authorities concerned, rather making unauthorized alternations or deviations, hence, through, theirs' adding, the area, of, old khasra numbers, on to, the land, reflected to be in the ownership, of, defendant No.2, (ii) alongwith all concomitant detrimental effects, of, precluding, the, right of user by the plaintiffs, of, the afore "Shareaam Raasta", is, thoroughly effaced, and, blunted (a) given the afore contention(s) standing negated, by the learned Courts below, (b) on, anvil of the settlement collector concerned, in his apposite orders, hence, repulsing the afore contention (c) besides when a perusal of the orders thereafter rendered by the Financial Commissioner (Appeals), HP Shimla-2, upon Revision Petition No. 98/2007, and, copy whereof, is, placed on record, and, whereto which hence, judicial notice, can be made, (d) and, wherethrough, the, order rendered by the Settlement Collector hence stands affirmed, (e) besides, when thereafter, as, evident from the order rendered also in affirmative thereto, by this Court, upon CWP No. 4650 of 2010, a copy whereof is placed, on, record, and, qua wherewith hence judicial notice is taken, thereupon, the afore conclusively rendered findings, in negation of, the, espousal of the plaintiffs, acquire firm conclusivity, and, the requisite binding effects. 10. 10. Lastly the learned counsel appearing for the plaintiffs has contended with much vigor, before this Court, (i) that, with his raising a plea of the plaintiffs acquiring by prescription, hence, an easementary right of passage, upon, the relevant portion, of, the suit land, (ii) thereupon dehors the afore conclusive findings, being rendered, yet, the afore espousal holding immense vigor. However, the afore submission cannot be accepted by this Court, as no issue, in respect thereof is framed, nor, obviously any evidence in concurrence therewith, stood adduced, and, (i) preeminently also when the afore espousal, is, grossly antithetical, vis-a-vis, the afore prime espousal, and, when the right of easement, of any, genre, is, exercisable, upon, a servient heritage, or, vis-a-vis, a servient owner, (ii) and, when contrarily, the plaintiffs principium prime espousal, is, rested, upon, the mis-drawing of the areas, of, suit khasra land, rather by the settlement authorities concerned, during, the course of settlement proceedings, being, held in the halqua concerned, (iii) and, when the afore espousal, is, for the reasons ascribed hereinabove, fully blunted, (iv) thereupon any claim of the plaintiffs qua theirs holding any prescriptive easementary right of user, of, the relevant portion of the suit land, rather, as a path, is wanting in any vigor, (v) as, reiteratedly, it striving to blunt the relevant conclusivity, and, binding effects, of, the afore revenue records, wherein rather the defendants, are, reflected owners, and, obviously no compatible reflections, of, "Shareaam Rasta" are borne therein nor when any evidence qua prescriptive user thereof, rather by the defendants, hence exists, on, the records. 11. In sequel the concurrently recorded verdict(s) by the learned Courts, are, well merited, and, theirs' not warranting any interference by this Court. The impugned verdict(s) are accordingly maintained and affirmed. Substantial questions of law are answered accordingly. All pending applications stand disposed of accordingly.