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2019 DIGILAW 331 (HP)

Kuldeep Chand v. Raghubir Singh

2019-03-28

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant/plaintiff has prayed for setting aside the judgment and decree dated 30.10.2004, passed by the Court of learned Civil Judge (Junior Division), Court No. 1, Amb, District Una, vide which, suit for permanent prohibitory injunction and in the alternative for possession filed by the appellant was partly decreed, as also for setting aside the judgment and decree dated 30.10.2006, passed by the Court of learned Additional District Judge, Una, District Una, whereby appeal filed by the appellant against the judgment and decree passed by the learned Court below stood dismissed. 2. Facts necessary for adjudication of this appeal are as under: Appellant/plaintiff (hereinafter referred to as 'the plaintiff’) filed a suit praying for permanent prohibitory injunction for restraining the defendants from taking possession, changing the nature and raising construction over the suit land, measuring 1 Kanal 2 Marlas, comprised in Khewat No. 635 min, Khatauni No. 900 and Khasra No. 905, situated in Village Kuthera, Tehsil Amb, District Una and in the alternative for possession of portion 'ABCD’ as per site plan Ex. PW4/A. His case was that land measuring 1-2 Kanals was owned by Bashindgan Deh and there existed ancestral abadi of plaintiff and other cosharers upon the same. As per the plaintiff, over vacant area in possession of plaintiff and co-sharers, he had stacked stones, wood etc. There was a common passage upon land measuring 2-5 Kanals, which was the only passage available to the abadi of the plaintiff as also his other land and defendants who had no right, title or interest over the same, were threatening to take forcible possession of the same and block passage by raising construction upon the same. 3. Defendants opposed the suit, inter alia, on the ground that plaintiff had no right, title or interest over the suit land comprised in Khasra No. 905. As per the defendants, there existed a path over Khasra No. 907. Khasra No. 905 was stated to be owned by Panchayat Deh and was possessed by Bashindgan Deh, over which, old abadi of defendants existed, which had fallen down and Kharposh Chhaper stood constructed by defendant No. 1 about 40 years back, who still continued to be in possession over the same. Defendants denied that any ancestral abadi of plaintiff existed over the suit land. 4. Defendants denied that any ancestral abadi of plaintiff existed over the suit land. 4. On the basis of pleadings, learned Trial Court framed the following issues: “1. Whether the plaintiff is entitled to the relief of injunction? OPP 2. Whether plaintiff has no locus standi to file this suit? OPD 3. Whether plaintiff is estopped from filing suit? OPD. 4. Whether suit is not maintainable? OPD 4A. Whether defendants have raised construction during pendency of suit, if so, its effect? OPP 5. Relief. 5. These issues were decided by the learned Trial Court as under: Issue No. 1 Partly Yes. Issued No. 2 Partly Yes. Issue No. 3 No. Issue No. 4 Partly Yes. Issue No. 4A No. Relief Suit partly decreed as per operative portion of the judgment. 6. Learned Trial Court partly decreed the suit of the plaintiff by granting decree for permanent injunction restraining defendants from blocking the passage existing over Khasra No. 907, situated in Village Kuthera, Tehsil Amb, District Una, H.P. However, suit of the plaintiff regarding Khasra No. 905 was dismissed. Learned Trial Court held that evidence demonstrated that ancestors of plaintiff had shifted to Amb many years ago while ancestors of defendants were residing in the Village. This stood admitted by plaintiff in his cross-examination. It was not the case of the plaintiff that abadi was constructed by his ancestors and the same was being used by him after his ancestors left for Village Amb. On these bases, learned Trial Court held that version of plaintiff that he was in possession of Khasra No. 905, wherein a dilapidated structure existed, was highly doubtful. It further held that there was no dispute upon existence of common passage over Khasra No. 907. Whereas plaintiff was stating that defendants were threatening and restraining plaintiff from using the same, defendant Madan Singh had denied the same. Learned Trial Court held that PW-3 Niaz Deen, who was an independent witness and who had no interest with either party, had supported the case of the plaintiff and, therefore, on balance of probability version of plaintiff, as defendants were having no right to restrain the plaintiff from using the common passage, therefore, plaintiff was entitled for permanent injunction for restraining the defendants from blocking the passage existing over Khasra No. 907. 7. 7. As per the record, judgment and decree passed by the learned Court below was not challenged by the defendants, however, plaintiff filed an appeal against the said judgment to the extent relief stood denied to him by the learned Court below. 8. Learned Appellate Court vide judgment and decree dated 30.10.2006, dismissed the appeal of plaintiff by upholding the findings returned by the learned Court below. It held that from the oral testimonies of the witnesses as also documentary evidence led by the parties, it was clear that there was a 'Share Aam Rasta’ over Khasra No. 907, but revenue record did not demonstrate that Khasra No. 905 was in exclusive possession of the plaintiff or for that matter of the defendants. It further held that in such circumstances, Trial Court had rightly held that whereas Khasra No. 907 was a common passage, but Khasra No. 905 was not in the exclusive possession of the plaintiff and, therefore, plaintiff was not entitled to injunction to this effect. 9. Feeling aggrieved, appellant/plaintiff has filed this appeal, which was admitted on the following substantial questions of law: “1. Whether the learned Courts below are legally justified in declining the relief of injunction with respect to the abadi area of Bashindgan Deh on the ground that the name of the plaintiff is not reflected in the revenue record? 2. Whether the judgments of the learned Courts below are unsustainable in view of the legal position that in the area of Bashindgan Deh whosoever is in possession is a deemed owner of such portion being the proprietor of the village?” 10. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by both the learned Courts below as well as the record of the case. 11. There is a concurrent finding of fact recorded against the appellant/plaintiff by both the learned Courts below that he was not in possession of Khasra No. 905. I have carefully gone through the record of the case. Plaintiff Kuldip Chand, who entered the witness box as PW-1, deposed that he was having abadi over Khasra No. 905 and there was a passage over Khasra No. 907. Except his bald statement, there is no substantive evidence on record to substantiate that Khasra No. 905 was in possession of the plaintiff. Ex. Plaintiff Kuldip Chand, who entered the witness box as PW-1, deposed that he was having abadi over Khasra No. 905 and there was a passage over Khasra No. 907. Except his bald statement, there is no substantive evidence on record to substantiate that Khasra No. 905 was in possession of the plaintiff. Ex. P-1, which is copy of Jamabandi of the suit land for the year 1983-1984 demonstrates that the land is owned by Panchayat Deh and in the column of possession, the words mentioned are 'MakbujaBashindganDeh’. Besides this, 'Gair Mumkin Abadi’ is reflected to be existing over Khasra No. 905. In Ex. P-2, which is a copy of Khatoni Bandobast, this Khasra number is shown to be 'Banjer Kadim’. Similarly, Ex. P-6 which is copy of Missal Hakiat for the year 1983-84, Khasra No. 905 is shown as 'Gair Mumkin Abadi’. In the column of ownership, name of Panchayat Deh is there and in the column of possession word used is 'Share Aam’. Therefore, as has been held by both the learned Courts below, there is no evidence on record to demonstrate that Khasra No. 905 was in the possession of appellant/plaintiff. Simply because plaintiff is a Bashindgan of the area and the land is shown to be in the possession of Bashindgan Deh, this does not mean that the inference to be drawn from the said entry is that said Khasra number is in possession of the appellant/plaintiff, as he wants this Court to believe. 12. Even if the said revenue records were to be ignored for a while, then also, it was incumbent upon the appellant/plaintiff to have had placed on record cogent and reliable evidence to demonstrate that Khasra No. 905 was in his physical possession to the exclusion of every other Bashindgan. This the appellant has miserably failed to do. Therefore, it cannot be said that learned Courts have wrongly denied the relief of injunction with respect to abadi area in favour of the plaintiff. Similarly, it cannot be said that the judgments passed by both the learned Courts below are not legally sustainable, because from the record, the plaintiff has not been able to prove that he in fact was in physical possession of Khasra No. 905 to the exclusion of every other Bashindgan. Substantial questions of law are answered accordingly. 13. Similarly, it cannot be said that the judgments passed by both the learned Courts below are not legally sustainable, because from the record, the plaintiff has not been able to prove that he in fact was in physical possession of Khasra No. 905 to the exclusion of every other Bashindgan. Substantial questions of law are answered accordingly. 13. In view of above discussion, as there is no merit in this appeal, the same is dismissed. Miscellaneous applications, if any, also stand disposed of.