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2019 DIGILAW 366 (HP)

Pano Devi v. Dila Ram

2019-04-03

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. - By way of this appeal, the appellant has challenged the judgment and decree passed by learned Civil Judge (Senior Division) Court No.I, Sarkaghat, District Mandi, H.P. in Civil Suit No. 30/2009 dated 01.06.2016, vide which suit for permanent prohibitory injunction filed against the appellant by respondents-plaintiffs stood decreed and also the judgment and decree passed by the Court of learned Additional District Judge(II), Mandi, in Civil Appeal No. 117/2016 dated 11.07.2016, vide which appeal filed by appellant-defendant against the judgment and decree passed by the learned Trial stood dismissed. 2. The case was heard today for the purpose of admission. Brief facts necessary for the adjudication of the case are as under. Respondent-plaintiffs (hereinafter referred to as plaintiff) filed a suit that they were owners in possession of land comprised in Khewat No. 70, Khatauni No. 70, Khasra Nos. 100 and 101. On the said land plaintiffs had constructed their houses and Cow-shed. There was a path on the land in Khewat No. 70, Khatauni No. 70, Khasra Nos. 100 and 101, belonging to the defendants. Said path was being used by plaintiffs, since the time immemorial. There was also a path in Khasra No. 97 and said path was being used peacefully by the plaintiffs for the last 60 years to have access to their land as also to their house. Defendants had no right to obstruct said paths. Despite this defendants started obstructing the paths. Proceedings under Section 133 of the Code of Criminal Procedure were initiated, but they were closed as the path (in khasra No. 100 and 101) was not found to be a public path. Suit was thus filed, praying for a decree for permanent prohibitory injunction, restraining the defendant from obstructing the use of the path by the plaintiffs. 3. The suit was contested by the defendant, inter alia, on the ground that the same was barred under Order 2, Rule 2 of the CPC and also on merit. Defendants admitted the factum of plaintiffs being owner in possession of land comprised in Khasra No. 102 and 103. However, they denied that there was any path upon land comprised Khasra No. 100 and 101. Existence of path on land comprised in Khasra No. 97 was admitted. Any obstruction being caused by them was denied. 4. Defendants admitted the factum of plaintiffs being owner in possession of land comprised in Khasra No. 102 and 103. However, they denied that there was any path upon land comprised Khasra No. 100 and 101. Existence of path on land comprised in Khasra No. 97 was admitted. Any obstruction being caused by them was denied. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues:- 1. Whether plaintiffs are entitled for the injunction, as prayed for? OPP 2. Whether suit is not maintainable, as alleged? OPD 3. Whether plaintiffs are estopped by their own acts, conduct and acquiescence, as alleged? OPS 4. Whether suit is barred by principle of res judicata, as alleged? OPD 5. Whether plaintiffs have no cause of action, as alleged OPD. 6. Relief." 5. On the basis of pleadings as also evidence led before the learned trial court, the issues so framed were answered as under:- Issue No. 1 .. Yes. Issue No.2 .. No. Issue No. 3 ... No Issue No. 4 .. No. Issue No. 5 .. No Relief .. Suit of the plaintiffs is decreed as per operative portion of the judgment." 6. Learned Trial Court decreed the suit of the plaintiffs by holding that there was sufficient evidence on record to substantiate that there was a physical threat to the plaintiffs from user of the path on land comprised in Khasra No. 100 and 101. Learned Trial Court held that Patwari and Naib Tehsildar had visited the spot and found the path in question to be at the spot. It further held that DW-1 (Inder Kumar) who appeared in the court admitted in cross examination that there was a public path over Khasra No. 97 and that there was another path leading to the house/cowshed of the plaintiffs over Khasra No. 100-101. On these basis learned Trial Court held that it stood proved in accordance with law that there existed a path which was being used by the plaintiffs. Accordingly, the suit was decreed by restraining defendant, Pano Devi for causing any obstruction from using of the path by plaintiffs as shown in Tatima Ex.PW3/B over land comprised in Khasra No. 100-101. 7. Feeling aggrieved defendants filed an appeal. 8. Accordingly, the suit was decreed by restraining defendant, Pano Devi for causing any obstruction from using of the path by plaintiffs as shown in Tatima Ex.PW3/B over land comprised in Khasra No. 100-101. 7. Feeling aggrieved defendants filed an appeal. 8. Learned Appellate Court held that Inder Kumar who was examined as DW-1 had admitted that there was a path over Khasra No. 97 on land comprised in Khasra No. 100 and 101. Learned Appellate Court also held that plaintiff had placed on record Jamabandi of the land of defendants Ex.PW1/B in which Khasra No. 100 and 101 was shown as abadi and also Jamabandi Ex.PW1/C which pertained to Khasra No. 97, wherein this khasra was reflected as ''gair mumkin rasta''. On these basis, learned Appellate Court concluded that this established that abadi of both the parties was situated upon Khasra No. 101 and 102. It also held that defendants had not disputed initiation of proceedings under Section 133 of the Cr.PC against them by the plaintiffs in the course of which the spot was visited by Naib Tehsildar, who prepared Ex.PW3/A which reflected that an old path started from Khasra No. 97 and crossed from Bauri and cowshed to reach the house of plaintiffs comprising Khasra No. 102 and 103. 9. Learned Appellate Court thus concluded that the path which goes from Khasra No. 97 to the house of the plaintiffs was not recorded in revenue record, but from the evidence led by the parties, it was apparent that in order to reach Abadi of the plaintiffs, said path lead to the house of the plaintiffs and this was duly proved from Tatima Ex.PW3/B which was verified by the Naib Tehsildar who visited the spot. It further held that defendant had admitted that there was a path over Khasra No. 97 and there was also a small path leading to the house/cowshed of the plaintiffs over Khasra No. 100 and 101. 10. Learned Appellate Court also held that there was no perversity with the findings returned by the learned Trial Court and it concurred with the judgment and decree so passed by learned Trial Court. 11. Feeling aggrieved appellant has filed this appeal. It is pertinent to mention here that as defendants themselves has not entered in the witness box, both learned Courts below drew adverse inference on this fact against them. 12. 11. Feeling aggrieved appellant has filed this appeal. It is pertinent to mention here that as defendants themselves has not entered in the witness box, both learned Courts below drew adverse inference on this fact against them. 12. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by both learned Courts below. 13. The suit filed by the plaintiff was for prohibitory injunction for restraining the defendants from causing obstruction over path comprised in Khasra No. 100 and 101, which according to them was being used by them for more than 60 years. On the basis of evidence placed by the parties on record, there is a concurrent finding returned in favour of the plaintiffs and against the defendants that there did exist a path over Khasra Nos. 100 and 101, as also Khasra No. 97 which was being used by the plaintiffs and defendants were accordingly restrained by learned Courts below for causing interference viz-a-viz used of the said path. The findings on fact in favour of the plaintiffs, as is apparent from the judgments and decrees passed by both the learned Courts below, are based upon documentary evidence which was placed on record primarily by the plaintiffs. While arriving at the said conclusion, learned Trial Court as also learned Appellate Court have taken into consideration the statement of one Inder Kumar who entered the witness box as DW-1 and who admitted the factum of existence of path over these Khasra numbers. Learned Courts below have also relied upon Jamabandis placed on record by the plaintiffs, as also report of Naib Tehsildar as Ex. PW3/A and Tatima as Ex. PW3/B, which also proved existence of path over Khasra No. 100 and 101. 14. During the course of arguments, learned counsel for the appellant could not point out that the findings of fact returned by both the learned Courts below against the appellant were perverse and not borne out from the record of the case. In this view of the matter, as this Court does not finds any substantial questions of law involved in this appeal, the same is dismissed. Pending miscellaneous application(s), if any, also stands disposed of.