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2021 DIGILAW 377 (HP)

Mehar Singh v. Hem Chand & Ors.

2021-07-07

SANDEEP SHARMA

body2021
JUDGMENT Sandeep Sharma, J. - Instant regular second appeal lays challenge to the judgment and decree dated 9.7.2019, passed by the learned Additional District Judge-I, Shimla, in CA No. 45-S/13 of 2018, affirming the judgment and decree dated 15.9.2018, passed by the learned Civil Judge-II ( Sr. Div.), Shimla, District Shimla, H.P., , whereby civil suit bearing CS No. 119-1 of 2015 having been filed by the appellant/plaintiff (herein after referred to as "the plaintiff") came to be dismissed. 2. Plaintiff filed a suit for permanent prohibitory injunction, restraining the respondents/defendants (in short "the defendants") from blocking public path, averring therein that he is one of the co-owner in possession of land comprised in khasra No.79 Khewat, Khatauni No.1min/1 situate at Mohal Shahal, Tehsil Shimla Rural, District Shimla, H.P., and in the year, 2009, he started construction work of his house at Shahal. The land of the defendant is adjoining to the aforesaid land of the plaintiff. Plaintiff alleged that defendant is putting obstruction on the common path, which is only passage connecting his land to the main road. Plaintiff alleged that defendants are trying to block path of the plaintiff, which exists at the boundary of khasra No. 78 since year 2009. Plaintiff alleged that defendant not only blocked the passage leading to his house from the main road, but has also blocked the common path leading to his newly constructed house and as such, he is incurring huge losses. In the aforesaid background, plaintiff prayed that his suit may be decreed and defendants may be restrained from blocking the common path and creating any nuisance near the house of the plaintiff situate on khasra No.79. 3. Aforesaid claim put forth by the plaintiff came to be resisted by the defendants, who specifically denied that plaintiff has started construction in the year, 2009. Defendants alleged that the plaintiff filed a false complaint before SDM (Rural) with respect to the path and present suit has been filed solely with a view to grab the path through the cultivated land of the defendants. Defendants spe their land. Defendants in their written statement claimed that alternative path exists for the land of the plaintiff, which is being used by him prior to filing of the suit. Defendants categorically stated in their reply that after completion of new construction, plaintiff is intending to use shortcuts to his house using land of the defendants. Defendants spe their land. Defendants in their written statement claimed that alternative path exists for the land of the plaintiff, which is being used by him prior to filing of the suit. Defendants categorically stated in their reply that after completion of new construction, plaintiff is intending to use shortcuts to his house using land of the defendants. Defendants have specifically stated in their reply that there exists no common path through the land in any manner, rather plaintiff is trying to obtain path from the land of the defendants by dint of force and by adopting legal means. Defendants stated in their written statement that since there exists no path, there is no question of creating any hindrance. Defendants have further stated in their written statement that nothing was found against them during the inquiries conducted by the departmental authorities and as such, now the petitioner with view to harass them have filed the present suit. 4. By way of replication to the aforesaid written statement, plaintiff while denying the claim put forth by the defendants reiterated the averments contained in the suit. In the replication, plaintiff claimed that there exists common path through the land of the defendants as per Wajib-Ul-Uraz. On the basis of aforesaid pleadings adduced on record by the respective parties, court below framed following issues: "1. Whether plaintiff is entitled for a decree of permanent prohibitory injunction , as prayed for? ..OPP 2. Whether suit is not maintainable? OPD. 3. Whether the plaintiff has suppressed the material facts from this court?....OPD 4. Whether plaintiff is estopped by his act and conduct from filing the present suit? OPD 5. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 6. Whether plaintiff has no cause of action to file the present suit? OPD 7. Whether suit has not been framed as per the requirement of Order 7 Rule 3 CPC? OPD. 8. Relief." 5. Subsequently, on the basis of pleadings as well as evidence led on record by the respective parties, learned trial Court, dismissed the aforesaid suit filed by the plaintiff vide judgment dated 15.9.2018. Plaintiff, being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court filed an appeal under Section 96 of CPC in the court of learned Additional District Judge-I, Shimla, which also came to be dismissed vide judgment dated 9.7.2019. Plaintiff, being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court filed an appeal under Section 96 of CPC in the court of learned Additional District Judge-I, Shimla, which also came to be dismissed vide judgment dated 9.7.2019. In the aforesaid background, plaintiff has approached this Court in the instant proceedings, laying therein challenge to the impugned judgments and decrees passed by the courts below. 6. With the consent of the learned counsel for the parties, matter is being disposed of at admission stage. Record perused. 7. Mr. O.P. Sharma, learned Senior counsel, appearing for the plaintiff, while making this court peruse judgments and decrees passed by the courts below vis- -vis evidence led on record by the plaintiff, vehemently argued that both the courts below have failed to appreciate the evidence in its right perspective, as a consequence of which, great prejudice has been caused to the plaintiff, who on account of obstruction caused by the defendants is not only incurring huge losses as his construction material lying on the spot is not being used. While referring to Ext.PW2/A i.e. Wajib-Ul-Arz, Mr. Sharma, argued that both the courts below have misread and misinterpreted the aforesaid document, perusal whereof clearly reveals that there is path/passage, which passes through, khasra No.78 and same is being used by the villagers for years together. 8. Mr. Romesh Verma, learned counsel for the plaintiff strenuously argued that there is no illegality and infirmity in the impugned judgments and decrees passed by the courts below because same are based upon the proper appreciation of the evidence adduced on record by the respective parties. Mr. Verma, contended that otherwise also, no interference, if any, of this court is called for in the instant proceedings, filed under Section 100 CPC on account of concurrent finding of fact and law recorded by the courts below. While referring to the grounds of appeal as well submissions made by the learned Senior counsel representing the plaintiff, Mr. Verma, contended that since no perversity, if any, in the impugned judgments and decrees has been pointed out by the plaintiff, instant appeal filed at the behest of the plaintiff deserves outright dismissal. Lastly, Mr. While referring to the grounds of appeal as well submissions made by the learned Senior counsel representing the plaintiff, Mr. Verma, contended that since no perversity, if any, in the impugned judgments and decrees has been pointed out by the plaintiff, instant appeal filed at the behest of the plaintiff deserves outright dismissal. Lastly, Mr. Verma, argued that there is no evidence, be it ocular or documentary, led on record by the plaintiff suggestive of the fact that path, if any, leading to the house of the plaintiff passes through the land of the defendants. While making this Court peruse pleadings as well as documents adduced on record by the plaintiff, Mr. Verma, contended that neither any spot map nor tatima showing passage, if any, passing through the land of the defendant ever came to be placed on record, and as such, court below rightly held that suit of the plaintiff is not as per the requirement of Order 7 Rule 3 CPC. 9. Having heard the learned counsel for the parties and perused material available on record by the respective parties vis- -vis reasoning assigned by the courts below while passing impugned judgments and decrees, this Court finds no illegality and infirmity in the same, which otherwise appear to be based on proper appreciation of evidence led on record by the respective parties and as such, no interference is called for. 10. Though in the case at hand, plaintiff by way of filing suit for permanent prohibitory injunction, restraining the defendant from blocking public path claimed that passage leading to his house not only passes through the land of the defendants, but it has been also shown as a public passage in Wajib-Ul-Az Ext.PW2/A. However, careful perusal of Wajib-Ul-Az tendered in evidence by the plaintiff nowhere suggests that there is any path/passage through khasra No. 78, which admittedly belongs to the defendants. Similarly, there is no material on record suggestive of the fact that aforesaid passage, if any, passing through khasra No. 78 is/was being used by the plaintiff and other villagers for years together. In the case at hand, plaintiff though alleged that there exists path through the land of the defendant, but revenue record placed on record i.e. Jamabandi for the year, 2009-10 Ext.Dx1 suggests that same belongs to the defendant and nature of this land is Bakhal Abal. In the case at hand, plaintiff though alleged that there exists path through the land of the defendant, but revenue record placed on record i.e. Jamabandi for the year, 2009-10 Ext.Dx1 suggests that same belongs to the defendant and nature of this land is Bakhal Abal. There is no specific mention in the revenue record that some path/passage passes through the aforesaid land/khasra number. Otherwise also, if the statement of PW3 i.e. plaintiff, is perused, he has nowhere claimed/stated specifically that there is permanent passage leading to his house through khasra No.78, which otherwise is owned and possessed by the defendants. Plaintiff, in his examination in chief, has nowhere stated that since when he as well as other villagers had been using the aforesaid path existing on the land of the defendants, rather he has simply in very vague manner has stated that he as well as other villagers have been using this path for centuries. 11. Though plaintiff with a view to demonstrate that passage passes through the land of the defendant tendered on record some photographs, but same never came to be proved in accordance with law and as such, rightly were not read in evidence by the courts below. Most importantly, no photograph, if any, with regard to obstruction/blockage of path by the defendant has been tendered on record. Moreover plaintiff in his examination in chief has nowhere stated that photographs tendered on record i.e. Mark-D are of the alleged path. 12. Plaintiff while deposing as PW4 before the court below deposed that he is owner in possession of the joint property comprised in khasra No. 79 khewat Khatauni No.1 min/1 situate at Mohal Shahal, Tehsil and District Shimla, H.P., whereas defendants are the owner of the joint land i.e. khasra No. 78. As per the plaintiff, defendants have obstructed the government path, which is only passage connecting his house to the main road. Interestingly, plaintiff in his examination in chief, deposed that defendants are trying to obstruct common path situate on the boundary of khasra No. 78, but, as has been taken note herein above, there is no revenue record available on record suggestive of the fact that common path, if any, exists between khasra Nos. 78 and 79. Plaintiff claimed that common path exists at the boundary of khasra No.78 since the year 2001. 78 and 79. Plaintiff claimed that common path exists at the boundary of khasra No.78 since the year 2001. Though in his cross-examination, he admitted that he got his land demarcated, but failed to place on record report of demarcation, from where certainly, factum with regard to existence of common path, if any, between khasra Nos. 78 and 79 could be ascertained. He also admitted in his crossexamination that person namely Khem Chand had filed case against him before the court No.1 at Shimla. He also admitted that in demarcation, he was found to have encroached on the land of some other person. Plaintiff also admitted that as per Ext.DX1 nature of the land is recorded as Bakhal Abal. While denying suggestion put to him that no path exists through khasra No. 78, plaintiff admitted that next to khasra No. 78 is the land of Hari Nand and Khem Chand. Plaintiff also admitted that neither the school authorities nor the panchayat officials ever filed any complaint against the defendant regarding blockage/obstruction of the alleged path. Aforesaid admission made by the plaintiff in his cross-examination is of great significance for the reason that if there was common passage passing through the land of the defendant, and the same was being used by the children going to the school as well as other villager, complaint ought to have been made. However in the case at hand, neither complaint nor objection, if any, has been raised by the school authorities as well as panchayat. 13. Pw3 Abhi Ram, who happened to be neighbor of the plaintiff, stated that plaintiff started construction of his house 3-4 years ago. He deposed that there was a path through the land of the plaintiff as well defendants. He also stated that said path used to lead towards the school. He also stated that path was blocked few years ago and same was being used by the plaintiff to reach his house. This witness also deposed that they had been using path through the land of the Hari Nand to reach their fields since many centuries. He also stated that earlier people of panchayat used this passage to go to the school and bus-stand and there is no other path to reach the house of the plaintiff. This witness also deposed that they had been using path through the land of the Hari Nand to reach their fields since many centuries. He also stated that earlier people of panchayat used this passage to go to the school and bus-stand and there is no other path to reach the house of the plaintiff. Most importantly, this witness stated that other path to reach the house of the plaintiff is long, meaning thereby, there is an alternative road /path available to the house of the plaintiff. 14. Pw1 is the reader in the office of SDM Rural Shimla, who came present before the court alongwith Ext.PW1/A i.e. complaint filed by the plaintiff against the defendants. PW2 Sh. Madan Singh, Patwari, Patwar Circle, Bhont brought the copy of Wajib-Ul-Arz i.e. Ext.PW2/A . 15. Having carefully perused evidence adduced on record, by the respective parties, be it ocular or documentary, this court finds that plaintiff has not been able to prove on record that there exists path in khasra No. 78 owned and possessed by the defendants. Neither, the plaintiff specifically deposed before the court below that there is common path recorded in the revenue record leading to the house of the plaintiff through land of the defendants, nor any of the plaintiff witnesses categorically stated that defendants have obstructed/blocked the passage leading to the house of the plaintiff, rather all the plaintiff witnesses categorically admitted that khasra No.78, wherein allegedly, path leading to the house of the plaintiff has been blocked, belongs to the defendant Hari Nand. Plaintiff, with a view to prove factum with regard to existence of passage in Khasra No. 78 placed heavy reliance upon the Wazib-Ul-Arz Ext.PW2/A, but as has been taken note herein above, no path, if any, passing through the khasra No. 78 has been shown to be recorded in Wazib-Ul-Arz. Apart from above, no path in the aforesaid khasra number can be seen in the tatima Ext.PW4/B. Though in the case at hand, plaintiff alleged that path exists in the corner of khasra No. 78, but interestingly, he failed to give description of the corner of the khasra No. 78, where admittedly path exists. Apart from above, no path in the aforesaid khasra number can be seen in the tatima Ext.PW4/B. Though in the case at hand, plaintiff alleged that path exists in the corner of khasra No. 78, but interestingly, he failed to give description of the corner of the khasra No. 78, where admittedly path exists. Neither he placed on record any spot map nor any tatima specifically depicting the existence of path through khasra No. 78 and as such, court below rightly recorded the finding that suit has been not framed as per requirement of Order 7 Rule 3 CPC, which specifically provides that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and in case, such property can be identified by the boundaries or numbers in a record of settlement or survey the plaint shall contain specific details of boundaries or numbers. 16. In the case at hand, though plaintiff alleged that defendant blocked the passage to his house, passing through khasra No. 78, but in his examination-in-chief, he himself stated that there was a path on the boundary of khasra No. 78, which is admittedly adjoining to the property of the plaintiff in khasra No. 79. Since path, if any, exists on the boundary of khasra Nos. 78 and 79, plaintiff with a view to prove factum with regard to existence of path ought to have placed on record some spot map or tatima specifically depicting therein existence of path. 17. Having carefully perused entire evidence available on record, this Court finds no illegality and infirmity in the impugned judgments and decrees passed by the courts below and as such, no interference is called for. Moreover, no question much less substantial has been raised in the instant appeal for determination/adjudication and as such, present appeal deserves to be dismissed. 18. At this stage, Mr. Romesh Verma, learned counsel, contended that this court has very limited jurisdiction to re-appreciate the evidence in the instant proceedings, especially in view of the concurrent findings of facts and law recorded by the courts below. In this regard, to substantiate his aforesaid plea, he placed reliance upon the judgment passed by the Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264 , relevant para whereof reads as under:- "16. In this regard, to substantiate his aforesaid plea, he placed reliance upon the judgment passed by the Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264 , relevant para whereof reads as under:- "16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." 19. It is quite apparent from the aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned courts below cannot be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by the learned courts below, rather same are based upon correct appreciation of evidence and as such, same deserves to be upheld. 20. In the facts and circumstances discussed above, this Court is of the view that findings returned by the trial Court below, which were further upheld by the first appellate Court, do not warrant any interference of this Court as findings given on the issues framed by the trial Court below as well as specifically taken up by this Court to reach the root of the controversy appear to be based on correct appreciation of oral as well as documentary evidence. Hence, the appeal fails and dismissed accordingly. There shall be no order as to costs.