Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 1049 (HP)

Gurmukh Singh v. Manohar Lal Butail

2025-05-19

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. 1. Heard counsel for the parties. Perused the pleadings and record. 2. Admittedly, in the case at hand, the petitioner, who is the plaintiff before the trial Court had purchased an area/RCC lintel measuring 85.70 sq. mtrs. in the first floor of the building known as Butail building from the respondent vide registered sale deed dated 27.02.2010. The same is located on a portion of land comprised in Khasra No.547. The balance land in the said khasra number is vacant. The vacant land is owned and possessed by the respondents. 3. The petitioner/plaintiff is claiming a path to his property emanating from Khasra No.587. After emanating from the aforesaid khasra number, the path is stated to run through Khasra Nos.554, 555 and 557 and a vacant area of the suit landbearing Khasra No.547 at points A, B, C, D, E, F, G & H, as shown in the site, plan got prepared by the petitioner/plaintiff from Er. Sh. B.C. Sharma. 4. Per contra, respondents contend that there is a common path leading to the property purchased by the petitioner/plaintiff through Khasra Nos.527 and 564 leading upto Khasra No.547. 5. In the aforesaid facts and attending circumstances, the trial Court while passing an order under Order 39 Rule 1 and 2 CPC, restrained the present respondents from blocking the path leading to the property of the petitioner from Khasra No.587 till the disposal of the main suit. Besides the aforesaid, the learned trial Court restrained the present petitioner/plaintiff by way of an ad interim injunction from causing any type of interference over the portion of the suit land comprised in Khasra No.547 except the land/property so sold to him i.e. 85.70 sq. meters in the first floor of the building known as Butail building (RCC Lintel). 6. Two appeals were preferred, one by the present petitioner and the other by the present respondents before the First Appellate Court. The First Appellate Court modified the order insofar as it restrained the respondent from restraining/blocking the path leading to the house of the petitioner from Khasra No.587. 7. The path emanating from Khasra No.587, as is being claimed by the present petitioner/plaintiff has been depicted in the site plan placed on record. The First Appellate Court modified the order insofar as it restrained the respondent from restraining/blocking the path leading to the house of the petitioner from Khasra No.587. 7. The path emanating from Khasra No.587, as is being claimed by the present petitioner/plaintiff has been depicted in the site plan placed on record. As pointed out correctly by the First Appellate Court that at this initial stage, the same cannot be looked into, as it has yet to be proved by the petitioner/plaintiff by way of leading evidence at the appropriate stage. To the contrary, the respondents have placed on record revenue record prepared by officials and discharge of their public duty i.e. Nakal Aks Tatima Sajra Kistwar, wherefrom it is evident that there is a common path leading to the house of the petitioner/plaintiff through Khasra No.527 and 564. The said document carries with it a presumption of truth. Perusal of the sale deed clearly reflects that when the petitioner had purchased a portion of the lintel in the first floor of the building, the respondents had disclosed to him about the pending dispute of a passage with Mr. Vijay Vashishta from land comprising Khasra Nos.554, 555 and 557. 8. Learned counsel for the petitioner has drawn the attention of this Court to the fact that the path passing through Khasra No.564 is stated to have been blocked. In this regard, he has drawn the attention of this Court to page 216 of the paper book (record of the trial Court) wherein vide letter dated 20.02.2017, the Architect Planner while considering the plan of the respondents has raised an issue with respect to the path on Khasra No.564 being blocked. As already stated supra, the path passing through Khasra No.564 has been shown to be a public path in the revenue record. Remedy for removal of encroachment of the public path is to be availed by a person aggrieved in accordance with law. The same however does not establish the fact that there is no path passing through Khasra No.564. In fact, blockade of a path means that there is path in existence over Khasra No.564 9. The first appeal filed, in the case at hand, is an appeal on principle, against the exercise of discretion exercised by the trial Court. The same however does not establish the fact that there is no path passing through Khasra No.564. In fact, blockade of a path means that there is path in existence over Khasra No.564 9. The first appeal filed, in the case at hand, is an appeal on principle, against the exercise of discretion exercised by the trial Court. Interference in the order passed by the trial Court by the First Appellate Court is based on well settled principles of law regulating grant or refusal of interim injunctions and the fact that the trial Court in passing the order had ignored relevant material in the case at hand. In this respect, reference can be made to judgment reported in 1990 (Supp) SCC 727 titled Wander Ltd. & Anr. Vs. Antox India Pvt. Ltd., decided on 26.04.1990, the relevant extract is reproduced as under:- “…...14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reasses the material and seek to reach a conclusion different from the one reasonably possible on the material. The appellate Court would normally not with justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court’s exercise of discretion. After referring to these principles Gajendragadker, J.in Printers (Mysore) Private Ltd. Vs. Pothan Joseph (SCR 721). ….These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘…. After referring to these principles Gajendragadker, J.in Printers (Mysore) Private Ltd. Vs. Pothan Joseph (SCR 721). ….These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘…. the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established and any difficulty that arises is due only to the application of well settled principles in an individual case.” 10. In the case at hand, it is evident that the First Appellate court had interfered in the interim order passed by the trial Court on account of the fact that the same suffered from perversity as relevant revenue record i.e. Nakal Aks Tatima Sajra Kistwar depicting a public path leading to the property of the petitioner had been ignored. 11. The present petition has been preferred under Article 227 of the Constitution of India. This Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. On the other hand in the supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. (See Sadhana Lodh vs. National Insurance Co. Ltd. & Another, (2003) 3 SCC 524 and Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181 ) 12. In the case at hand, for the reasons stated herein above, I am of the considered view that no ground is made out in the present petition for invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 13. In view of above terms, I find no merit in the present petition and the same is dismissed accordingly. Pending miscellaneous application(s), if any, shall also stand disposed of. 14. Parties are directed to appear before the learned trial Court through their counsel on 28.05.2025.