Bhagat Ram and others vs Madan Lal and others

Rajiv Sharma, Judge

This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge Solan, Camp at Nalagarh in Civil Appeal No. 1-NL/13 of 1995, dated 16.2.2000.

Material facts necessary for the adjudication of this regular second appeal are that Predecessor-in-interest of appellants/plaintiffs, namely, Chet Ram (hereinafter referred to as ''the plaintiff'' for convenience sake) filed a suit for permanent prohibitory injunction restraining the Predecessors-in-interest of the respondents/defendants, namely, Amin Chand and Kishan Chand (hereinafter referred to as ''the defendants'' for convenience sake) from interfering in his possession over the land comprised in Khewat/Khatauni No. 126 min/138 min, Khasra No. 316 measuring 0-9 biswas, situate in the area of village Kunjahal and further restraining them from obstructing or causing any blockade of the passage which is situate in that land. According to him, he was in possession of the suit land since 1978 and his possession is open and continuous. The passage to his Abadi passes from Khasra No. 316. He has claimed the passage to be pucca. The defendants have threatened to block the passage on 8.5.1993. According to the plaintiff, in the revenue record, the suit land was shown in the ownership of the State of Himachal Pradesh. It is in these circumstances, the plaintiff, Chet Ram filed the suit.

The suit was contested by the defendants. According to the defendants, their adverse possession was from the time of their Predecessor-in-interest, Jappu since 1.7.1953. The land was ''Banjar Kadeem'' and they have made it cultivable. The land never vested in the State of Himachal Pradesh under the H.P. Village Common Land (Vesting & Utilization) Act. It was also claimed that the passage of plaintiff was from Khasra No. 317/2. The defendants had also filed a suit for permanent prohibitory injunction and declaration regarding the suit land, which was dismissed by the trial court. However, the appeal preferred by the defendants was accepted by the learned District Judge.

Replication was filed by the plaintiff. Issues were framed by the learned Sub Judge 1st Class, Nalagarh on 13.12.1993. He dismissed the suit on 6.3.1995. Plaintiff, Chet Ram filed appeal before the learned Additional District Judge, Solan, camp at Nalagarh. He dismissed the same on 16.2.2000. Hence, this regular second appeal against the judgment and decree dated 16.2.2000 passed by the learned Additional District Judge.

During the pendency of appeal, the plaintiff and defendants died. Their legal representatives were brought on record.

The regular second appeal was admitted on the following substantial question law on 26.7.2001:-

Whether both the Courts below have mis-read and mis-interpreted the oral and documentary evidence on record more specifically the revenue record and Exts. D-6 and D-7 to come to the conclusion that there is no passage over the land in dispute as alleged by the appellant-plaintiff?

Mr. N.S. Chandel, learned counsel for the plaintiff has strenuously argued that both the courts below have misconstrued and mis-read the oral as well as documentary evidence. According to him, the plaintiff has proved that the passage existed on Khasra No. 316.

Ms. Devyani Sharma, learned counsel for the defendants has supported the judgments and decrees passed by both the courts below.

I have heard the learned counsel for the parties and gone through the pleadings carefully.

Pritam Chand, special power of attorney of his father, Shri Chet Ram, plaintiff, has appeared as PW-1. According to him, the suit land statute in Khasra No. 316 is measuring 9 biswas. It was a Shamlat land and was ''Charand''. According to him, the plaintiff''s land comprising in Khasra No. 273 was situate towards Western side of the suit land and the residential house of the plaintiff was situate therein. He then stated that the doors of the house were towards East side and from Khasra No. 316 they had access to their residential house. He also deposed that the passage from Khasra Nos. 273 and 316 touches the PWD road. 100 feet in length and 25 feet in breadth passage is situate over Khasra No. 316. The defendants have threatened to block the path on 8.5.1993. There is no other alternative path for access to their house. They had been using the path from the time of their forefathers. He has got the plan prepared from Surat Ram, Patwari. He has proved on record Ex.P-2, Aks Musabi. Photographs have also been placed on record vide Ex.P-3, Ex.P-4 and Ex.P-5. He has also placed on record Ex.P-6 and Ex.P-7, the copies of jamabandis. He has further admitted that the defendants have filed a suit against the State of Himachal Pradesh. The appeal was filed before the learned Additional District Judge, Solan. It was decided in favour of the defendants on 10.5.1993 by the learned Additional District Judge, Solan.

PW-2, Mehar Chand has deposed that the well was situate towards East side and that the road passes from the residential house of the plaintiff to well and the same touches with PWD Road. According to him, if the passage is blocked, the plaintiff will have no other alternative passage.

PW-3, Karam Chand, Patwari has testified that he has prepared Naksha Shajra Kistwar, Ex.P-2 after seeing the residential house of the plaintiff. According to him, the house of plaintiff was situate in Khasra No. 273. Surja Ram, PW-4 has prepared the site plan Ex.PW-4/A.

Vijay Kumar, DW-1 holding special power of attorney has testified that his grand-father possessed the suit land in the year 1953. The land was ''Banjar'' and they made it cultivable. They came in possession of the suit land after the death of their grand-father. Their grand-father died in 1967. The suit was filed against the State of Himachal Pradesh. The learned Additional District Judge, Solan has decided the case on 10.5.1993 in their favour. The house of plaintiff was situate in Khasra No. 273 and has deposed that there was a passage to the house of plaintiff from Khasra No. 317. The plaintiff has no right, title or interest over Khasra No. 316.

DW-2, Ramji Dass has testified that the suit land was owned by Chappu and after his death; the respondents became owners of the suit land. The plaintiff has never remained in possession of the suit land. The defendants have instituted a suit against the State of Himachal Pradesh regarding the suit land. It was dismissed, as observed hereinabove by the trial court. Vide Ex.D-6, the judgment of the learned trial court was reversed by the learned Additional District Judge, Solan. He declared the defendants as owners in possession of the suit land.

According to DW-1, two other passages go to the abadi of plaintiff; one from Khasra No. 314 and 317/2 and the other is from Khasra No. 317. The plaintiff has also admitted that a civil suit was filed against him by the defendants with regard to Khasra No. 279, which was compromised. He has admitted that in the said compromise, he has given a passage of four feet in breadth in between Khasra Nos.314 and 273 to the defendants. There is variance in the statement of plaintiff and PW-2 with regard to the dimensions of the passage. Plaintiff has stated that the passage is 100 feet long and 25 feet wide, whereas, PW-2 has stated that the passage is 15 to 20 feet wide. It is unbelievable that such a wide passage exists in the village. It is evident from Ex.D-13, copy of jamabandi for the year 1991-92 that the defendants have been recorded as owners in possession of the suit land. Mutation No. 710 was sanctioned in their favour on the basis of judgment and decree passed by the learned Additional District Judge, Solan. In Ex.D-1, jamabandi for the year 1957-58, Chappu, father of the defendants was recorded in possession of the suit land. In copy of Misal Haquiat for the year 1962 again Chappu is recorded in possession of the suit land and the nature of suit land has been shown as Lehri Brani. It is further clear from Ex.D-3, copy of jamabandi for the year 1967-68, Ex.D-4 copy of jamabandi for the year 1972-73, Ex.D-5, copy of jamabandi for the year 1976-77 vide which the defendants have been recorded in possession of the suit land. The plaintiff has failed to prove by leading any tangible documentary evidence that the passage has been recorded there in over the suit land. It was necessary for the plaintiff to plead easementary right of passage over the suit land, which he has failed to do. The plaintiff has not led any tangible evidence to rebut the revenue entries, as discussed hereinabove, whereby initially father of the defendants was recorded owner in possession of the suit land and thereafter the defendants. The defendants have been declared owners in possession of the suit land by the learned Additional District Judge in civil appeal No. 39-NL/13 of 1992, decided on 10.5.1993. The present suit has been filed on 12.5.1993 to overcome the judgment dated 10.5.1993. The courts below have correctly appreciated the oral as well as documentary evidence adduced by the parties. The plaintiff has miserably failed to prove that he has no other passage to reach his abadi. It has been established on record that there are two other passages already available to the plaintiff, one from Khasra Nos.314 and 317/2 and the other from Khasra No. 317. The plaintiff has never assailed the revenue entries existing in favour of the defendants with regard to the ownership and possession of the suit land.

Accordingly, in view of the observations and discussion made hereinabove, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any. No costs.