Jeet Chand vs Amar Nath

Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree dated 21.6.2012 rendered by the District Judge, Una in Civil Appeal No. 139-XIII/2011. "Key facts" necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) filed a suit for permanent prohibitory injunction seeking to restrain the defendant from interfering, making any passage, raising any sort of construction or changing the nature of the land measuring 0-07-16 hectares comprised in Khasra No. 633, Khatauni No. 59 min, Khewat No. 43 min and land measuring 0-00-54 hectares comprised in Khasra No. 637/2, Khatauni No. 136 min, Khewat No. 75 min as entered in the Jamabandi for the year 1999-2000 situated in village Aisan Mauja Muchhali, Tehsil Bangana, District Una. He has also prayed for mandatory injunction directing the defendant to remove the super structure, if any, raised by the defendant forcibly during the pendency of the suit. According to him, the suit land is owned and possessed by him alongwith co-sharers and the defendant is stranger to the suit land. The defendant has no right, title and interest over the suit land. He was threatening to interfere in the suit land by raising construction and making passage.

The suit was contested by the defendant. According to the defendant, plaintiff is neither owner nor in possession of Khasra No. 637. According to him, some part of old passage passes through Khasra No. 633 measuring about 1 1/2 feet. According to defendant, there is old Abadi of plaintiff in Khasra No. 635. It is further submitted that in land measuring 0-00-10 hectares comprised in Khasra No. 637, Chajja of house has been entered as per copy of jamabandi for the year 1999-2000.

The replication was filed by the plaintiff. Learned Civil Judge (Junior Division), Court No. II, Una framed issues on 17.9.2007. He dismissed the suit on 1.10.2011. The plaintiff preferred an appeal before the learned District Judge Una. He allowed the same on 21.6.2012. Hence, the present Regular Second Appeal. It was admitted on the following substantial question of law on 5.10.2012:

Whether the lower appellate court while reversing the judgment and decree passed by the trial court has misread, misconstrued and failed to appreciate the pleadings as well as evidence produced by the parties on both sides in its right perspective?

Mr. Ramakant Sharma has vehemently argued that the first appellate court has misconstrued and misinterpreted the oral as well as documentary evidence led by the parties. According to him, the defendant has proved the existence of passage over the suit land.

Mr. B. Nandan Vashisht has supported the judgment and decree dated 21.6.2012.

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

Plaintiff has led his evidence by way of affidavit. He has supported the averments contained in the plaint. In cross-examination, he has admitted that Khasra No. 637 belongs to the State Government. However, he has volunteered that it has been allotted to him after correction. He has denied the possession of the defendant on Khasra No. 637/3. He has also denied that there exists old passage on Khasra No. 633. He has denied that in order to reach Khasra No. 637 and 633, 1 1/2 feet passage exits. He has deposed that 1 1/2 feet land of Khasra No. 637 is used as passage. However, volunteered that it was owned by him. He has admitted that Sub Divisional Magistrate had visited the spot 1 1/2 months back. He has also admitted that on 25.9.2006, Rajinama mark ''A'' took place. He has stated that he was forced to make it. He has filed an appeal against the order of the Panchayat.

PW-2 Prakash Chand has led his evidence by filing affidavit. In his cross-examination, he has denied that old passage exists on Khasra No. 633. He has shown his ignorance about the compromise.

DW-1 Chaman Lal has led his evidence by way of affidavit. According to him, the plaintiff has admitted before the village Panchayat that he will not block the passage going through Khasra No. 633. The village Panchayat passed order on 25.9.2006. He has stated that the passage leads to Abadi of the defendant and veterinary hospital. The plaintiff is neither owner nor in possession of Khasra No. 637. Some part of old passage passes through Khasra No. 633, i.e. 1 1/2 feet. In his cross-examination, he has categorically admitted that plaintiff is owner of Khasra No. 633. He did not know who was owner of Khasra No. 637/2. Then volunteered that it belonged to Government. According to him, the passage to Amar Nath land passes through Khasra No. 633. He has also deposed that Sub Divisional Magistrate visited the spot. He has denied that an alternative passage exists through flour mill. According to him, there is only one passage leading to his house. He has denied the suggestion that the passage also passes through the land of Kishan Dass.

DW-2 Jeet Ram defendant has also led his evidence by filing affidavit. He has admitted in his cross-examination that the plaintiff is owner of Khasra Nos. 633 and 637/2. He had appeared before the Sub Divisional Magistrate. He has denied that he could reach his house by using the passage through flour mill. Volunteered that when the plaintiff blocked the passage, he with the consent of Kishan Dass, passing through his land. This is the entire oral evidence led by the parties.

The parties have also placed on record copies of Jamabandi for the year 1999-2000 Ex.P-1, Ex.P-2, D-1 and D-2. According to the revenue record, plaintiff is owner of Khasra Nos. 633 and 637. DW-1 Chaman Lal has admitted that Khasra No. 633 is owned by the plaintiff. DW-2 Jeet Chand have categorically admitted that the plaintiff is owner of Khasra Nos. 633 and 637/2. The defendant has not asserted his right to use the passage in his written statement. It is only stated that old passage leads to Abadi, i.e. Khasra No. 635 and old veterinary hospital.

Mr. Ramakant Sharma has placed strong reliance upon order dated 25.9.2006 passed by the Panchayat. According to him, the plaintiff had undertaken not to block the passage of defendant. The plaintiff has filed an appeal against the order dated 25.9.2006. Thereafter, the Sub Divisional Officer has visited the spot on 22.8.2008. The Pradhan, Gram Panchayat was also present on the spot. Gram Panchayat was not aware of the appeal filed by the brother of the defendant which was pending in the court of Divisional Commissioner, Kangra. The Sub Divisional Magistrate has specifically stated that the parties should wait for the out come of the appeal pending before the Divisional Commissioner and the path could not be restored to the defendant. It has also come in the statement of the plaintiff that Rajinama dated 25.9.2006 was forcibly obtained from him. According to the evidence there exists a common approach to the room of the defendant through a flour mill (Atta Chaki). Thus, there is an alternative passage available to the defendant to reach his room. In order to prove the use of passage, it was necessary for the defendant to assert his right in the written statement. The first appellate court has correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the judgment passed by it. Accordingly, in view of the observations and analysis made hereinabove, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.