Lohru Ram vs Arjun Singh and Others

Kuldip Singh, J.—This appeal is directed against the judgment, decree dated 17.05.2004 passed by learned District Judge (I), Kangra at Dharamshala in Civil Appeal No. 73/98 (RBT 71/2002) affirming judgment, decree dated 19.01.1998 passed by learned Sub Judge-II, Hamirpur, in Civil Suit No. 161 of 1992.

The facts, in brief, are that Appellant had filed a suit for permanent prohibitory injunction that he is owner in possession of land, more specifically, described in the plaint. The Respondents are strangers, who have No. right, title or interest in the suit land. The Respondents are threatening to forcibly create a path through the suit land, hence, suit was filed.

The suit was contested by the Respondents by filing written statement in which they have taken preliminary objections of maintainability, cause of action and stopple. On merits, it was pleaded that Appellant is co-owner and not absolute owner of the suit land. The other co-sharers have No. objection for the passage which is in existence since time immemorial. The Respondents are inhabitants of the same tika and using the passage since time of their ancestors and the right of easement is being enjoyed by all the villagers of tika.

The replication was filed and on the pleadings of the parties, the following issues were framed:

Whether the Plaintiff is entitled for decree of permanent prohibitory injunction as prayed for? OPP.

Whether the suit is not maintainable as alleged? OPD.

Whether the Defendants have acquired the right of passage by way of easement through the suit land as alleged? OPD.

Whether the Plaintiff is stopped to file the suit by his act and conduct? OPD.

Whether the Defendants are entitled to special costs u/s 35-A Code of Civil Procedure? OPD.

Relief.

Issues 1, 4 and 5 were answered in negative, issues 2 and 3 in affirmative and the suit was dismissed on 19.01.1998. The appeal filed by the Appellant in the lower Appellate Court was dismissed on 17.05.2004, hence, second appeal which has been admitted on the following substantial question of law:

Whether the judgment under challenge can be sustained in view of contradictory reports of two local Commissioners appointed in the case?

I have heard learned Counsel for the parties and have also gone through the record. It has been submitted by learned Counsel for the Appellant that Local Commissioners'' reports 3 Ex.PW3/A and Ex.DW6/B are contradictory. In these circumstances, the Courts below should have appointed another Local Commissioner in order to determine the real controversy between the parties. The learned Counsel for the Respondents has submitted that two Courts below have recorded a finding of fact in favour of the Respondents, No. substantial question of law is involved in the appeal. He has prayed for dismissal of the appeal.

PW-3 Kishore Sharma, Advocate, was appointed Local Commissioner and he submitted his report Ex. PW3/A and site plan Ex. PW3/B. He has stated that he had not given any notice to the other side. He has not stated that he prepared report after identification of the land in dispute through revenue agency. He has stated that it has not been written in the report that land was got identified by Defendants and they were present. He has stated that Patwari was not with him. The later version of PW-3 that disputed land was located by parties is not believable in absence of specific reference to this effect in the report Ex.PW-3/A. In these circumstances, the Courts below have rightly not believed the report Ex. PW3/A.

In so far as the report Ex. DW6/B is concerned, DW-6 B.C. Uppal, Advocate, has stated that on 13.01.1993, he visited the spot. He proved report Ex. DW6/B. This witness was not cross-examined. In other words, the statement made by DW-6 B.C. Uppal, Advocate, was accepted by the Appellant. In the grounds of appeal in the lower Appellate Court, the Appellant has not raised specific grievance against report Ex. DW6/B. It appears that even at the time of hearing of appeal in the lower Appellate Court, No. question was raised by the Appellant regarding the validity of 4 report Ex. DW6/B. Once the Appellant has not disputed the correctness of report Ex. DW6/B in two Courts below, it is too late for the Appellant now to question the validity of the report Ex. DW6/B. The two Courts below have rightly relied report Ex. DW6/B in dismissing the suit of the Appellant. There is No. merit in the appeal. The substantial question of law noticed above is decided against the Appellant.

In view of above discussion, the appeal fails which is accordingly dismissed, No. costs.