Rup Chand and Another vs Pehlad and Others

Hemant Gupta, J.—The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for permanent injunction in respect of strip of land said to be passage was dismissed. The plaintiffs sought a decree for permanent injunction alleging that strip of land, subject matter of litigation, is a passage for reaching to their ancestral land measuring 1892 sq. yards as delineated by letters ''ABCDEF'' in village Surajgarh. It is alleged that this passage abuts the shamlat chowk and that the defendants have no right, title or interest in this passage nor they have any right to enter upon the ancestral land.

On the other hand, the defendants denied that there is any passage ''AB'' leading to the ancestral land of the plaintiffs and pointed out that the land in dispute belonged to Richhpal, ancestor of the plaintiffs and passage for the said land is towards its north through the land of the plaintiffs. It is further alleged that the plaintiffs, who were descendants of Richhpal have no concern with the land of the defendants, who are descendants of Patram and vice-versa.

From the pleadings of the parties, the following issues were framed:

Whether there exists a path shown at point ''AB'' in the site plan produced by the plaintiffs? OPP

If issue No. 1 proved, whether the plaintiffs are entitled for the injunction as prayed for? OPP

Whether the plaintiffs have no locus standi to file the present suit? OPD

Whether the suit is not maintainable in the present form? OPD

Whether the suit is false and frivolous and the defendants are entitled for special costs? OPD

Relief.

After considering the evidence led by the parties, the learned trial Court on the basis of map of abadi deh Ex. P1 found that the passage ''AB'' is in existence. It is apparent from the site plan Ex. P2 as well as site plan Ex. D2. The learned trial Court returned the following findings:

...If the site plan Ex. P2 is read in the light of statements of PW-2 Rup Chand and PW-4 Mahabir, then it comes out that the lands underneath the houses of Inder and Pehlad, land of alleged Shamlat Chowk and the land underneath the houses of Duli Chand, Dharma and Lila Ram, which have been shown towards the Southern side of the balai in dispute, belonged to Pat Ram and it was one parcel of land owned by the ancestor of the defendants namely Pat Ram. The defendants had constructed their houses over the land left by Pat Ram according to their convenience. The alleged shamlat chowk which has been shown in red-colour by the plaintiffs in plan Ex. P2 was a part of the land owned by Pat Ram. It is not a shamlat chowk rather the private vacant land of the descendants of Pat Ram which is being used by them for their common purpose....

In view of the said finding, the learned trial Court held that shamlat chowk is not in existence and that it is the land of the defendants. The trial Court also found that no evidence has been led by the plaintiffs to prove that the alleged passage was in existence. Accordingly, the suit was dismissed. Such findings have been affirmed in appeal by the learned first Appellate Court and it was held to the following effect:

9.....The fallacy in the case of the plaintiffs is that they have treated the vacant land belonging to the ancestors of the defendants as shamlat chowk. In fact, there did not exist any shamlat chowk. There is also no independent evidence on record to show that there existed any shamlat chowk as shown in the plan in red colour. In my opinion, the plaintiffs have wrongly shown this shamlat chowk in red colour on the eastern side of the alleged passage ''AB'' in plan Ex. P1....

In the present second appeal, the appellants have not raised any substantial question of law. A reading of the memorandum of appeal shows that the findings recorded by the Courts below are sought to be disputed by re-appreciation of evidence. It is a pure finding of fact in respect of non existence of shamlat chowk and the passage. Such finding is based upon correct appreciation of evidence and is finding of fact. Consequently, I do not find that such finding of fact raises any substantial question of law for consideration. Dismissed.