IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 200 of 2002. Reserved on: 18.03.2011. Decided on 21.04.2011. _____________________________________________________ Kewal Ram and another. …Appellants. -Versus- Puran Sukh. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellants. : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For the respondent. : Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 27.03.2002, passed by the learned District Judge, Kinnaur in Civil Appeal No. 34 of 2001. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake), had instituted a suit for declaration with consequential relief of permanent injunction against the appellants-defendants (hereinafter referred to as ‘the defendants’ for brevity sake), on the allegations that he had been owner in possession of land described in Khasra Nos. 882, 886, 340/1 and 881/1 in revenue estate Up-Mohal Kanahar, Tehsil Kumarsain, District Shimla. This 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - land was allotted to the plaintiff by the State by way of Nautor on 23.04.1971. Patta was also granted in favour of the plaintiff. The record relating to the allotment in favour of the plaintiff was gutted in fire in 1972. The record was re-constructed. Thereafter, fresh allotment order was issued in favour of plaintiff on 21.04.1995, on the basis of which, mutation was attested on 13.03.1996. 3. Case of the plaintiff, in a nut-shell, is that he had been approaching his Nautor land through the boundary of Khasra Nos. 887 and 888. Defendant No. 1 has been sanctioned Nautor land as per order dated 22.12.1979. According to the plaintiff, he had been using this path for the last more than 20 years. However, the defendant has blocked the path. According to the plaintiff, the defendant has no right, title or authority to block the path passing through Khasra Nos. 887 and 888. Plaintiff has also brought to the notice of the local Gram Panchayat about the blockade of path by the defendant No. 1. Plaintiff has sought declaration to the effect that he had a right of passage through common boundary of Khasra Nos. 887 and 888 as per the field map Ex. P-1. Defendants No. 1 and 2 were sought to be permanently restrained from blocking the path in dispute by issuance of a decree of perpetual injunction against them. 4. The suit was contested by the defendants. The defendants No. 1 and 2 had admitted that Khasra Nos. 887 and 888 had been allotted in favour of defendant No. 1 on 22.12.1979. According to defendants No. 1 and 2, the path to Nautor holding of the plaintiff passed through Khasra Nos. 702, 713, 745, 775, 793 and 813 as per field map, copy of which is Ex.-DB. According to - 3 - them, there was Odi-Kotgarh highway passing through Khasra No. 449. The Odi-Kotgarh highway was also connected to the Nautor holding of the plaintiff through alternative path. It was denied that the plaintiff had been using the path for the last 20 years. According to them, the plaintiff had not acquired any right to use Khasra Nos. 887 and 888. The plaintiff has filed replication to the written statement filed by the defendants. The trial Court framed the issues on 04.10.1999 and two additional issues were framed on 08.03.2001. The suit of the plaintiff was decreed on 06.11.2001 to the effect that there exist a path over Khasra No. 887 and 888 (suit land) and the defendants were restrained from obstructing and restraining the plaintiff, his family members and servants from using the said path to approach the land of plaintiff. The defendants preferred an appeal before the learned District Judge Kinnaur, Civil Division at Rampur Bushahr. The same was dismissed on 27.03.2002. Hence, this Regular Second Appeal. 5. The Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether without defining with certainty the path, by showing both the ingress and outgress of the width thereof, could the plaintiff- respondent succeed in a suit wherein he claims the acquisition of user of such path by prescription particularly when entries recorded during the settlement were deleted by a lawful order of the competent authority? Have not both the courts below relied upon the inadmissible evidence which lost its presumption or validity on account of such order? 2. Whether both the courts below have acted in a highly erroneous and perverse manner in - 4 - rejecting Exhibit DW-5/B, showing that the entries of the passage incorporated during settlement was ordered to be deleted by the competent authority, are not the judgments and decrees of both the courts below vitiated on account of ignoring the material evidence, which if accepted would have materially effected the findings returned by both the courts below? 3. Whether the Trial Court has wrongly put reliance on inadmissible evidence i.e. mark X which was not proved in accordance with law, are not the findings of the Trial Court which are affirmed by the Lower Appellate Court materially effected on account of consideration of inadmissible evidence materially prejudicing the case of the Defendant-Appellants? 6. Mr. Bhupender Gupta, learned Senior Advocate for the appellants has strenuously argued that the finding recorded by both the Courts below that there is a passage through Khasra Nos. 887 and 888, is contrary to the oral as well as documentary evidence brought on record. 7. Mr. G.D. Verma, learned Senior Advocate for the respondent has supported the judgments and decrees passed by both the Courts below. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. - 5 - 10. Plaintiff was initially granted Nautor land on 23.04.1971, measuring 6 bighas 18 biswas. Patta was also granted in favour of the plaintiff. However, before the mutation could be attested, the record relating to the allotment in favour of the plaintiff was gutted in fire in 1972 in the office of Deputy Commissioner, Shimla. Thereafter, fresh allotment order was issued in favour of plaintiff on 21.04.1995, on the basis of which, mutation was attested on 13.03.1996. The defendant No. 1 has also been allotted Nautor land on 22.12.1979. Plaintiff has examined three PWs. to establish that he had been using the ridges of Khasra Nos. 887 and 888 as a passage for the last more than 30 years. 11. Plaintiff has appeared as PW-2. According to him, he was granted patta on 23.04.1971. Thereafter, file of Nautor land case was gutted in the fire. The file was reconstructed in the year 1972-1973. According to him, the defendant No. 1 was also granted patta and mutation was sanctioned in his favour in the year 1976. He has further deposed that the land of the defendant was towards lower side of the Oddi road and towards other side, there was a gorge. He also testified that the path existed on the land of the defendants, which approaches to the villages and Kui Nallah and horticulture road and it was in existence prior to the settlement of defendant in the suit land. Earlier, nature of the land was Banjar. According to him, the Divisional Commissioner has also mentioned in the orders while granting patta to the plaintiff and defendant to keep the path open for the user of estate holders and other persons. According to him, the defendant has obstructed the path in the year 1994 by fencing and putting the - 6 - bushes. The path was again obstructed by the defendant in the year 1998. 12. PW-1 Balwant Singh, Kanungo has deposed that he remained posted as Patwari in the Settlement Department and he remained as Kanungo during the year 1992 to 1994. He prepared the record on the basis of aks musabi Ex. PW-1/A, as per the factual position on the spot. 13. PW-3 Kewal Ram has testified that the path in dispute starts from Oddi-Kotgarh road from the place known as Kui nullah and then it leads to the land of defendant and the same is 2 to 4 feet in width. He further deposed that the plaintiff was granted the land in the year 1971. According to him, earlier there was forest and people used to graze their cattle and they used the path for ingress of forest produce. According to him, the defendant has obstructed the path in 1994. 14. Defendant No. 1 has examined himself as DW-1. According to him, Khasra No. 887 & 888 carved out during the settlement, as he has obtained the land in 1972. Plaintiff has also obtained land in Nautor, which was on the upper side. He denied that the path existed on the suit land and deposed that the defendant is having his house towards the lower side of horticulture road and the plaintiff was having road from the shop of one Jai Sukh and through the house of Padam Ram and Shiv Ram and the plaintiff also approaches to his land through Ayurvedic dispensary, which was 10 to 15 mtrs. from the land of the plaintiff. He deposed that during settlement, the path was shown through his land in red ink and he has sought the correction of record and orders have been passed in his favour. He - 7 - further deposed that the plaintiff could approach to his land through the house of Kewal Ram and also by passing through Khasra No. 895. He then testified that the plaintiff was granted Nautor in the year, 1995-96. He has denied that he has obstructed the path in 1994 by fincing the area. 15. DW-2 Mohinder Kumar, Ahlmad has brought the file No. 32 of 1995, titled as Kewal Ram Kainthla versus Kewal Ram Verma. 16. DW-3 Shri Shiv Prasad has deposed that he visited the spot in case file No. 32 of 1995, which was marked to him by the Tehsildar and he visited Khasra Nos. 887, 888, 889 and recorded the statements of people. According to him, no path was found on the spot. In his cross-examination, he admitted that in his report, he has mentioned Khasra Nos. 789, 788 owned by Kewal Ram (defendant) and deposed that there exists no path from the corner of the land of defendant. He also admitted that Puran Sukh (plaintiff) was not present on the spot and he recorded the statements of Daulat Ram, Kewal Ram etc. on the spot. 17. DW-4 Shiv Ram has deposed that there is a path from the house of Jai Sukh and Padam Dass, which connects the path to Narkanda and which is 15 to 20 meters away and the other path is from the dispensary and there is no path from the land of defendant. He further deposed that Kewal Ram is also having his land near the land of defendant and he carries his crop through forest. In his cross-examination, he admitted that defendant is son-in-law of his brother. He also admitted that Nautor was granted at the same time and that people used to graze their cattle and bring fuel wood from the nautor land. - 8 - 18. Defendant has also examined DW-5 Inder Dev, Retired Naib-Tehsildar Settlement. He deposed that he remained posted as Naib-Tehsildar at Matiana and he visited the spot as the matter was pending for the correction of entries before the Settlement Officer. He made his report Ex. DW-5/A and again on 12.11.1999, he has prepared report Ex. DW-5/B. He also admitted that plaintiff was not present on the spot, as he was not served. He also admitted that earlier the path was wrongly shown in Khasra No. 888 and again stated that it was rightly shown in Khasra Nos. 888 & 887. He further testified that on latha, the path was shown in Khasra Nos. 886, 887, 888, 889, 895, 897, 893 and also admitted that Khasra No. 895 was towards gorge side and the path was not marked ahead to Khasra No. 895. 19. Defendants have placed reliance on Ex.-DA, the order passed by the Settlement Collector on 24.04.2001. The plaintiff has preferred an appeal against the order dated 24.04.2001 before the learned Divisional Commissioner. The learned Divisional Commissioner has rejected the same on 2nd July, 2002 in Revenue Appeal No. 81 of 2001. The plaintiff has preferred a Revision Petition No. 159 of 2002 before the Financial Commissioner (Appeals). The learned Financial Commissioner (Appeals) has allowed the revision petition on 10th October, 2006 and has set aside the orders passed by the Settlement Collector dated 24.04.2001 and Financial Commissioner (Appeals) dated 02.07.2002. He rendered the findings that a path “Admi-ka-Rasta” was in existence at the time when the Nautors were granted in favour of the plaintiff and the defendant. The defendants have moved an application bearing C.M.P. No. 980 of 2006 seeking - 9 - amendment in the written statement on the basis of the orders passed by the learned Financial Commissioner. The same was rejected by this Court on 07.05.2007. 20. Defendants have also filed an application bearing C.M.P. No. 531 of 2007 under Order 41 Rule 27 for placing on record copy of the order passed by the learned Financial Commissioner (Appeals) dated 10th October, 2006. What emerges from the order dated 10th October, 2006 is that the plea of the plaintiff has been accepted, resulting in the setting aside of the order passed by the Settlement Collector on 24.04.2001 and order passed by the learned Divisional Commissioner on 2nd July, 2002. Thus, in view of the observations and discussions made hereinabove, application is disposed of. 21. The defendant No. 1 has approached the Collector Settlement, Shimla on 06.06.1995 for correction of revenue entries. The learned Settlement Collector on 24.04.2001 ordered the deletion of the entry of path, which was entered with red ink in Khasra Nos. 886, 887, 893 and 895 in Muhal Kanahar. The order was up-held by the learned Commissioner (Revenue), as noticed above on 02.07.2002. The Settlement Collector had ordered the field agency to look into the matter before the deletion of the entry. DW-3 had inspected Khasra Nos. 887 and 888. He had not found any passage through ridges or otherwise through these Khasra numbers. DW-3 has not informed the plaintiff, the date of his visit. There was entry of passage through Khasra Nos. 887 and 888 through red ink to Nautor holding of the plaintiff. It was necessary for DW-3 to give notice to the plaintiff before the local inspection was carried out. DW-5 Inder Dutt in his report dated - 10 - 22.11.1999, Ex. DW-5/B has stated that no path passed through Khasra Nos. 887 and 888. It is not understandable how DW-5 has carried out the local inspection when the Civil Court was seized of the matter. He has not served any notice upon the plaintiff before carrying out the local inspection. He has recorded the statement of DW-1 and his witnesses in the absence of plaintiff. In view of this, the Settlement Collector could not rely upon the reports furnished by DW-3 and DW-5, respectively. Plaintiff ought to have been served before the inspection was carried out. Moreover, the defendant No. 1 had also not placed on record copy of application submitted by him before the Settlement Collector for corrections of the field map. It is conclusively proved that at the time of last settlement, a well definded path through red ink had been indicated from Khasra No. 449 to Khasra Nos. 890, 889, 888, 887, 886 and 882. Similarly, statement of DW-4 Shiv Ram will not advance the case of the plaintiff. He has never deposed that plaintiff had been passing through the holding of S/Sh. Jai Sukh, Padam Ram, Shiv Ram and others. The defendants have not produced any such proprietor. The field map Ex. –DB shows that the field maps through which the plaintiff was stated to be passing to reach Nautor was far away from his Nautor holding. Moreover, DW-4 was a close relative of defendant No. 1. The evidence led by the plaintiff conclusively proves that he had been using and passing through Khasra Nos. 887 and 888 and he has no other approach to reach his Nautor holding. The alternative path is arduous and at a distance. The Settlement Collector has also not given the distance of alternative path to connect the Nautor land of the plaintiff. The plaintiff had been using the path openly and - 11 - peacefully and without interruption for the last more than 25 years. The Courts below have correctly appreciated the evidence led by the parties. 22. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge April 21, 2011. (bhupender) - 12 -