IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.459 of 2000 along with Cross Objection N0.573 of 2000. Date of Decision: 23.11.2010. Chuhra ..Appellant Versus Madam Lal and others ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr. Rakesh Jaswal, Advocate. For the Respondent(s): Mr.Ramakant Sharma, Advocate. Deepak Gupta, J. (oral). 1. This Regular Second Appeal by the plaintiff and cross objections by the defendants are directed against the judgment and decree dated 20.11.1999 delivered by learned Additional District Judge, Solan in Civil Appeal No.144-NL/13 of 1990 whereby he allowed the appeal of the defendants and set-aside the judgment and decree passed by the learned Sub Judge, Ist Class, Nalagarh dated 31.10.1990 in Civil Suit No.186/1 of 1987, decreeing the suit of the plaintiff. - 2 - 2. Briefly stated, the facts of the case are that the plaintiff filed a suit praying that a decree for permanent injunction be passed restraining the defendants from in any manner interfering in the land measuring 11 bighas 13 biswas comprised in khasra Nos.273 and 314 situated in the area of Village Kunjahal, Pargana Dharampur, Tehsil Nalagarh, District Solan, H.P. 3. The plaintiff alleged that he along with his brother were co-owners of the suit land but the defendants were trying to interfere in their possession. The stand of the defendants was that this land was earlier part of khasra No.267/1 which in consolidation proceedings had been given various khasra numbers but according to the defendants the suit land was part of khasra No.267. According to the defendants there existed a path from khasra No.317 which was 35 ft. wide and led to the abadi of the defendants in khasra No.279. The basic dispute between the parties was whether a path existed on the spot or not because the defendants otherwise do not - 3 - deny the ownership of the plaintiff over the suit land. 4. The learned trial Court decreed the suit holding that the defendants had failed to prove that a path existed on the spot. The learned trial Court came to the conclusion that the defendants have proved that earlier path did exist on khasra No.267 but according to the learned trial Court after partition proceedings which took place in the year 1962-63 no path was reflected in the revenue record and hence there was no evidence to show that a path existed on the spot. Aggrieved by this judgment, the defendants filed an appeal which was earlier compromised. However, the compromise was set-aside by this Court and the matter remanded to the learned lower appellate Court for decision on merits and the learned lower Appellate Court has allowed the appeal and came to the conclusion that a path measuring two biswas shown as khasra No.314/1 in document Ext.DW-5/A exists on the spot. 5. The present appeal was admitted on the following questions of law: - 4 - “1. What is the effect of non-appearance of a party in the witness box to depose in support of his case and offer himself for cross-examination. Can the special attorney be termed as examination of the party? 2. Can a decree with regard to path be granted in the absence of the clear pleadings with regard to the width, ingress and outgress of the path?” 6. Before dealing with the appeal itself, I feel that it would be appropriate to comment on the manner in which the learned lower appellate Court has decided the matter. After giving the facts and noting the narration of the witnesses it has only enumerated and listed the documents which have been proved on record and on the basis of the document it has come to the conclusion that certain facts have been proved on record. A first Appellate Court is the last Court of facts and must discuss the evidence in a proper manner. This unfortunately has not been done in the present case. Merely, noting the deposition is not sufficient. The evidence has to be analysed and after analysis a reasoned decision given. The decision of the Court below, to say the least, is devoid of any reasoning. Therefore, I have - 5 - embarked upon an exercise to look into the evidence of the case in detail. 7. The defendants to prove their case that a path existed on the spot relied upon various documents but, according to me the two most important documents are the jamabandis for the year 1926- 27 and 1945-46. Ext.D-5 is the Jamabandi for the year 1926-27 translation of which is Ext.D-6. This jamabandi shows khasra No.267 measured 10-14 bighas in all. Out of this land, 10 bighas was cultivable Barani land and 14 biswas was shown as gair mumkin rasta. Ext.D-7 is the jamabandi for the year 1945-46 and Ext.D-8 is its translation. In this jamabandi khasra No.267 has been bifurcated into various khasra numbers and 14 biswas is again shown as gair mumkin rasta. Another important document is Ext.D-3 translation of which is Ext.D-4. This is a copy of mutation No.97 which also shows that out of khasra No.267, 9-10 bighas was Barani land and 14 biswas was gair mumkin rasta. This mutation relates to the year 1953-54. Thus, there is material on record to show that a path which was 14 biswas in area - 6 - went through khasra No.267. During consolidation proceedings khasra No.267 was allocated various other khasra numbers. These are khasra Nos.314, 315, 311, 313, 309 and 308. It is obvious that the path could exist in these khasra numbers alone. Now there is no path in any of these khasra numbers. How the consolidation authorities removed the path from the record has not been explained by either side. 8. No doubt right from the year 1962-63 the path is not reflected in the revenue record and thus the plaintiff alleges that no path exists on the spot. The question which arises is can a path which is occupying an area of 14 biswas vanish into thin air. The stand of defendant No.1 is that there was a road which was almost 30-75 ft. wide and went through these khasra numbers and this road was used by bullock-carts, camels etc. but over a period of time the road was used less and width had come down to 10 ft. The path which has been granted to the defendants is not even 10 ft. wide. - 7 - 9. DW-5 Amin Chand, Patwari visited the spot at the asking of the defendant. Though he states that he went on the direction/orders of the Sub Divisional Magistrate, there is no material on record to prove this fact. However, the fact is that he has prepared a tatima on the spot which is Ext.DW-5/A. As per this tatima a path existed on the spot which is depicted by khasra Nos.314/1, 315/1, 317/2 etc. 10. It has been urged on behalf of the plaintiff that this tatima is not the worth paper it is written on because there is no material to show that any report regarding the tatima has been made in the revenue record. It is further alleged that there is nothing on record to show that on what basis this tatima was prepared. Assuming for the sake of arguments that this tatima was prepared by the Patwari at the asking of the defendants, the fact is that this Patwari was produced in the witness box to prove the tatima and he has been cross examined at length. He in cross examination, stated that an old path existed on the spot which path he has shown in the tatima. This statement - 8 - of the Patwari is corroborated by earlier revenue record. It appears that this path which may have been much broader but due to construction of roads was less used and therefore it had narrowed over a period of time. Now the path which has been granted measured only two biswas. 11. In view of the earlier revenue record, the statement of the Patwari and the other oral evidence, I am of the considered view that the ultimate finding reached by the lower appellate Court was right even though he did not spell out any reasoning in his judgment. Both the questions of law framed do not arise. 12. It is however not disputed that though a path exists on khasra Nos.314 and both khasra Nos. 314 and 273 are owned by the plaintiff. Therefore, a decree in respect of this land other than the path depicted by khasra No.314/1 has to be passed in favour of the plaintiff. As such, the appeal is partly allowed and it is held that the plaintiff is the owner of khasra No.273 as well as entire khasra No.314 i.e. Khasra No. 314/1 and Khasra No. 314/2 - 9 - in village Kunjahal, Pargana Dharampur, Tehsil Nalagarh, District Solan. However, it is further declared that a path measuring two biswas exists on khasra No.314 which is depicted as khasra No.314/1 in Ext.DW-5/A and the defendants have a right to use this path and the plaintiffs are restrained from in any manner obstructing the defendants from using the said path. The defendants are in turn restrained from in any manner interfering in the remaining suit land. 13. Both the appeal and cross objections are disposed of in the aforesaid terms. No order as to costs. Decree sheet be drawn up accordingly. November 23, 2010. ( Deepak Gupta ), J. PV