IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 413 of 2000 Date of decision: 29.09.2010 Amir Datta Sain ... Appellant Versus Moti Gialchan and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Jagdish Vats and Mr. Rajiv Roy, Advocates. For the respondents: Mr. Rajnish K. Lal, Advocate. V.K. Ahuja, J. (Oral) : This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/plaintiff against the judgment and decree of the Court of learned District Judge, Kinnaur, dated 8.5.2000, vide which he affirmed the judgment and decree passed by the Court of learned Senior Sub Judge, Kinnaur at Reckong Peo, dated 7.12.1996, dismissing the suit of the plaintiff. 2. Briefly stated, the facts of the case that that the appellant hereinafter referred to as the plaintiff filed a suit for declaration and injunction as against the original respondents Chhering Lal and Moti Gialchhan, now represented by the present respondents, hereinafter referred to as defendants No. 1 and 2. The allegations made by the plaintiff were that the plaintiff’s cultivated land comprised in Khasra 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 No. 255 and it adjoins the fields of the defendants comprised in Khasra Nos. 273 and 287. It was alleged by the plaintiff that the plaintiff and his forefathers have been exercising peacefully, openly, continuously and without any interruption, their right of path from the land of defendants comprised in Khasra Nos. 273 and 287 since the time of their ancestors from point B to B for going and coming back to their fields and taking their cattle for ploughing etc. It was alleged that customary rights are there and have been recorded in Wajib-ul-Arz of Kinnaur. In April, 1991, the defendants tried to obstruct the path of the plaintiff and thereafter on 10.9.1991, a compromise was effected in between the parties vide which the plaintiff agreed to surrender the path from point B to B and instead of the said path, the defendants agreed to give permanently from point A to A, to the plaintiff as path, for going to his fields. 3. It was further alleged that a compromise was executed on the same date. It was duly signed by the parties and witnesses. The said compromise deed was retained by the defendants. Thereafter, the plaintiff had been using the path from point A to A without any interruption till 5.6.1993. The defendants have restrained the plaintiff and his family members from using the path since 5.6.1993 from point A to A, to which they have no right. Hence, the suit for declaration and permanent prohibitory injunction filed by the plaintiff. 4. The defendants took up preliminary objections in regard to maintainability and necessary parties. On merits, they denied that the plaintiff was going through the land in question. It was pleaded that the plaintiff never used to go to his land in Khasra No. 255 through Khasra No. 273. There is no path on the spot, which connects Khasra 3 No. 255 owned by the plaintiff with Khasra No. 273 of defendants. It was denied that the plaintiff had been using the path and he had got another path from point C to C through Khasra No. 233. It was also denied that there was any custom for using of the path from the adjoining fields. It was denied that any compromise deed was effected or the defendants agreed to give path to the plaintiff from A to A through Khasra No. 273. It was pleaded that this was a cooked up story in regard to path and the plaintiff has no right to use the path. 5. Issues were settled by the learned trial Court and the main issue was in regard to the question as to whether the plaintiff has right of using of path from the land of the defendants and as to whether any compromise was effected in which the defendant agreed to give path to the plaintiff. Parties led their evidence and the learned trial Court vide its impugned judgment held that the plaintiff did not place on record the copy of compromise deed dated 10.9.1991, if any. It was also held that no permission was taken by the plaintiff to prove the existence of the alleged compromise deed by leading secondary evidence and as such, the oral evidence in this regard cannot be considered. Consequently the suit of the plaintiff was dismissed by the learned trial Court. 6. On appeal by the plaintiff, the findings were affirmed by the learned District Judge. Hence, the second appeal filed by the plaintiff. 7. The appeal was admitted on five substantial questions of law as framed by the plaintiff by filing appeal. On consideration of the findings of both the Courts below, it is clear that those substantial questions of law do not arise from the pleadings of the parties. 4 8. I have heard the learned counsel for the parties and have gone through the record of the case. 9. It is clear from a perusal of the judgment of both the Courts below that the plaintiff had failed to prove that he had been using the path from point B to B from the land owned and possessed by the defendants comprised in Khasra No. 273 and 287. There were no specific allegations made in the plaint that this path was being used by the plaintiff as a right of easement for the last 2 years prior to the filing of the suit. It was also not alleged or proved that this right was being used as a right of necessity. Once the plaintiff had failed to prove that he had been using the path as a right of easement, it cannot be said that he was entitled to use the path from the land from point B to B. However, the plaintiff had made allegations in this regard that he was using the path from point B to B, but he based his claim upon the alleged compromise effected in between the parties on 10.9.1991. Some oral evidence was sought to be led by the plaintiff in this regard in regard to the compromise, but no permission was taken for leading secondary evidence to prove the compromise deed, if any. It was allegedly retained by the defendants. Therefore, until and unless the permission was taken and secondary evidence was led in regard to compromise deed dated 10.9.1991, no oral evidence led in this regard can be looked into. Both the Courts below have considered this and have concluded that the plaintiff has failed to prove the compromise deed dated 10.9.1991, if any, executed in between the parties. 10. Apart from the above, a perusal of the plaint shows that he had a right of path from point B to B through Khasra Nos. 273 and 5 287, but the copy of Tatima was not attached showing the place from point B to B starts and where it ends. Similarly, he did not file any Tatima to show that he had any right of path from point A to A and where it ends. In the absence of Tatima having been placed on record and proved according to law, it cannot be said that the plaintiff has any right to use the path in question. Therefore, the plaintiff was not entitled to the relief claimed by him. 11. No case is made out for reappraisal of the evidence led by the parties in this regard, which have been duly appreciated by the Courts below. The learned District Judge had also made a detailed reference to the evidence led in this regard. During the course of arguments, a submission was also made that the plaintiff has not been able to prove the prove the statement of one Chander Kirti recorded in a criminal case to prove the factum of compromise. No application has been filed by the plaintiff to examine Chander Kirti and the record of the case shows that sufficient time was given to the plaintiff to examine his witnesses. There is nothing on record to show that the plaintiff sought an opportunity to examine the said witness, which was denied by the Court below. Even if the statement of the said witness was proved in a criminal case, it would not have proved the terms of the compromise deed executed, if any, in between the parties. Admission was made by a witness and not by the defendants and, therefore, it would not have further substantiated the case of the plaintiff in any manner. It was observed by the learned First Appellate Court that the oral evidence of the plaintiff that he had been given right of passage through the land from A to A as per the field map placed on record was thoroughly vague and indefinite. Therefore, it 6 was observed that the oral evidence was rightly rejected by the learned trial Court. It has also come on record that the plaintiff had been using another path and as such, the plaintiff had failed to prove his case and accordingly, the suit was rightly dismissed by the learned trial Court and these findings were affirmed by the learned First Appellate Court. 12. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. However, the parties are left to bear their own costs. ( V.K. Ahuja ), September 29, 2010 Judge (BSS)