IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.623 of 2000 Date of decision : 13.5.2010 ____________________________________________________ Ram Krishan and another Appellants. Versus Tirath Ram and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the appellants : Mr. Tek Chand Sharma, Advocate. For the Respondents : Mr. Rajnish K. Lall, vice Mr. K.D. Sood, Advocate, for respondent No.1. None for other respondents. Kuldip Singh, J ( Oral) This appeal has been directed against judgment, decree dated 8.9.2000 passed by learned District Judge, Kullu in Civil Appeal No.22/2000, affirming judgment, decree dated 17.1`2.1999 passed by learned Senior Sub Judge, Lahul & Spiti exercising powers of Sub Judge Ist class, Kullu. 2. The brief facts of the case are that Tirath Ram respondent No.1 had filed a suit for permanent prohibitory injunction against Tule Ram predecessor-in-interest of appellants and five others. The further case of respondent No.1 is that he is owner in possession of land measuring 1-9-0 bighas comprised in khasra No.254, khata _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 No.1111 min khatauni No.563 min, situated in Phatti Hallan, Kothi Nagar, Tehsil and Distt Kullu vide jamabandi 1989-90. The predecessor-in-interest of appellants and respondents No.2 to 6 were owners in possession of land measuring 0-7-0 bigha comprised in khasra No.251 and land measuring 0-16-0 bigha comprised in khasra No.375 Khata/khatauni No.496/953 min, situated in Phatti Hallan, Kothi Nagar, Tehsil and Distt Kullu vide jamabandi 1989-1990. In between the aforesaid two khasra numbers there is a public path over land comprised in khasra No.370 measuring 1-6-0 bigha. The respondent No.1, other land owners and right holders have been using the disputed path peacefully, openly and continuously without any interruption for the last more then 100 years. 3. The predecessor-in-interest of appellants, respondents No.2 to 6 have no right to obstruct the said public path but they are trying to obstruct the path by encroaching a portion of aforesaid path. They were asked several times not to obstruct the path but to no avail. In these circumstances, the suit for permanent prohibitory injunction was filed with a prayer that appellants and respondents No.2 to 6 may be restrained from encroaching upon any portion of path situate on khasra No.370 or raising construction thereon in any manner. A prayer has also been made that appellants and respondents No.2 to 6 may be restrained from diverting the aforesaid path through the eastern boundary of land comprised in khasra No.254 and they may also be restrained from interfering in the ownership and possession over that land. 3 4. The suit was contested by predecessor of appellants and respondents No.2 to 6, they have filed common written statement. In the written statement, preliminary objections of limitation, estoppel, necessary parties namely State of H.P. and Gram Panchayat, Hallan-1( for short Gram Panchayat) were taken. On merits, it was denied that in between khasra Nos.251,375 there is any path over khasra No.370. The entries showing path over khasra No.370 are wrong. The predecessor-in-interest of appellants and respondents No.2 to 6 took the plea that they are owners in possession of land comprised in khasra No.370. The respondent No.1 has no right, title or interest over khasra No.370. The user of path over land comprised in khasra No.370 by respondent No.1, land owners and right holders was also denied. 5. It has been pleaded that about 45 years ago, the forefathers of appellants and respondents No.2 to 6 had purchased land comprised in khasra Nos.251, 375 and since then the land comprised in khasra No.370 is situated in between khasra Nos.251 and 375. The forefathers of appellants and respondents No.2 to 6 with the consent of Gram Panchayat in January, 1955 provided alternative path through the left side of the boundaries of khasra Nos.251 and 375 and since then no path is existing over khasra No.370. The plea of adverse possession was also taken over khasra No.370. It has been submitted that Gram Panchyat, was earlier owner of khasra No.370 and the Gram Panchayat had passed resolution No.23 dated 25.7.1971 and khasra No.370 was given in exchange in favour of Bala Ram predecessor of appellants in lieu of the portion of 4 land contained in khasra No.251. The claim of respondent No.1 was denied. 6. The respondent No.1 filed replication and reasserted his case as pleaded in the plaint and denied the case set up by predecessor-in- interest of appellants and respondents No.2 to 6 in the written statement.. On the pleadings of the parties the following issues were framed on 28.11.96 and 28.5.98:- 1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed? …OPP 2. Whether the suit of the plaintiff is not within limitation ?OPP 3. Whether the plaintiff is estopped by his act and conduct from filing the present suit? …OPD 3(a). Whether the suit is bad for non-joinder of necessary parties? .. OPD 3(b). Whether khasra No.370 owned by G.P. Hallan-I was exchanged with the land comprised in khasra No.251 owned by defendants as alleged? If so, its effect? ….OPD 4. Relief. The issue No.1 was answered in affirmative whereas issues No.2,3(a) and 3(b) were answered in negative and the suit was decreed by learned Senior Sub Judge on 17.12.1999. In appeal learned District Judge on 8.9.2000 affirmed the judgment, decree dated 17.12.1999. The appellants have come in second appeal against judgment, decree dated 8.9.2000 which has been admitted on following substantial questions of law:- 5 1. Whether the suit of plaintiff-respondent Tirath Ram was maintainable in the present form without seeking the declaration for easementary rights of passage over the suit land and the findings to the contrary recorded by the courts below are wrong? 2. Whether the suit of the plaintiff was not maintainable as the same was barred by Section 91 of the code of Civil Procedure, if so its effect? 3. Whether the courts below have mis- read and mis-interpreted the evidence including document Ext.DW-3/A, compromise deed Ext.DW-3/B, agreement Ext.D-1 as well as the copy of the resolution? 7. I have heard Mr. Tek Chand Sharma, learned counsel for the appellants and Mr. Rajnish K. Lall, learned counsel appearing for respondent No.1 and have also gone through the record. The learned counsel for the appellants has submitted that the two Courts below have not appreciated legal position with respect to the fact that suit filed by respondent No.1 was not maintainable without seeking declaration of easementary rights over passage involved in the suit. The suit for injunction simplicitor is not maintainable. He has submitted that in the plaint the respondent No.1 has pleaded rights of land owners and others over khasra No.370, therefore, without complying Section 91 CPC the suit is not maintainable. The two Courts below have misconstrued Ex.D-1, Ex.DW-3/A, Ex.DW-3/B. The findings recorded by two Courts below regarding rights of respondent No.1 over khasra No.370 being a public path are wrong and not 6 sustainable. The learned counsel for respondent No.1 has supported the impugned judgment, decree and submitted that the two Courts below have concurrently held right of respondent No.1 over khasra No.370. He has submitted that no question of law much less substantial question of law is involved in the appeal and the impugned judgment, decree require no interference. Substantial question of law No.1 . 8. This substantial question of law is with respect to maintainability of the suit as the respondent No.1 has not prayed declaration of easementary rights over passage and in absence of such declaration simple suit for injunction is not maintainable. The case of the respondent No.1 is that there is a public path over khasra No.370 and he is also a beneficiary of such path. The allegations in the plaint are that the predecessor-in-interest of appellants and respondents No.2 to 6 threatened to cause interference on khasra No.370 either by encroaching the path or raising construction thereon. In these circumstances, the respondent No.1 had filed suit for permanent prohibitory injunction restraining the predecessor-in-interest of appellants and respondents No.2 to 6 not to cause any interference over khasra No.370 or raise any construction on any part of khasra No.370. The claim of the respondent No.1 that there is a path over khasra No.370 is supported by Ex.P-1 ( Ex.D-5) jamabandi for the year 1989-90 wherein khasra No.370 has been shown owned by Gram Panchayat and in possession of Makbuja Bartan Bartandaran and a path has been shown over khasra No.370. The presumption of truth is attached to entries in jamabandi. Therefore, respondent No.1 was not 7 required seek declaration of his right over passage situate on khasra No.370 but what was required from him was to establish his right over passage situate on khasra No.370. The respondent No.1 has established existence of public passage over khasra No.370. In these circumstances, it was not necessary for him to seek declaration that there is a passage over khasra No.370. The substantial question of law No.1 is decided against the appellants. Substantial question of law No.2 . 9. The substantial question of law is regarding maintainability of suit in view of Section 91 CPC. The contention of learned counsel for appellants is that suit is barred under Section 91 CPC. The bare perusal of Section 91 indicates that for public nuisance a suit for declaration can be instituted (a) by the Advocate General (b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act. The sub section (2) of Section 91 provides that nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions. The respondent No.1 had filed suit in his own right with the plea that he has right over the passage over khasra No.370. It is a different matter that he has also stated that in addition to respondent No.1 other persons have also right of passage over khasra No.370. In the facts and circumstances of the case since the respondent No.1 has filed the suit for his own benefit, therefore, the suit is not hit by Section 91 CPC. The substantial question of law No.2 is decided against the appellants. 8 Substantial question of law No.3 . 10. The learned counsel for the appellants has submitted that the two Courts below have misread, misinterpreted the resolution Ex.D-1, compromise Ex.DW-3/A, agreement Ex.DW-3/B. In the written statement the plea of predecessor-in-interest of appellants and respondents No.2 to 6 is that their forefathers with the consent of Gram Panchayat since January, 1955 are using the land comprised in khasra No.370. It has also been pleaded in the written statement that Gram Panchayat earlier owner of khasra No.370 had passed resolution No.23 on 25.7.1971 whereby the land comprised in khasra No.370 was given in exchange in favour of Bala Ram predecessor-in-interest of appellants in lieu of portion of land of khasra No.251. The Panchayat speaks through the record, in case land comprised in khasra No.370 was given to predecessor-in-interest of appellants and respondents No.2 to 6 in January, 1955 by the Panchayat then there should be some document in support of this plea but nothing has been placed on record to show that Gram Panchayat in January, 1955 had given land comprised in khasra No.370 to the predecessor-in-interest of appellants and respondents No.2 to 6. 11. The appellants for exchange of khasra No.370 with khasra No.251 are relying on resolution No.23 dated on 25.7.1971 Ex.D-1. It has not been denied by learned counsel for the appellants that Hindi translation of resolution No.23 is also at page 48 of the trial Court file. The perusal of Hindi translation of resolution No.23 indicates that there is no reference of any exchange of khasra No.370 with khasra No.251. The resolution No.23 only indicates that there is some public path. 9 The resolution No.23 nowhere establishes the case of the appellants that the khasra No.370 was exchanged with land comprised in khasra No.251. In these circumstances, the plea of appellants of exchange has not been proved. 12. The compromise Ex.DW-3/A is in between respondent No.1 Tirath Ram and Vijay Kumar son of Dola Ram respondent No.4. The perusal of compromise Ex.DW-3/A does not show that the compromise was entered into between respondent No.1 and Vijay Kumar at the instance of respondent No.4 nor it emerges from Ex.PW-3/A that Vijay Kumar acted as Power of Attorney Holder of respondent No.4. In other words Ex.DW-3/A is in between respondent No.1 and Vijay Kumar who is not a party in the suit. Therefore, the appellants cannot take benefit of compromise Ex.DW-3/A. Similar is the position of agreement Ex.DW-3/B which has reiterated the compromise Ex.DW-3/A. The documents Ex.D-1, Ex.DW-3/A and Ex.DW- 3/B do not establish the case of the appellants. On the contrary in Ex.P-1 (Ex.D-5) jamabandi 1989-90 public path is recorded over khasra No.370 which is owned by the Gram Panchayat, Hallan-I. The two Courts below have rightly appreciated the material on record. The learned counsel for the appellants has failed to point out any perversity in the judgment, decree. The substantial question of law No.3 is decided against the appellants. 13. No other point was urged. 14. The result of the above discussion, appeal fails and is accordingly dismissed. CMP Nos.939 of 2003 and CMP Nos.948 and 949 of 2004 15. CMP No.939 of 2003 is an application filed by respondent No.1 alleging therein that on 8.5.2001 in CMP No.303 of 2001 the appellants were restrained from raising any construction over the land comprised in Khasra No.370, measuring 1-6 bighas. On 5.7.2001 the order dated 8.5.2001 was 10 made absolute during the pendency of the appeal. In first week of November, 2003, the appellants started construction on khasra No.370. The unauthorized act of appellants was brought to the notice of SHO. Patlikul, vide notice dated 8.11.2003. The respondent No.1 has placed on record photograph Annexure A-4 showing alleged construction raised by the appellants on the disputed land. 16. The appellants had filed reply and have denied the allegations that new construction has been raised on khasra No.370. The reply is supported by an affidavit. The respondent No.1 has filed rejoinder. The respondent No.1 has also placed on record photographs by filing CMP Nos.948 and 949 of 2004. The replies to CMP Nos.948 and 949 of 2004 have also been filed. The photographs placed on record do not prove that the construction shown in photographs was raised after the passing of the interim order. The appellants have denied the allegations of violation of interim order. The allegations made in the application supported by affidavit by respondent No.1 have been denied by appellants on affidavit. There is no material on record which conclusively proves that the appellants had raised construction over khasra No.370 after passing of the interim order. Resultantly, application being CMP Nos.939 of 2003 is dismissed. CMP No.948 of 2004 and CMP No.949 of 2004 are rendered infructuous in view of disposal of CMP No.939 of 2003. May 13, 2010 (Kuldip Singh), (sks) Judge.