IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 428/2010 Reserved on: 20.12.2011 Decided on:27.12.2011 ___________________________________________________ Ravinder Kumar son of Sh. Banka resident of Mataur, Tehsil and District Kangra, H.P. …Appellant. Versus Avtar Singh son of Sh. Gujjar alias Shri Ram son of Nihala, resident of Mataur, Tehsil and District Kangra, H.P. …Respondent. Regular Second Appeal under section 100 of the Code of Civil Procedure. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Vikas Bhardwaj, Advocate. For the Respondent : Mr. Tarlok Chauhan, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 9.11.2009 rendered by the learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No.81/K/XIII/07. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for permanent prohibitory injunction against the appellant-defendant (hereinafter referred to as “defendant’ for convenience sake). According to the plaintiff, the land comprised in Khata No. 18 min, Khatauni Nos. 19 min, 20 min, 21 min, Khasra Nos. 637, 639, 641, 650, 633, 635 and 634 measuring 0-13-23 hectares is jointly owned by the parties as co-sharers. However, the possession of the parties is recorded separately and as such plaintiff and his brother are in exclusive possession of Khasra No. 638 and father of the defendant is shown in possession of Khasra No. 635 measuring 0-02-68 hectares. According to the plaintiff, khasra No. 638 falls behind khasra No. 635 of the defendant and there is a path in khasa No. 635 through Khasra No. 637 to khasra No. 638. The defendant has put a gate on the vacant portion thereby blocking the path situated in khasra No. 635. Plaintiff has no other approach to the land except this path for agriculture and other purposes. The plaintiff had reported the matter to the Gram Panchayat and Gram Panchayat visited the spot and directed the defendant not to block the path but to no avail. It is in these circumstances, the suit has been filed by the plaintiff. 3. The suit was contested by the defendant. The defendant has admitted the revenue entries to be correct. However, he has denied that there is a path in khasra No. 635 leading to khasra Nos. 637 and 638. It is alleged that the 3 defendant and his brother Ajeet Kumar have raised construction over khasra No. 635 prior to filing of suit within the knowledge of plaintiff. The plaintiff had not objected to the same. 4. Replication was filed by the plaintiff. Issues were framed by the Civil Judge (Junior Division)-II, Kangra on 6.1.2004. He dismissed the suit on 23.6.2007. Plaintiff preferred an appeal before the Additional District Judge-II, Kangra at Dharamshala. He allowed the same on 9.11.2009. Hence, the present Regular Second Appeal by the defendant against the judgment and decree dated 9.11.2009. It was admitted on the following substantial question of law: “Whether the learned first appellate court was justified in holding that the plaintiff was entitled for the relief of injunction, despite the fact that the particulars of the alleged passage had neither been pleaded nor proved by the plaintiff?” 5. Mr. Vikas Bhardwaj has vehemently argued that the first appellate court has misread and misconstrued the oral as well as documentary evidence. According to him, there is no path existing as claimed by the plaintiff. He has supported the judgment and decree passed by the Civil Judge (Junior Division). 6. Mr. Tarlok Chauhan has supported the judgment and decree passed by the first appellate court. 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 4 8. The core issue involved in this Regular Second Appeal is : whether the plaintiff has right to passage through khasra No. 635 to his land situated in khasra No. 638. According to the plaintiff, the suit land, i.e. khasra No. 635 is in possession of the defendant but there is a path on this khasra number and the path leads to his land comprised in Khasra No. 638 through khasra No.637 and the defendant has no right to block the path. According to him, 3-4 shops were constructed by the defendant and 3-4 feet wide passage exists on the spot. According to him, the path was blocked by the defendant in the month of July, 2002 by raising a gate. PW-2 Bhagat Ram has supported the version of the plaintiff. According to him, there is a path and the same has been closed by the defendant from 2001-2002. The width of the path has also been reduced to 2 feet only. 9. DW-1 Ravinder Kumar has admitted that the path is situated in between his and Milkhi Ram shops. DW-2 Ashwani Kumar has also admitted that the land of the plaintiff is situated behind the shops of the defendant and the passage. DW-1 and DW-2 have deposed that the shops were constructed in the year 1994-95. DW-2 has not visited the spot after 1996. The defendant has put a suggestion to PW-1 that those shops were constructed 5-6 years back thereby in the year 1999- 2000. Thus, he has contradicted his own claim that the shops were constructed in the years 1994-95. Thus, it was amply proved by the plaintiff that the construction is not raised in the 5 years 1994-95, but about 5-6 years back. The plaintiff has also proved that there existed a path to reach khasra No. 638. Khasra No. 638 is situated behind khasra No. 637. The defendant has raised construction over Khasra No. 635. The defendant has not led any tangible evidence on record that the plaintiff has any other alternative path other than the passage, which passes through khasra No. 635 to reach khasra No. 638. The first appellate court has correctly appreciated the oral as well as documentary evidence led by the parties. 10. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the present Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 27.12. 2011 *awasthi*