HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 36 of 2010 Kripal Singh …Appellant Versus Kailash Chandra Pandey …Respondent. Mr. Birendra S. Adhikari, Advocate for the appellant. Mr. Sudhir Singh, Advocate for respondent. Dated: August 05 , 2011: Hon’ble V.K. Bist, J. This second appeal, under Section 100/103 of the Code of Civil Procedure, 1908, has been preferred against the judgment and decree dated 30th November, 2009 passed by District Judge, Almora in Civil Appeal No. 10 of 2008 as well as the judgment and decree dated 14th December, 2007 passed by Civil Judge (Jr. Div.), Almora in Civil Suit No. 25 of 2003. 2. Precisely, facts of the case are that plaintiff/ respondent (Kailash Chandra Pandey) instituted Civil Suit No. 25 of 2003 before Civil Judge (Jr. Div.) Almora seeking permanent and mandatory injunction against the defendant/appellant (Kripal Singh) restraining him from interfering in the road over the Khata no. 835, village- Pandeykhola, District-Almora and also for direction to defendant/appellant to remove the construction shown in the map annexed with the plaint. It was asserted in the plaint that plaintiff is co-owner of land measuring 13 Mutthi pertaining to Khatauni Khata no. 65-K.Pai. Khet no.837 at village Pandeykhola, Patti Khasparja, Tehsil and District Almora through registered deed. He constructed a 2 residential house on the said land. Tenure holder of the land, namely, Mohan Chandra Tewari executed a registered Badalnama (exchange deed) with the defendant/appellant on 20.09.2000 for approaching the land and houses of co-tenure holders at the site of their land/houses. By way of said Badalnama, defendant/ appellant was given half Mutthi land from Khet No. 838 and in execution of said exchange deed, the defendant left half Mutthi land in Khet no. 835 for public path in between his house and house of Gokul Singh. One of the conditions in the exchange deed was that the defendant/ appellant shall not create any hindrance on the pathway or encroach upon it by making any construction and shall keep open the public path so that co-tenure holders may avail their right to easement. It is stated in the plaint that plaintiff/respondent, defendant/appellant and Gokul Singh were using the said path. It has been alleged in the plaint that the defendant/appellant has encroached upon the said path by constructing a lintel of size 2’ in width and 12’ in length and has constructed a toilet under the said lintel. The defendant/appellant contested the suit by filing his written statement. Rescinding the assertion made in the plaint, the defendant/appellant, in his written statement, has stated that he purchased 4 Mutthi land in Khatauni Khata no. 65 K.Pai no. 835 and 7¼ Mutthi land in Khata no. 837 totaling 11¼ Mutthi land in the year 1999 at village-Pandeykhola, Patti Khasparja, Tehsil and District Almora in which he constructed a residential house in the year 1999-2000 and laid lintel over one storey and built lintel/projection and at that very time he constructed toilet and soak pit and also a path. On the basis of the pleadings, the trial Court framed four issues. The parties adduced their oral and documentary evidence 3 before the trial Court. After hearing learned counsel for the parties the trial Court vide impugned judgment and order dated 14th December, 2007 partly allowed the suit of the plaintiff whereby the defendant was restrained by way of a decree of permanent and mandatory injunction from interfering in the pathway over Khata no. 65, Khet no. 835, village Pandeykhola, District-Almora. The defendant was further directed to remove the lintel measuring 2 x 12 feet over the road. Being aggrieved with the judgment and order of trial Court, the defendant preferred Civil Appeal no. 10 of 2008 and the 1st Appellate Court vide judgment and order dated 30th November, 2009 dismissed his appeal. 3. I have heard Mr. B.S. Adhikarh, Advocate for the appellant and Mr. Sudhir Singh, Advocate for the respondent and perused the judgment and order passed by the Courts below. 4. Learned counsel for the defendant/appellant has submitted that the appellant had purchased 4 Mutthi land pertaining to Khatauni Khata no. 65 K.Pai no. 835 and 7 Mutthi land relating to Khata no. 837 totaling 11 Mutthi land in the year 1999 at village-Pandeykhola, Patti Khasparja, Tehsil and District Almora in which he constructed a residential house and laid lintel over one storey and at that very time, he constructed toilet and soak pit as also a path. Since, in the month of September, 2003 the appellant constructed double storeyed house over previous structure, the respondent had no cause of action, de novo, after three years. He submitted that it is clearly mentioned in the exchange deed that construction made below the path shall be retained. He submitted that 4 all the constructions are legally done by the defendant on his own land, to which the plaintiff has no concern. It is further argued that before execution of exchange deed, a lintel projection measuring 19’x3” in length and 2.30’ in width was in existence at the site which was erected on the cement columns. The said lintel projection cannot be said to be erected on the pathway nor it can be said to be a construction hindering the pathway, as the said construction is not creating any obstacle to its user. In so far the plea raised by the learned counsel for the plaintiff/respondent that burden of proof cannot be shifted upon the plaintiff/respondent, the learned counsel for the defendant/appellant entrusted reliance on the judgment of Hon’ble Supreme Court, rendered in Neelakantan & Ors. vs. Mallika Begum, reported in 2002 (1) Supreme 369 whereby it was held that onus is upon the plaintiff/tenant to prove that property in question which was subject matter in that case. He relied upon part of paragraph-8 of the judgment, which is being reproduced here: “…it is well settled that the High Court while considering the matter in exercise of its jurisdiction in Second Appeal or Civil Revision, would not reverse the findings of fact as recorded by the Courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High court to set-aside such a finding and to take a different view”. 5. On the other hand, learned counsel for the plaintiff/respondent has submitted that as per the 5 exchange deed (Badalnama) the appellant was required not to create any hindrance on the pathway and not to raise any construction over the same in future. The said path was to be kept open for the co-tenure holders with all easementary rights and the construction made below the pathway had to be maintained. Learned counsel for the respondent has argued that both the Courts below have given concurrent findings, which does not warrant any interference. He argued that the plaintiff/respondent has proved his case and in the facts and circumstances of the case, finding recorded by the learned Courts below cannot be disturbed. 6. I have carefully gone through the judgment passed by the Courts below. The dispute in between the parties, more or less, based on the conditions of the exchange deed (Badalnama) dated 20.09.2000. The trial Court while dealing with issue no.1, which was to the effect that whether in the registered Badalnama, ½ Mutthi of land, pertaining to Khet No. 835 was left out throughout its extreme end for public path. According to the trial Court, the appellant/defendant in his cross- examination accepts execution of the exchange deed dated 20.09.2000 executed in between him and Mohan Chandra Tewari. According to the exchange deed, the appellant shall leave out the ½ Mutthi land from the motor road to the extreme end of Pai. Khet No. 835 for public path and shall not create any hindrance on the said pathway. The said issue was answered positively in favour of the plaintiff and against the defendant. 7. While dealing with issue no. 2 which was to the effect that whether the defendant, while encroaching 6 upon the pathway in Pai. Khet No. 835, has laid a lintel of 2’ x 12’ and has illegally set toilet there. The trial Court found that although, the appellant in his written statement has stated that the construction in question was done much earlier to the exchange deed, but the commission report exhibits that after extension of lintel/projection, lintel had been laid over it which was un-plastered at the time when commission had taken place. The defendant has conceded that 2’ x 12’ lintel is towards the outer side which is above to the pathway. He further stated that construction of two storeyed house was of the year 2003. The trial Court was of the view that had the construction in dispute been in existence at the time of execution of exchange deed, there would have been such description in it. Execution of exchange deed is not disputed by the appellant, in which it was mentioned that the appellant shall not create any hindrance on the pathway or encroach upon it by making any construction and shall keep open the public path so that co-tenure holders may avail their right of easement, but construction made below the path, shall be retained. There appears no mention about the construction made to the upper side of the pathway, rather it bears the construction made below the pathway. The defendant could not establish that the construction in question was prior to the execution of exchange deed, thus the defendant failed to prove its case. Holding this, the trial Court partly decided issue no.2 in favour of plaintiff and against the defendant. The 1st appellate Court has also found that the land in dispute was for public path and if any public path is made for co-tenure holders, they are equally using it as their rights and they have easementary rights over it, without prior permission of co-tenure 7 holders or such users, no lintel/projection could be constructed from earth to sky. I do not find any perversity in the finding recorded by the Courts below. 8. While propounding absolute honour to the Neelakantan’s case (Supra) this Court is of the view that finding of Courts below is recorded, based upon the material evidence available on the record and no stone is left unturned, as such, appellant does not get any help from that case. There appears no misreading of evidence nor it suffers from any legal infirmity, which materially prejudices the case of one of the parties. The arguments advanced by the learned counsel for the appellant are not convincing. Both the Courts below have given concurrent findings and no question is left to be answered. Findings recorded by the Courts below are finding of fact and no substantial question of law arises to be determined or answered in this Second Appeal. The appeal fails and is dismissed. No order as to costs. 9. Pending application (no. 6074 of 2010) also stands disposed of. (V.K. Bist, J.) 05.08.2011 NCM: