IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Second Appeal No. 93 of 2002 Satish and 2 others … Appellants. Versus Baru Singh and 4 others … Respondents. Mr. B.D. Upadhyaya, and Mr. M.S. Tyagi, learned counsel for the appellants. Mr. Siddhartha Sah, learned counsel for the respondents. Dated: July 22, 2008 Hon’ble B.C. Kandpal, J. This is second appeal of the defendants, under Section 100 of the C.P.C., filed against the judgment and decree dated 28-8-2002, passed by Additional District Judge/ First F.T.C. Haridwar, in Civil Appeal No. 9 of 2000, dismissing the appeal and confirming the judgment and decree dated 13-3-2000 passed by Civil Judge (Junior Division) Haridwar, in Civil Suit No. 250 of 1994. 2- Brief facts of the case, in nutshell, are that plaintiffs/respondents, Baru Singh and others filed a suit against the defendants/appellants for permanent injunction with the allegations that they are old inhabitants of village Kunwakheda. The house of the plaintiff Baru Singh is shown by letters F,G,B,E, in the sketch map attached with the plaint; the house of plaintiff Mahendra Singh is adjacent to pathway shown with letters A,B,C,D, towards east side; the house of plaintiff Bugli is towards west of the said pathway adjacent to the house of plaintiff Baru Singh and the houses of plaintiffs Rahtu and Ram Pal are adjacent to said pathway in northern side. According to the plaintiffs they are owner in possession of their above houses prior 2 to coming in force of U.P. Z.A. & L.R. Act and the only pathway A,B,C,D, is there to reach to their houses. This pathway is used by the villagers from the time of coming into existence of the village. The defendants threatened the plaintiffs to raise construction over the said village pathway A,B,C,D, therefore, the plaintiffs filed suit for permanent injunction. 3- The defendants/appellants contested the suit by filing their joint written statement before the Civil Judge (J.D.), denying the allegations made in the plaint. According to them, the plaintiffs never used the disputed land as pathway. The land is their Sahan land and they are using the said land prior to enforcement of U.P. Z.A. & L.R. Act and the said land has been settled U/S 9 of Z.A. & L.R. Act among the ancestors of the defendants/appellants and the plaintiffs/ respondents have no concern with the said land. 4- The trial Court on the pleadings of parties, framed the following issues in the suit:- (i) Whether the disputed land A,B,C,D, is the land of village path and the plaintiffs and other village people have been using the said land as their pathway?. (ii) Whether there is no any other way to reach to the houses of the plaintiffs except the disputed property A,B,C,D,?. (iii) Whether incomplete and incorrect land has been shown in the plaint?. (iv) Whether the suit is devalued and the court fee paid is insufficient?. (v) Whether the suit is barred by the provisions of Sections 34 and 41 of Specific Relief Act?. 3 (vi) Relief?. 5- Parties led oral as well as documentary evidence in the suit. The trial court after hearing learned counsel for the parties and perusing the evidence on record, came to the conclusion that the disputed land is the village pathway and the plaintiffs have been using the said land as Rasta to their houses and the land does not belong to the defendants. The defendants/appellants did not pressed issue nos. 3 and 5 before the trial court. Therefore, the trial Court held that sufficient court fee is paid and the suit is not barred by the provision of Sections 34 and 41 Specific Relief Act. Accordingly, the trial Court decreed the suit vide judgment and decree dated 13-3-2000 and restrained the defendants from raising construction over the land A,B,C,D, and also directed them not to interfere in the use of the said land as pathway by the plaintiffs. 6- Against the aforesaid judgment and decree, the defendants/appellants preferred appeal before the Additional District Judge/First F.T.C. Haridwar, who vide judgment and decree dated 28-8-2002, dismissed the appeal. 7- Now the defendants/appellants have come up in second appeal before this Court. 8- At the time of admission, the appeal has been admitted on the following substantial questions of law:- (a) Whether the land, appurtenant to the building of the defendants/appellants, which is being used as a SAHAN of the building shall be deemed to have been settled with their 4 ancestors under Section 9 of the U.P. Z.A. & L.R. Act?. (b) Whether an injunction can be granted against a person in respect of the land appurtenant to his building which has by operation of law been settled with them under Section 9 of the U.P. Z.A. & L.R. Act?. 9- Heard learned counsel for the parties and perused the record. 10- Learned counsel for the defendants/ appellants has submitted that the disputed land is the Sahan land of the defendants/appellants and they have been using the said land as sahan land prior to coming into force of U.P.Z.A. & L.R. Act. and the land has been settled amongst the ancestors of the defendants U/S 9 of U.P. Z.A. & L.R. Act. He also argued that the trial Court did not frame specific issue on this point and has committed a manifest error in decreeing the suit. 11- The learned counsel for the plaintiffs/respondents has submitted that both the courts below have recorded concurrent finding of fact on the point of use of disputed land by the plaintiffs/respondents as pathway to their houses and the land does not belong to the defendants/appellants and no substantial question of law is involved in the appeal. 12- I have perused the judgments rendered by both the courts below and have gone through the evidence on record. The trial court considered the contention about vesting of the disputed land U/S 9 of U.P. Z.A. & L.R. Act. The trial Court held that the 5 defendants did not adduce any evidence in this regard. The only witness adduced by the defendants is D.W.1, Anil Kumar, who has stated this much in his deposition that the disputed land came to them from their ancestors. It has come in evidence that this witness was born in 1967 and at the time when the U.P. Z.A. & L.R. Act came into force he had no occasion to know about the position of the disputed land, therefore, his interested statement cannot be relied upon in absence of other cogent and reliable evidence. Had the disputed land been used as sahan land by the defendants/appellants, they would have certainly produced some independent person to depose before the trial court but it has not been done by them. On the other hand, the plaintiffs/respondents have alleged that they are owner in possession of the houses prior to enforcement of U.P.Z.A.& L.R. Act and they have been using the pathway A,B,C,D, since the time of their village coming into existence and there is no other way to reach to their houses. The plaintiffs assertion further is that there exist two electric poles over the disputed land and electric line is passing through the said land. The defendants have also admitted that electric line is passing through the disputed land. Baru P.W.1, Bugali P.W.2, and Ram Pal P.W.3, have specifically stated in their statements that the disputed land is in their use from the time of their ancestors, the disputed pathway is also used by other villagers and the said land is not sahan land of the defendants. The Advocate Commissioner in his report has specifically alleged that the disputed land is open land in front of houses of defendants which is being used as pathway. D.W.1 Anil Kumar in his cross-examination has also admitted this fact that the disputed land is being used as pathway. Therefore, in absence of any evidence that the disputed land is being used as sahan 6 land by the defendants and it has vested in them U/S 9 of U.P. Z.A. & L.R. Act, the learned Civil Judge (J.D.) has rightly concluded that the land is not the sahan land and it is the pathway of the village and the plaintiffs/respondents have been using it as Rasta to their houses. 13- The further claim of the defendants/appellants is that they have raised thatch, wall and Kuladi on the disputed land. This claim is also not proved by the report and the map of the Advocate Commissioner. The Advocate Commissioner has shown manure pit at place ‘M’ and thatch at place ‘N’ in his map and these places have been shown towards eastern side of the houses of the defendants and not over the disputed land. The report of the Advocate Commissioner fully supports the version of the plaintiffs/respondents. 14- The defendants/appellants also raised this contention before the first appellate court that the disputed land has vested in them U/S 9 of U.P.Z.A.& L.R. Act as they have been using the same as their sahan land prior to operation of the said Act. The first appellate court upheld the finding of trial court on this point and has recorded a categorical finding that the defendants/appellants did not discharge their burden of proving this fact by adducing the reliable evidence. Therefore, it cannot be said that the courts below have not adjudicated the matter on the point of vesting of the disputed land U/S 9 of the U.P.Z.A.& L.R. Act. 15- Learned counsel for the defendants/appellants also raised the submission that there is another way to the houses of the plaintiffs. He relied upon the statement of Ram Pal given by him before Additional C.J.M. 7 Roorkee in a criminal case No. 170/1993 Stage Vs. Anil U/Ss 336,323,504 I.P.C. This witness has given the statement that there is a way in the village which goes from village to Bandhe. According to him about three years ago 12 feet Rasta was made available for the use. The above witness plaintiff Ram Pal P.W.3, has denied his above statement. In his cross-examination before the Addl. C.J.M. this witness has specifically stated that he is using the Rasta which goes towards eastern side of the Anil’s house. The defendants/appellants did not make any effort to adduce evidence to establish this fact that another Rasta is there at the spot. For the sake of argument, if alternate Rasta is there, the plaintiffs/respondents cannot be restrained from using the disputed pathway which they have been using from before. From the material available on record it is quite clear that the plaintiffs/respondents have been able to prove that the disputed pathway A,B,C,D, is in existence in village Kunwakheda and they along with other villagers have been using the same. The defendants/appellants have not been able to prove their claim over it. 16- For the reasons stated above, I am of the view that the substantial question of law framed at serial no. (a) in this appeal is answered against the defendants/ appellants. 17- As far as substantial question of law framed at serial no. (b) is concerned, it has already come by way of the evidence that the land in question is not being used as a sahan by the defendants/appellants. Therefore, if the land in question is not the appurtenant land of the building of the defendants/appellants, then the injunction could very well have been granted in favour of the plaintiffs/respondents and this substantial question 8 of law is also answered against the defendants/appellants. 18- Further, both the courts below have recorded concurrent finding of facts. It is settled principle of law that howsoever erroneous the concurrent finding may be, the same cannot be interfered with in the second appeal. As stated in earlier part of the judgment, the plaintiffs/respondents have been able to establish that there exists village pathway A,B,C,D, and they have been using the same to reach to their houses, their contention is supported by the report and map prepared by the Advocate Commissioner also and the defendants/appellants have miserably failed to prove their claim by adducing cogent and reliable evidence, therefore, I do not find any ground to interfere with the finding arrived at by both the courts below. 19- The appeal lacks merit and is liable to be dismissed. 20- Accordingly, the appeal is dismissed. The impugned judgments and decrees passed by both the courts below are hereby confirmed. 21- The interim order, if any, stands vacated. (B.C. Kandpal, J.) ISB 9