HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 580 of 2008 Decided on: 25.6.2010 Fateh Singh and others ………Appellants. Versus Govind Ram ………Respondent. Coram: The Hon’ble Mr.Justice Surjit Singh, Judge. Whether approved for reporting? For the appellants: Mr.R.K. Gautam Senior Advocate, with Mr.Mehar Chand, Advocate. For the respondent: Mr.Ramakant Sharma, Advocate. Surjit Singh, J.(Oral): This appeal by the defendant is directed against the judgment and decree, dated 20.9.2008, of the learned District Judge, Mandi, whereby, accepting the appeal of respondent/ plaintiff against the judgment and decree, dated 26.7.2007, of the learned trial Court, vide which the suit of the respondent/plaintiff was dismissed, learned District Judge decreed the suit of the plaintiff and passed a decree of declaration as also prohibitory and mandatory injunctions, as ______________________________ Whether reporters of local papers may be allowed to see the judgment? - 2 - prayed for by the respondent/plaintiff. 2. Respondent/plaintiff filed a suit for declaration that he had a right to pass through a narrow lane branching off from a main path running through the abadi of village Nagchala comprised in Khasra No.892, as depicted in Tatima Ext.PW-6/B. It was pleaded that the appellant/defendant, who had his house on one side of that lane and a cowshed on the other, had been causing obstruction in the use of that passage from time to time. Therefore, besides seeking declaration to the aforesaid effect, he prayed for issuance of permanent prohibitory injunction restraining the appellant/defendant from causing any interference in his right to pass through that lane to approach his house standing on adjoining Khasra No.899, which was owned by him. Also, he prayed for issuance of mandatory injunction directing the removal of obstruction in the said path, which the appellant/defendant might put up after the institution of the suit. 3. Suit was contested by the appellant/ defendant. It was pleaded that plaintiff had no passage to approach his house standing on his land - 3 - bearing Khasra No.899 and that the approach to his house was along the house of one Rajiv Sangar. 4. Learned trial Court framed various issues on the pleadings of the parties and recorded the evidence adduced by the parties and concluded that the plaintiff had failed to prove that there was a passage (a lane), as claimed by him, and consequently dismissed the suit. 5. Plaintiff filed an appeal against the decree of dismissal of his suit. The learned District Judge allowed the appeal, set aside the judgment and decree of the learned trial Court and decreed the respondent’s/plaintiff’s suit. 6. The present appeal was admitted on the following substantial question of law: “1. Whether the Ld.First Appellate Court has misread, misconstrued and misinterpreted the oral as well as documentary evidence of the parties, especially the document Ext.PW-6/A copy of Spot Map and Document Ext.PW- 6/C, Demarcation Report coupled with the statements of PW-1 to PW-3 and PW- 6, which has materially prejudiced the case of the appellants?” - 4 - 7. I have heard the learned counsel for the parties and have gone through the record. 8. Spot map Ext.PW-6/A, in which the claimed passage/lane is shown by dotted red line, has been proved by PW-6 Bhoop Singh, Kanungo, who, after carrying out the demarcation on the spot, prepared this Tatima with the help of Patwari PW-7 Paras Ram. Alongwith this Tatima, Kanungo Bhoop Singh submitted a report Ext.PW-6/C. As per this report and Tatima, there exists, on the spot, a vacant space shown by dotted red line in Ext.PW- 6/A. 9. Plaintiff examined himself and two other witnesses, namely, PW-3 Hukam Chand and PW-4 Abha Jamwal, the Pradhan of the Panchayat. All of them testified that on the spot, the appellant/defendant has his house on one side and cowshed on the other and in between there is a narrow strip, which is used as passage by the plaintiff to approach his house existing on adjoining land (bearing Khasra No.899). Hukam Chand, PW-3, stated that he had sold his house existing in the abadi bearing Khasra No.892 to one Rajeev Sangar. He denied the suggestion put to him - 5 - in the cross examination that the plaintiff had approach to his house standing on Khasra No.899 through the house/courtyard of the house of Rajeev Sangar, which the later had purchased from him (the witness). Similar suggestions were thrown to the plaintiff as also to PW-4 Abha Jamwal. They also denied such suggestions. Otherwise also, the suggestions cannot be taken to be true even though there is testimony of the appellant/defendant, who appeared as DW-1, to the effect that the plaintiff approaches his house through the courtyard of Rajeev Sangar, because, in the written statement, what is stated is not that the plaintiff has the passage through the courtyard of the house of Rajeev Sangar, but by the side of his house, which are two different things. 10. In view of the above position, substantial question of law, on which the appeal was admitted, is answered against the appellant/ defendant and consequently, the appeal is dismissed. June 25, 2010. (Surjit Singh), (TILAK) Judge.