IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA Nos.95 and 96 of 2008. Judgment Reserved on:22.10.2009. Date of decision : 24.11.2009. 1. RSA No.95 of 2008. Smt.Prabhi Devi & Others. …Appellants Versus Municipal Corporation, Shimla. and Others …Respondents. 2. RSA No.96 of 2008. Smt.Rajkumari Sood & Ors. …Appellants Versus Rajmall Rajput & Another …Respondents Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. RSA No.95 of 2008. For the Appellants: Mr.Ajay Kumar, Advocate. For respondent No.1: Mr.Shrawan Dogra, Advocate. For respondents 2 & 3: Mr.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. RSA No.96 of 2008. For the Appellants: Mr.Ajay Kumar, Advocate. For respondents 1 & 2: Mr.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. Dev Darshan Sud, J. Both these appeals are being disposed of by a common judgment. 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. 2 RSA No.95 of 2008. This appeal has been instituted by the plaintiff while he is unsuccessful in both the courts below. A suit for permanent prohibitory injunction has been instituted against the respondents restraining them from making any construction on the suit land as claimed. The Municipal Corporation which has been arrayed as defendant No.1 filed its written statement pleading that both the plaintiffs and defendants No.1 were summoned before the building plans of the other defendants were sanctioned. They were heard and it was only thereafter that the plans were sanctioned. On the settled issues, three crucial issues arose for determination, namely, the entitlement of the appellants-plaintiffs to a decree for prohibitory injunction; the legality of order dated 3.6.1995 passed by the Municipal Corporation sanctioning the plans of other defendants and entitlement of the plaintiffs for decree of mandatory injunction. These issues were held against the plaintiffs. While deciding these issues, the learned trial Court notices that the entire controversy between the parties centers around the existence of a common passage over Khasra No.543. The learned Court holds that this controversy already stands adjudicated by Sub Judge, Court No.2, Shimla in Civil Suit No.45/1 of 98/95, decided on 15.5.2003, titled as: Smt.Raj Kumari & Others vs. Rajmal Rajput and Others. 3 Copies of the judgment Ex.PW-2/B and Ex.PW-2/C have been placed on record. The issues were, therefore, held against the plaintiffs. On the other issues, namely, issues No.3 to 12, the Court notes that no evidence has been led and they are decided against the plaintiffs. Appeal preferred by the plaintiffs, was dismissed by the learned appellate Court holding that there is no evidence on the record. RSA No.96 of 1998 This appeal arises out of the dismissal of the Civil Suit No.45/1 of 98/95, which is the basis for dismissal of the second suit filed by the plaintiffs. The case set out therein was that the plaintiffs are entitled for permanent prohibitory injunction against the defendants restraining them from demolishing or interfering with the repair work of the retaining wall and for diverting the flow of drain water into the common passage in Khasra No.543. On the settled issues i.e. issues No.1 and 2 relating to the entitlement of the appellants-plaintiffs to a decree for permanent prohibitory and mandatory injunction, the plaintiffs relied upon the evidence of PW-4, Shri Surjit Singh, his technical report Ex.PW-4/A and spot map Ex.PW-4/B. The respondents-defendants relied upon the evidence of Shri B.R. Sexena and his report Ex.DW-3/A. While considering these documents, the learned trial Court holds that the reports Ex.PW-4/A and Ex.DW-3/A are not conclusive to establish as to whether there is a common passage and 4 drain on Khasra No.543. Similar was the interpretation of the Court with respect to Ex.PW-4/B and Ex.DW-3/B. The Court, therefore, dismissed the suit and the learned appellate Court has affirmed these findings in appeal. This appeal was admitted on 14.3.2008 on the following substantial questions of law:- “1. Whether the findings of the learned trial Court and the first appellate Court are contrary to the evidence or based upon inadmissible evidence and a result of erroneous and wrong inferences from proved facts? 2. Whether the Courts below have drawn wrong conclusions by misinterpreting the law as applicable to the proved facts of the case? 3. Whether the learned first Appellate Court failed to formulate proper points for determination which has affected its judgment and resulted into miscarriage of justice? 4. Whether the findings of the Courts below are a result of complete misreading or pleadings, evidence and the law applicable to the proved facts of the case and particularly misreading the documents Ex.PA, DZ1, Ex.PX1, Ex.PX2, Ex.PX3, Ex.DZ and PZ as also Ex.PW-8/F1 to F10 and if so to what effect?” 5 Questions No.1 and 2: Both these questions need not detain this Court as they relate to adjudication of the fact as to whether the findings of the Courts below are based on inadmissible evidence and erroneous inferences drawn from facts and misinterpretation of law as applicable. All that needs be said is that I have been unable to find out from the record any piece of evidence which can be said to be inadmissible. The question of applicability of the law would arise only once it is established that a particular set of facts exist and there can be only one inference from the established facts. The learned trial Court rightly comes to the conclusion that the documentary evidence produced both by the plaintiffs and the defendants is inconclusive regarding the existence of a passage etc. No reliance has also been placed on the evidence of expert of the defendants-respondents as the learned Court below concluded that the identity of the suit property cannot be determined by reference to the reports as noticed above. These questions are, therefore, decided against the appellants. Question No.3: This question deserves to be decided against the appellants straightway. The learned appellate Court has gone into the entire evidence of the parties and also considered the judgment of the trial Court. It cannot be said that the conclusions arrived at by the 6 learned appellate Court are wrong or against law. All the points urged have been adjudicated by the appellate Court. This question is, therefore, also decided against the appellant. Question No.4: This is a omnibus question which has been addressed to the Court with reference to the documents. On this question all that needs to be said is that Ex.PX-1 to Ex.PX-3, Ex.PW-F-8 to Ex.PW-F-10, Ex.DZ and Ex.PZ are photographs which according to the plaintiffs also discloses the existence of the facts urged. This submission cannot be accepted as the photographs perse would not establish the case of the plaintiffs. So far as Ex.PX is concerned, there is no misinterpretation of the judgment on record. The appellants seek re- determination of facts already established before the Courts below. This question is decided against the plaintiffs. Adverting to RSA No.95/2008, again the appeal was admitted only on questions No.2 and 4:- “2. Whether the Courts below have drawn wrong conclusions by misinterpreting the law as applicable to the proved facts of the case? 4. Whether the findings of the Courts below are a result of complete misreading or pleadings, evidence and the law applicable to the proved facts of the case and 7 particularly misreading the documents. Documents Ex.PW-2/N, PW- 2/M, PW-2/O, PW-2/P, PW-2/Q, PW-2/R and Ex.DX, DY and DZ and if so to what effect?” I have perused carefully the report of technical expert Ex.PW-4/A, Ex.PW-4/B, Ex.DW-3/A and Ex.DW-3/B, which are unilateral documents prepared by the parties in support of their respective contentions. I do not find that the appellants have been able to urge any other or new point for consideration. These questions are, therefore, decided against him. Both these appeals are dismissed with costs throughout. November 24, 2009 (Dev Darshan Sud) (aks) Judge.