Regular Second Appeal No.1228 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-15.7.2010 Dharam Pal and others ...Appellants Versus Wazir Singh ..Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.G.S.Gandhi, Advocate for the appellants. M ehinder S ingh S ullar , J . (Oral) As the Courts below duly recapitulated and described the factual matrix of pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same. However, the facts, which need a necessary mention for deciding the present regular second appeal and emanating from the record, are that Wazir Singh son of Hem Raj respondent-plaintiff (hereinafter to be referred as “the plaintiff”) filed the present suit for a decree of permanent injunction, restraining Karnail Singh, Raghbir Singh and Dharam Pal sons of Jhandu appellant-defendants (hereinafter to be referred as “the defendants”) from interfering in their use of the gairmumkin passage (Rasta) measuring 0 Kanal 9 Marlas, comprised in Killa No.18/1 (0-9) and 19/1 (less than 1 marla). The plaintiff claimed that there is only one disputed passage for out-gress and ingress to his house and agricultural land. The defendants want to block the same by ploughing/cultivating, in order to change its nature and user without any legal rights. 2. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of the suit, locus standi and cause of action of the plaintiff. On merits, the defendants have Regular Second Appeal No.1228 of 2010 2 denied the actual existence of the passage in dispute at the spot and claimed that they have sown wheat crop over it. Concisely, the defendants claimed their possession over the disputed passage and prayed for dismissal of the suit. 3. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication and further explained that he alongwith his brother was owner and in possession of the agricultural land comprised in rectangle No.16, killa Nos.1,2,9,10,11 and 12. No passage was provided to their land during the consolidation of holdings. So, his brother Om Parkash filed a petition under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short “the Act”) before the Director Consolidation for providing the passage to their land. As per order of the Director, the concerned Consolidation Officer carved out and provided the passage in question, vide order dated 31.5.1994. The defendants were given 0 Kanal 9 Marlas of land out of killa No.11 of rectangle No.16, which was earlier owned by the plaintiff and his brother, in lieu of land measuring 0 K 9 M taken as passage from the defendants. The mutation, on the basis of the order passed by the Consolidation Officer, was also sanctioned and entered in the revenue record. 4. The case of the plaintiff further proceeds that the order dated 31.5.1994, providing the passage in dispute, was challenged by the defendants in civil suit No.643 of 1994 titled as “Karnail Singh etc. Vs. Om Parkash etc.”,but the same was dismissed by the trial Court, vide judgment and decree dated 1.2.2000. The appeal filed by the defendants was also dismissed by the Ist Appellate Court, vide judgment and decree dated 9.10.2002. 5. Levelling a variety of allegations, in all, according to the plaintiff, he is using the passage in question and equal land, out of the land of the plaintiff and his brother, has already been given to the defendants, in lieu of this passage, but they intend to put hurdles in their way to use the same without any legal right. On the basis of the aforesaid pleadings, the plaintiff filed the suit for a decree of Regular Second Appeal No.1228 of 2010 3 permanent injunction against the defendants, in the manner indicated here-in- above. 6. In the wake of pleadings of the parties, the trial Court framed the relevant issues for adjudication of the case. 7. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective pleas. 8 Having completed all the codal formalities and on ultimate analysis of the evidence on record, the trial Court decreed the suit of the plaintiff, vide impugned judgment and decree dated 2.2.2008. 9. Aggrieved by the judgment and decree of the trial Court, the defendants filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 11.11.2009. 10. The appellant (defendants) still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. 11. After hearing the learned counsel for the appellant-defendants, going through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 12. The main argument of the learned counsel that the Director/Consolidation Officer did not have the jurisdiction to provide the disputed passage, vide order dated 31.5.1994 and since the defendants are in possession of the same, so, the Courts below fell in error in decreeing the suit of the plaintiff, is neither tenable, nor the observations of this Court in cases Ajit Singh and others v. Additional Director, Consolidation of Holdings, Punjab and another, 2004 (3) RCR (Civil) 559; Shrimati Nasib Kaur v. the Additional Director, Consolidation of Holdings, Punjab and others 1998 (1) P.L.J. 114; Harjit Singh v. State through Additional Director, Consolidation, Punjab, Mohali 1997 (2) RCR (Civil) 536 and Banarsi Dass v. Director, Consolidation of Holdings, Haryana, 1995 (3) RRR 357, Regular Second Appeal No.1228 of 2010 4 are at all applicable at this stage to the facts of this case. 13. Possibly, no one can dispute about the crux of the observations in the aforesaid judgments that the Director, Consolidation has no jurisdiction to entertain an application under section 42 of the Act after 25 years of consolidation proceedings. He can entertain the same for limited matters at the instance of right holders at the time of consolidation and the persons acquiring title to the property after consolidation have no right to move such application, but the same would not come to the rescue of the appellants in the present controversy. 14. As is evident from the record, the plaintiff filed the simple suit for permanent injunction restraining the defendants from interfering in the use of gairmumkin passage in dispute. It is not a matter of dispute that in pursuance of the order of the Director, the concerned Consolidation Officer actually carved out and provided the disputed passage measuring about 0 kanal 9 marlas comprised in Killa Nos.18/1 (0-9) and 19/1 (less than one marla), vide order dated 31.5.1994. The mutation/entries, to this effect, have been incorporated in the relevant revenue record. The equal land of the plaintiff and his brother from killa No.11 of rectangle No.16 has already been given to the defendants, in lieu of the land of disputed passage. Whether the consolidation authorities had the jurisdiction to carve out and provide the passage in dispute, is not subject matter to be decided in the present suit, particularly when the suit, filed by the defendants, challenging the order dated 31.5.1994 of the Consolidation Officer, providing the passage in question, has already been dismissed by the trial Court, vide judgment dated 1.2.2000 (Ex.P2) and decree (Ex.P3). That means, the existence of the disputed passage is duly proved on record and defendants have got no legal right to interfere in it in any manner. Hence, the contrary arguments of the learned counsel for the appellant- defendants “stricto sensu” deserve to be and are hereby repelled, under the present set of circumstances. 15. All remaining arguments, relatable to the appreciation of evidence, Regular Second Appeal No.1228 of 2010 5 now sought to be urged on behalf of the appellant-defendants, have already been duly considered and dealt with by the Courts below, in this relevant direction. 16. There is another aspect of the matter, which can be viewed from a different angle. The Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the concurrent findings of fact that the Consolidation Officer, vide order dated 31.5.1994, has actually carved out and provided the passage in dispute to the plaintiff and the defendants have got the same area of land from the land of the plaintiff and his brother in lieu of the land of the disputed passage. The suit filed by the defendants, challenging the indicated order, has already been dismissed on 1.2.2000. Their appeal was also dismissed, vide judgment dated 9.10.2002. They have got no right to interfere in the use of the plaintiff in the passage in dispute. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-defendants, so as to take a contrary view, than that of the well reasoned decision already arrived at by the Courts below, in this regard. 17. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the courts below as contemplated under section 100 CPC in the obtaining circumstances of the instant case. Regular Second Appeal No.1228 of 2010 6 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendants. 19. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 15.7.2010 Judge AS