IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.313 of 1998. Reserved on:29.09.2008. Decided on: October 03, 2008. Naresh Chauhan & Ors. …Appellants. VERSUS Kuldeep Chand ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants: Mr G.D.Verma, Sr.Advocate with Mr.Romesh Verma, Advocate. For the respondent: Mr.Ajay Sharma, Advocate. Kuldip Singh, Judge This appeal has been directed against judgment, decree dated 21.7.1998 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No.69-P/XIII/97 confirming judgment, decree dated 8.8.1997 passed by learned Sub Judge 1st Class (1), Palampur in Civil Suit No.218 of 1992 decreeing the suit of the respondent / plaintiff. 2. The pleaded case of the respondent is that he is owner in possession of land comprised in Khata No.207, Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… Khatauni No.303 Khasra No.586 measuring 0-11-07 hectares Mohal Sughar, Mauza Bundla, Tehsil Palampur, District Kangra. The appellants have no right, title or interest in the land but they are threatening to interfere on the suit land and they want to forcibly occupy the suit land. It has been alleged that on 1.7.1992 the appellants had removed the fencing of the suit land which was raised by respondent. 3. The appellants contested the suit by filing written statement in which they have taken preliminary objections of maintainability, locus standi, limitation, estoppel, cause of action, mis-joinder of necessary parties. On merits they have denied that respondent is in possession of whole of the suit land. According to them, there exists a path 12’ to 14’ in width from road up to the house of Dinesh Chauhan. The appellants and other persons of the locality had been using that path since the date they had purchased the land. The appellants have right to use the path which exists on the suit land. The respondent on 19.5.1977 had sold Khasra No.580/1/1/1/4 measuring 0-11-16 hectares to Lajpat Rai Kalra and a path 12’ in width from road up to land purchased by Lajpat Rai Kalra was given by respondent …3… from Khasra No.586. Dinesh Chauhan on 8.9.1980 purchased a part of land from Lajpat Rai Kalra comprised in Khasra No.580/1/1/1/4/2 measuring 0-7-36 hectares along with right of path which was given by respondent to Lajpat Rai Kalra. The appellant No.3 since 8.9.1980 had been using the said path. The appellant No.2 is the tenant in the house constructed by appellant No.3 who is son of appellant No.1. The respondent filed replication and denied the case set up by the appellants. The learned Sub Judge on 8.8.1997 decreed the suit. The appellants filed appeal which was dismissed by learned District Judge on 21.7.1998. Therefore, the appellants have come in second appeal. 4. The appellant No.1 died during the pendency of the appeal and his legal representatives were brought on record. The appeal was admitted on 3.9.1999 but without reference to any specific substantial questions of law though the following substantial questions of law were duly framed and filed along with the memorandum of appeal:- i) Whether the plaintiff is not entitled to discretionary relief of injunction? …4… ii) Whether the suit is bad for mis-joinder and non-joinder of all the necessary parties? iii) Whether the claim of the respondent is barred by limitations and courts below have failed to consider this plea as raised by defendants? iv) Whether findings recorded by both the Courts below are vitiated for want of proper appreciation and consideration of the pleadings of the parties as well as oral and documentary evidence on record? v) Whether the admissions as made by respondent / plaintiff and also as contained in the material on record, dis- entitled the plaintiff to claim decree of injunction? vi) Whether right of passage as admitted by the plaintiff as per sale deed DW-2/A in favour of Shri Lajpat Rai Kalra cannot be denied to the appellants who are transferee from Shri Lajpat Rai that the plaintiff having admitted that there is no alternate path available to the house and plot of the appellants, therefore, he was required to show path which he was …5… ready to provide in case he had to obtain decree of injunction? The appeal has been heard by treating the above questions as substantial questions of law with the consent of learned counsel for the parties. 5. I have heard Mr.G.D.Verma, learned Senior Advocate assisted by Mr.Romesh Verma, learned counsel for the appellants and Mr.Ajay Sharma, learned counsel for the respondent and gone through the record. Mr.Verma has submitted that the two Courts below have not properly appreciated the oral and documentary evidence more particularly sale deeds Ext.DW-2/A and Ext.DW-5/A and other material on record. It has been submitted that the appellants are already using the passage through their predecessor Lajpat Rai Kalra since 1977, therefore, the respondent is not entitled to discretionary relief of injunction. The claim of respondent is barred by limitation, the necessary parties have not been impleaded. The pleadings have not been properly appreciated, admissions of respondent on record are sufficient to non suit him. Mr.Verma has prayed for setting aside the impugned judgment, decree and allowing the appeal. The learned counsel for the respondent has …6… supported the impugned judgment, decree. He has submitted that the two Courts below have concurrently held against the appellants on the basis of facts which require no interference in the second appeal. He has prayed for dismissal of the appeal. SUBSTANTIAL QUESTIONS OF LAW NO.(i) to (vi): 6. The substantial questions of law No.(i) to (vi) are interconnected, therefore, all are being disposed of collectively. Ext.DW-2/A dated 19.5.1977 is the sale deed of land comprised in Khasra No.580/1/1/1/4 measuring 0- 11-16 hectares in favour of Lajpat Rai Kalra by vendor Kuldeep Chand. In this sale deed it has been stated that vendor has given 12’ wide passage from the road to the vendee for use. Ext.DW-5/A is the copy of sale deed vide which Lajpat Rai had sold land comprised in Khasra No.580/1/1/1/4/2 measuring 0-7-36 hectares to Naresh Kumar, Dinesh Kumar. In sale deed Ext.DW-5/A dated 8.9.1980 it has been stated that right of user of 14’ wide passage on the western side has also been given to the vendees. The learned counsel for the appellants has submitted that the passage mentioned in sale deed Ext.DW-2/A and sale deed Ext.DW-5/A is on Khasra No.586. Per contra, learned counsel for the respondent …7… has submitted that there is no passage on Khasra No.586 as claimed by appellants. 7. The perusal of sale deed Ext.DW-2/A would show that Khasra number of the passage has not been given in the sale deed Ext.DW-2/A as well as in sale deed Ext.DW-5/A. The respondent has been shown owner of entire khasra No.586 in Jamabandi 1988-89 Ext.P-2 and in another Jamabandi 1988-89 Ext.P-5. In remarks column in Jamabandi Ext.P-5 it has been mentioned that some portions of Khasra No.586 have been transferred in favour of some other persons by respondent, but it is not the case of appellants that they are owners of any part of Khasra No.586. The most important question is whether appellants have proved their right of passage on Khasra No.586. In sale deed Ext.DW-2/A the width of the passage has been shown 12’ without mentioning its length. In sale deed Ext.DW-5/A the width of the passage has been shown 14’ again without mentioning its width. There is no tatima annexed with sale deed Ext.DW-2/A or sale deed Ext.DW-5/A showing the passage. It has been proved on record that respondent at one time was owner of Khasra No.580/1/1/1/4 and Khasra No.586. In absence of material on record, it is not possible to infer that the …8… passage mentioned in sale deed Ext.DW-2/A and sale deed Ext.DW-5/A is the passage which appellants are claiming on Khasra No.586. The sale deed Ext.DW-2/A and sale deed Ext.DW-5/A are not supporting each other regarding the width of the passage. In sale deed Ext.DW- 5/A the passage has been shown on the western side of the sold land but it is not so recorded in the sale deed Ext.DW-2/A. 8. The learned counsel for the appellants has submitted that respondent has admitted the existence of the passage on Khasra No.586. The respondent, in his statement as PW-1, has stated that the passage which he had given to Kalra is different from the passage in dispute. DW-6 Lajpat Rai Kalra is the vendor in sale deed Ext.DW- 5/A. He has stated that he does not remember the Khasra number of the passage. He has not gone to the spot after selling the land. In other words, DW-6 Lajpat Rai Kalra, predecessor of appellants, has not identified the passage or the Khasra number on which the passage, as claimed by appellants, is existing. The respondent has proved his title on the suit land. The appellants have claimed passage on Khasra No.586. In these circumstances, it was for the appellants to prove existence …9… of passage on Khasra No.586 and to identify it. In sale deed Ext.DW-2/A and Ext.DW-5/A the Khasra number of the passage has not been mentioned, therefore, the appellants cannot take benefit of sale deed Ext.DW-2/A and Ext.DW-5/A to claim passage on Khasra No.586. The respondent has nowhere admitted existence of passage on Khasra No.586, his case is that the passage mentioned in sale deed Ext.DW-2/A and Ext.DW-5/A is on some other land. 9. It has not been specifically pointed out on behalf of the appellants during hearing that which specific pleadings and documentary evidence has been ignored by the two Courts below. The two Courts below have recorded a finding of fact on the basis of material on record and in second appeal appreciation of evidence is not permissible. It is not a case where some admissible evidence which goes to the root of the case has been ignored or some inadmissible evidence which materially affects the decision of the case has been considered by the Courts below. The respondent has nowhere admitted passage on Khasra No.586. It has been submitted on behalf of the appellants that suit is barred by limitation. There is no issue of limitation. The suit is for permanent …10… prohibitory injunction based upon cause of action dated 1.7.1992. The suit was filed on 17.10.1992. Hence, suit is very much within limitation. The respondent has filed suit for permanent prohibitory injunction against the appellants without claiming any relief against any other person, hence, suit is not bad for mis-joinder and non- joinder of parties. The respondent has proved his title on the suit land and threatened acts of interference by the appellants, therefore, respondent is entitled to discretionary relief of injunction. The respondent was not required to prove existence of any path available to the appellants. The appellants have not identified alleged passage on Khasra No.586 nor they have filed any counter claim. The two Courts below have rightly appreciated the material on record. The appellants have failed to make out any case for interference. The substantial questions of law No.(i) to (vi) are decided against the appellants. 10. No other point was urged. 11. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. October 03, 2008. (Kuldip Singh ), J. (soni)