IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.39 of 2000 Date of decision : February 23, 2010 Suresh Chand …Appellant. Versus Sunka Ram …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Onkar Jairath, Advocate. For the Respondent : Mr. Vinod Thakur, Advocate. Surjit Singh, J (Oral) The present Regular Second Appeal was admitted on the following two substantial questions of law, vide order dated 31st May, 2000: 1. Whether a right with regard to path which is admitted by the parties to the cause in writing in a proceeding under Cr.P.C. are binding between the parties in the Civil proceedings? If so, its effect. 2. Whether the document Ex. PW6/A report of Tehsildar (Naib Tehsildar), copy of mutation and Ex. PW7/A (compromise) have been misconstrued and misread by the Ld. Courts below? If so, its effect. 2. Facts, relevant for disposal of the appeal, may be noticed. Plaintiff-appellant Suresh Chand filed a suit for permanent prohibitory injunction, restraining the defendant-respondent Sunku Ram from causing any Whether reporters of the local papers may be allowed to see the judgment? …2… obstruction in the passage running through his (respondent’s) land bearing Khasra No.545, situate in village Jangal, Mauza Alampur, Tehsildar Palampur, District Kangra, and also for mandatory injunction, directing him to remove the obstruction already caused, pleading that he was owner of land comprised in Khasra No.101, 319 and 320, over which he had constructed a pucca house and that the only approach to that house was through Khasra No.545. He pleaded that passage was in existence since times immemorial and that initially Khasra No.545 was Shamlat land and later it vested in the Government and the Government allotted the same to the defendant- respondent. It was stated that even though the allotment had been made in respect of the entire area of Khasra No.545 and some other Khasra numbers in favour of the defendant-respondent, but despite such allotment the passage, which had been in existence even before the vestment of the land in the Government, remained intact and in use. 3. Defendant-respondent in his written statement did not specifically deny that the alleged passage claimed by the plaintiff was the only approach to his house. However, he denied that any portion of Khasra No.545 had ever been used as a passage by the plaintiff or his predecessors or any other resident of the village and that the entire area had been in his possession and use ever …3… since allotment by the Government in his favour, which took place in the year 1971-72. It was also stated that the plaintiff was estopped to file the suit. Maintainability of the suit was also questioned. It was also stated that the plaintiff had neither the locus standi nor did he have the cause of action to institute the suit. 4. Trial Court dismissed the suit, holding that as per order of allotment, the entire area of Khasra No.545 had been allotted to the defendant-respondent and that no portion of it was shown to be a passage, either in the order of allotment or the revenue record, pertaining to said khasra number. Appeal filed by the plaintiff-appellant against the judgment and decree of trial Court, in the first Appellate Court, i.e. the Court of District Judge, stands dismissed. 5. Before the institution of the suit plaintiff- appellant had filed a case, under Section 107/150 of the Code of Criminal Procedure, in the Court of Executive Magistrate at Palampur against the defendant-respondent. It appears that the said complaint was filed when the defendant threatened to obstruct the alleged passage running through one side of Khasra No.545. There had been a compromise between the parties. The same is Ex. PW-7/A. In terms of this compromise, the defendant- respondent agreed to remove the obstruction and to keep the claimed passage open for use by the plaintiff-appellant. …4… 6. After the aforesaid compromise, mutation, copy Ex. PW-1/A, was attested on 31st May, 1990. As per this mutation order, not the entire area of Khasra No.545 but only that portion which remained, after excluding the area of passage, was mutated in favour of the defendant- respondent. Appeal was filed against this mutation order by the defendant-respondent, before the Collector. The Collector, vide order dated 5th February, 1996, remanded the case to the Assistant Collector. However, it is not made out from the record as to what happened after the remand of the case, because not only that no documents, with respect to that case subsequent to remand, have been placed on record, but the parties also did not utter a word about the same, while appearing their own witnesses. 7. Defendant-respondent appears to have caused obstruction again and a case, under Section 133 of the Code of Criminal Procedure, was instituted by the plaintiff- appellant in the Court of Sub Divisional Magistrate, Palampur. The Sub Divisional Magistrate appears to have called for the report of the Naib Tehsildar. Copy of the report of the Naib Tehsildar is Ex. PW-6/A. As per this report and the plan Ex. PW-6/B attached with the report, a portion of Khasra No.545, depicted by Khasra No.545/1 in Ex. PW-6/B, was in use as a passage and this had not been allotted to the defendant-respondent, but remained in the ownership of the Government. …5… 8. From the above discussion, it is apparent that there had been a compromise between the parties, which was reduced into writing in the form of document, copy Ex. PW-7/A. Though suggestions were thrown to the plaintiff-respondent and his witnesses that compromise Ex. PW-7/A was the result of pressure exerted upon the defendant-respondent, yet the defendant-respondent, while in the witness-box, did not whisper even a word about any kind of pressure by the Tehsildar or the Tehsildar having any prejudice against him or his being favourably disposed towards the plaintiff-appellant. Therefore, there should be no reason to discard the compromise, Ex. PW-7/A. Now, as per this compromise, defendant-respondent conceded that there was a passage leading to the house of the plaintiff- appellant, which he had obstructed and stated that he had removed the obstruction. 9. Learned first Appellate Court has observed that compromise Ex. PW-7/A does not specify or give the description of the passage and so it cannot be said that the compromise was with respect to the passage claimed by the plaintiff-appellant through Khasra No.545. 10. View taken by the learned first Appellate Court is not correct. The reason is that the plaintiff very categorically pleaded that he had only one approach to his house which ran through Khasra No.545. Defendant- respondent did not deny this fact. Therefore, it can …6… legitimately be presumed that compromise Ex. PW-7/A speaks of the passage in dispute only, which is depicted in Ex. PW-6/B (Tatima), forming part of report Ex. PW-6/A of Naib Tehsildar. Ex. PW-7/A can be used in favour of the plaintiff-appellant not only as a compromise between the parties, but also as an admission by the defendant- respondent about existence of passage, in question. 11. In view of the above discussion, both the substantial questions of law, on which the appeal was admitted, are decided in favour of the plaintiff-appellant. The appeal is accepted. Judgments and decrees of the two Courts below are set aside. Suit of the plaintiff is decreed and a decree of mandatory injunction directing the defendant-respondent to remove the obstruction caused by him in the passage depicted by Khasra No.545/1 in Tatima Ex. PW-6/B, as also a decree of permanent prohibitory injunction restraining the defendant-respondent from causing any obstruction in the said passage, is passed in favour of the plaintiff-appellant and against the defendant- respondent. There is no order as to costs. Appeal stands disposed of. February 23, 2010(sd) ( Surjit Singh ), J