IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 264 of 2008. Date of Decision: 23rd November, 2011. _________________________________________________________ 1. Som Nath son of Shri Hakim Ram, 2. Ramesh Chand son of Shri Hakim Ram, Caste Brahmin, residents of Village Charatgarh, Tehsil and District Una, Himachal Pradesh. ….Appellants/defendants. Versus 1. Yoginder Kumar son of Shri Rikhi Ram son of Hira Ram, 2. Prem Kumar son of Shri Rikhi Ram son of Hira Ram, 3. Sudesh Kumar son of Shri Rikhi Ram son of Shri Hira Ram, 4. Satish Kumar son of Shri Rikhi Ram son of Shri Hira Ram, 5. Smt. Bimla Devi widow of Shri Tota Ram, Caste Brahmin, residents of Village Charatgarh, Tehsil and District Una, Himachal Pradesh. ……Respondents/Plaintiffs. Regular Second Appeal under Section 100 of the Code of Civil Procedure. Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the Appellants: Shri Ramakant Sharma, Advocate For the respondents: Shri Ajay Sharma, Advocate Dev Darshan, J. (oral) This appeal has been preferred by the defendants against the judgment and decree of the learned District Judge, Una reversing the judgment and decree of the learned trial Court dismissing the suit of the plaintiffs. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. The learned Appellate Court has noticed the facts in detail which may be considered. The subject matter of the suit is land which was described in letter “ABCDEFG” which was coloured red in the site plan Ex. PW1/A. It was pleaded that this land is a common passage and part of abadi deh comprised in khasra No.947 recorded in the Aks Musabi Bandobast. The plaintiffs sought decree for permanent prohibitory injunction restraining the defendants from creating hindrance in the passage by raising any construction or causing any obstruction to the user of this passage. In the alternate, a prayer was made that any construction etc., raised during the pendency of the suit then a decree for mandatory injunction be granted. 3. The defendants denied the existence of such passage and claimed that this passage was integral part of khasra No.1598 which was owned and possessed by them. It was also pleaded that they (plaintiffs) have their own direct approach, therefore, could not encroach upon the rights of the defendants. 4. The learned District Judge has noticed the evidence in detail and arrived at findings which are based on the evidence and facts on record. The learned District Judge also notices that there was some dispute between the parties and judgment Ex.P4 which has attained finality, in this the defendants were plaintiffs, clearly shows that this passage exits. It is in this light that the suit was decreed 5. I have heard the learned counsel for the parties. The only substantial question of law which arises for determination in this appeal is : 3 “1. Whether the learned Lower appellate Court is right in considering Exhibit PW-1/A and discarding Exhibit DW1/A without any reason?” 6. On a detailed consideration by the Appellate Court of the facts on record and the judgment interse parties which has attained finality, I am not persuaded to hold on the evidence that Ex.DW1/A has been ignored. What was required to be considered was that the plaintiffs’ claim for such passage should and ought to have been established. This was proved on the evidence on record and considered by the Appellate Court including the judgment interse the parties which has attained finality. The findings of the learned Appellate Court are based on sound appreciation of the evidence. What I find from the record that the claim of the defendants as put forward in Ex.DW1/A has been rightly ignored. In these circumstances, the evidence on record need not be re-appreciated. Therefore, this question of law is decided against the appellant. This appeal is dismissed accordingly. No order as to the costs. 7. All miscellaneous applications also stands disposed of. ( Dev Darshan Sud), 23rd November, 2011. Judge (jai)