IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 305 of 2011. Reserved on: 12.08.2011. Decided on: 30.08.2011. ___________________________________________ Megh Singh. … Appellant. Versus Babu Ram. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. Shyam Singh Chauhan, Advocate vice Mr. Neeraj K. Sharma, Advocate. For the Respondent : None. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree dated 5.2.2011 passed by the learned Additional District Judge (Fast Track Court), Hamirpur in civil appeal No.32 of 2009. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. Material facts necessary for adjudication of this regular second appeal are that the respondent/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) has instituted a suit for fixation of boundary, permanent prohibitory injunction and in the alternative for mandatory injunction. The case of the plaintiff, in a nutshell, is that he is owner in possession of land comprised in Khata No.25 min, Khatauni No.25 min, Khasra No.87, measuring 6 marlas, situate in Tika Sufan, Tappa Lohdar, Tehsil Barsar, District Hamirpur, H.P. (hereinafter referred to as “the suit land” for brevity sake). Appellant/defendant (hereinafter referred to as “the defendant” for convenience sake) is the owner of land comprised in Khata No.24 min, Khatauni No.24 min, Khasra No.88, measuring 10 marlas. According to plaintiff, a passage exists over Khasra No.88 as per site plan, which leads to his land. The path is being used by the plaintiff peacefully, uninterruptedly without any objection by way of easement. The passage is used by the plaintiff for agricultural purposes and there is no alternative passage on the spot for this purpose and the defendant is threatening to block the same. 3. The suit was contested by the defendant by filing written statement. According to the defendant, there is no passage, as alleged. According to him, no passage ever existed over Khasra No.88. - 3 - 4. Issues were framed by the learned trial Court on 23.3.2004. Thereafter additional issue No.2-A was also framed after the matter was remanded by the learned Additional District Judge (Fast Track Court) to the learned trial Court. The learned trial Court decreed the suit on 31.3.2009. Defendant preferred an appeal before the learned Additional District Judge (Fast Track Court), Hamirpur. He dismissed the same on 5.2.2011. Hence, this regular second appeal. 5. Mr. Shyam Singh Chauhan, Advocate appearing vice Mr. Neeraj Kumar Sharma, on the basis of the substantial questions of law, submits that both the Courts below have mis-read, mis-construed and mis-appreciated the evidence led by the parties. According to him, the suit could not be decreed only on the basis of technical report of PW-3, Tara Singh. 6. I have heard Mr. Shyam Singh Chauhan, learned counsel appearing on behalf of the defendant at length and gone through the judgments as well as pleadings carefully. 7. Plaintiff has appeared as PW-1. He has led his evidence by way of affidavit. According to him, he is owner of suit land comprised in Khasra No.87. Defendant is his real brother. The land of the defendant is comprised in Khasra No.88 just adjacent to the suit land. According to him, a passage leads from Khasra No.88 to the suit land, measuring - 4 - six metres in length and one metre in width, which is being used by him from the time of his ancestors. He has also stated that the passage is used for going to his fields and for bringing grass etc. He has further stated that the defendant threatened to block the passage on 3.10.2003. 8. PW-2, Roshni Devi has also tendered her evidence by way of evidence. She is Ward Member of Ward No.1, Gram Panchayat, Lohdar. She has stated that there exists a path over Khasra No.88 which leads to Khasra No.87. According to her, the defendant has threatened to block the passage on 5.10.2005 by raising construction thereon. 9. PW-3, Tara Singh is the Technical Assistant of Gram Panchayat, Lohdar. He has prepared spot map Ex.PW-3/A. He has shown passage over Khasra Nos. 88 and 87. PW-4, Bansi Ram has proved Ex.PW-4/A, i.e. the copy of compromise deed dated 19.7.1997. 10. Plaintiff, Babu Ram has again appeared as PW-5 after the case was remanded back by the learned Additional District Judge (Fast Track Court) to the trial Court. He has reiterated that to reach his land comprised in Khasra No.87, there exists a path over the land of the defendant comprised in Khasra No.88. He has also tendered in evidence Ex.P-1 and Ex.P-2. - 5 - 11. Defendant, Megh Singh has appeared as DW-1 and has led his evidence by filing an affidavit. He has deposed that he is owner in possession of land comprised in Khasra No.88. He has also deposed that no passage is leading through Khasra No.88 to Khasra No.87. He has admitted that if one has to go to Tika Sufan, then Khasra No.88 comes first and Khasra No.87 comes later. He has admitted that they have inherited the land comprised in Khasra Nos.87 and 88 from their father, Sunder. He has denied the suggestion that Panchayat has visited the spot on 5.10.2003. 12. DW-2, Bhagwan Singh has also led his evidence by filing an affidavit. According to him, there exists no passage over Khasra No.88 leading to Khasra No.87. He has denied the suggestion that Megh Singh, defendant has stacked construction material over Khasra No.88. DW-3, Chaman Lal has also filed affidavit in support of his examination-in-chief. He has prepared the site plan Ex.DW- 3/A. Megh Singh, defendant has also appeared as a witness after the remand of the case. He has reiterated the deposition which he has made earlier. He has deposed on oath that he is owner of Khasra No.88. He has further deposed that to go to Khasra No.87 there exists a passage through Khasra Nos.84 and 93. However, in cross- - 6 - examination, he has admitted that Khasra No.87 is the last number of Tika Sufan. He has also admitted that if one has to go to Khasra No.87 from the house of plaintiff, then Khasra No.88 comes first. He has admitted that Khasra Nos. 84 and 93 do not touch Khasra No.87. 13. What emerges from the evidence led by the parties is that there exists a passage which leads from Khasra No.88 to Khasra No.87. There is no alternative path to reach Khasra No.87. In fact, Khasra No.87 is the last number of Tika Sufan. Defendant himself has admitted that Khasra Nos.84 and 93 do not touch Khasra No.87. PWs.1 and 2 have categorically deposed that the path exists on Khasra No.88 which leads to Khasra No.87. This position is also supported by Ex.PW-3/A, which is duly proved by PW-3, Tara Singh. In fact, the dispute had earlier also arisen between the parties which was resolved as per Ex.PW-4/A and Mark-A, dated 19.7.1997. The defendant has also denied qua the dispute which was resolved by the Gram Panchayat after visiting the spot. The defendant has failed to prove that any alternative path is available to the plaintiff to reach Khasra No.87. 14. Accordingly, in view of the observations and discussions made hereinabove, there is no substantial question of law involved in this regular second appeal. Consequently, the same is dismissed being devoid of any - 7 - merit. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. August 30, 2011. (sck).