RESERVED HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APEAL NO. 71 OF 2007 Ram Saran …. Plaintiff-Appellant Vs. Sukhbir & Others ….Defendants -Respondents 24.6.2008 Hon’ble Rajesh Tandon, J. Heard Shri M.S. Tyagi, counsel for the appellant and Shri S.P.S. Pawar, counsel for the respondents. 2. By the present second appeal filed under Section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 24.3.2007 passed by the Additional District Judge, Haridwar in civil appeal no. 4/2004. 3. Second appeal was admitted on the following substantial question of law :- “Whether the lower appellate court committed manifest error of law by reversing the finding of the trial court against the documentary evidence on record, regarding the Rasta land?” 4. Briefly stated, a suit was filed by the plaintiffs praying for permanent injunction restraining the defendants from interfering with the property shown by letters RSYS and SXSZ/ There is a common passage having a width of 8 feet towards the 2 Eastern side which connects to common ‘khadanjo’ of the village and which is shown by letters A.B.C.D.E.F.G. The plaintiffs are using the same as passage for the last 25 years. The plaintiffs have acquired the easementary right over the said passage. It has been stated that the defendants are trying to obstruct the passage by constructing a wall without having any right. The plaintiffs have prayed to the following effect:- “v- ;g fd fMxzh LFkkbZ fu"ks/kkKk cgd oknhx.k cj f[kykQ izfroknhx.k ua0 2 rk 5 bl vk’k; ls lkfnj Qjek;h tkos fd izfroknhx.k ua0 2 rk 6 iz’uxr jkLrs ftls ekufp= esa v{kj ,-ch- lh-Mh-bZ-,Q-th-,p-vkbZ- ls fn[kk;k x;k gS ls fdlh izdkj dk vojks/k dj mls cUn u djs vkSj djkos cfYd ;FkkfLFkfr dk;e j[ksa A c- ;g fd [kpkZ okn oknhx.k dks izfroknhx.k ua0 2 rk 6 ls fnyk;k tkos AÞ 5. The defendant no. 1 has filed a written statement denying the plaint averments. It has been stated that in khasra no. 216, there is a public pathway which has been declared by the Gram Sabha on 19.8.1993 and the same is in the use of the plaintiffs as well as the defendants on public at large. It has been stated that the defendant no. 1 has wrongly been impleaded by the plaintiffs. The suit is barred by Section 106 of Panchayati Raj Act as the defendant has not been served any notice. The passage in dispute belongs to Gram Sabha. In paragraph nos. 20 and 21, it has been stated as under:- “20- ;g fd fookfnr jkLrk lEifRr xzke lekt gS vkSj oknhx.k o vU; xjhc yksxksa dh vko’;drk dks ns[krs gq, xzke lHkk lEifRr [kljk la[;k 216 esa ls vke turk ds fy;s jkLrk ctfj;s izLrko xzke lHkk fnukafdr 19-8-93 o Lohd`fr ijxuk vf/kdkjh yDlj ds vk/kkj ij oknhx.k o vU; O;fDr;ksa ds fy;s jkLrk vko’;drkuqlkj fn;k x;k gS A” 3 6. The defendant nos. 2 to 6 have filed their written statement denying the plaint averments. It has been stated that the plaintiffs are not the owners in possession of the land in dispute which has been shown by letters RLIS and VXZ. The plaintiffs have not shown any basis on which there are claiming the ownership of the property in dispute. It has been denied that the passage in dispute is the only passage for the plaintiffs. It has further been denied that the plaintiffs have attained any easementary right over the passage in dispute. The disputed passage was never the property of Gram Sabha and, therefore, the Gram Sabha had no right to pass any resolution with regard to said passage for using by the public at large. In paragraph no. 7 of the written statement, it has been stated as under:- “;g fd dfFkr jkLrk dHkh xkao lHkk dh lEifRr ugha jgh bl dkj.k xkao lHkk dks mDr lEifRr dh ckcr dksbZ vf/kdkj fdlh izLrko djus ;k nq:Lrh dkxtkr eky djkus dk ugha jgk cfYd xkao lHkk iz/kku us oknhx.k ls lkt djds mDr lEifRr oknh dks nh tks drbZ cscqfu;knh ,oa eux<ar rF;ksa ij vk/kkfjr gS A” 7. It has been submitted that the plaintiffs have not impleaded the Gram Sabha as party. The suit is barred by Section 106 of Panchayati Raj Act. Suit is also barred by Order 1 Rule 8 of Code of Civil Procedure and Sections 34, 38 and 41 of the Specific Reliefs Act. The suit is liable to be dismissed. 8. On the pleadings of the parties, the trial court has framed the following issues:- 1- D;k izfroknh ua0 2 rk 6 xzke lekt dh Hkwfe [kljk uEcj 216 ij dCtk djus ds fy, okn&Ik= esa layXu uD’kk utjh esa fn[kk;s x;s 4 fcUnq ,Q-,Dl ij nhokj cukdj iz’uxr jkLrs dks voS/k :Ik ls cUn djuk pkgrs gSa ftldk mUgsa dksbZ vf/kdkj izkIr ugha gS\ ;fn gkWa rks izHkko\ 2- D;k fookfnr jkLrs dk iz;ksx fuckZ/k :Ik ls lkoZtfud :Ik ls oknh rFkk xzke ds vU; yksx fujUrj iz;ksx djrs pys vkrs gSa\ ;fn gka rks izHkko\ 3- D;k okn dqla;kstu ds nks"k ls nwf"kr gS tSlk fd izfroknh la[;k 1 us tckc nkos ds iSjk 18 esa dFku fd;k x;k gS\ 4- D;k oknhx.k o buds vkokl ds vU; O;fDr if’pe dh vksj eqM+dj tks jkLrk nf{k.k dh vksj [kljk uEcj 168 ls gksrs gq, 169 esa ls gksrs gq, vius edku ls pys vkrs gSa \ 5- D;k fookfnr jkLrs dk jSosU;w fjdkMZ esa dksbZ bUnzkt pyk vkrk gS\ ;fn gkWa rks mldk izHkko\ 6- D;k oknh }kjk izfroknh la[;k 1 dks /kkjk 106 iapk;r jkt ,DV ds rgr uksfVl ugha fn;k ftl dkj.k okn /kkjk 106 iapk;r jkt ,DV ls ckf/kr gS\ 7- D;k okn oknh vkns’k 1 fu;e 8 ls ckf/kr gS\ 8- D;k okn oknh /kkjk 34]38 o 41 fof’k"V lgk;rk vuqrks"k vf/kfu;e ls ckf/kr gS\ 9- D;k okn esa vko’;d Ik{kdkj u cuk;s tkus dk nks"k gS\ 10- D;k okn dk ewY;kadu de o xyr fd;k x;k gS vkSj vnk djnk U;k;’kqYd ukdkQh gS\ 11- D;k fcUnq ds-,e-ij okn nk;j djus ls dkQh iwoZ ls gh iq[rk nhokj cuh pyh vkrh gS ftl dkj.k okn oknh buQzDpqvl gks pqdk gS\ 12- vuqrks"k \ 9. The plaintiffs have examined P.W.1 Ram Saran and P.W.2 Yashpal. Towards the documentary evidence, the plaintiffs have produced two documents per list 51 ga1. 10. The defendant nos. 2 to 6 have examined D.W. 1 Mahipal, D.W.2 Ram Kishan, D.W. 3 Nirbhay Singh and D.W.4 Rajesh Kumar Lekhpal. Towards the documentary evidence, the defendants have produced 4 documents per list 30 ga 1. 5 11. While deciding issue no. 1 as to whether the defendant nos. 2 to 6 want to grab the property of Gram Sabha by putting wall without having any right, the trial court has recorded the finding that the passage in dispute belongs to Gram Sabha and the defendants have not claimed the ownership right over the property in dispute, therefore, the defendants have no right to block the passage by putting wall over it. 12. While deciding issue no. 2 with regard to use of passage in dispute as common passage by the plaintiffs and other villagers, the trial court has taken into consideration paper nos. 52 ga 1, 53 ga 1, 43 ga 1, 43 ga 2, 43 ga 3 and 43 ga 4 which shows that the passage in dispute is common passage. The trial court has come to the conclusion that the passage in dispute is being used by the plaintiffs and other villagers as common passage. 13. While deciding issue no. 3 with regard to impleadment of Gram Sabha as party, the trial court has recorded the finding that the Gram Sabha has rightly been impleaded as party because the resolution of common passage has been passed by the Gram Sabha. 14. While deciding issue no. 4 as to whether the plaintiffs use the passage in dispute for approaching their houses, the trial court has recorded the finding that the plaintiffs are using the passage in dispute for approaching their houses. 15. So far as issue no. 5 with regard to entry of the disputed passage in revenue record is concerned, the trial court has recorded the finding that it is not necessary that every passage is recorded in the revenue record. The trial court has further 6 recorded the finding that the defendants have failed to prove that there is no disputed passage as claimed by the plaintiffs. 16. While deciding issue no. 6 as to whether the suit is barred by Section 106 of the Panchayati Raj Act, the trial court has come to the conclusion that the suit is not barred by Section 106 of the Panchayati Raj Act. 17. While deciding issue no. 7 as to whether the suit is barred by Order 1 Rule 8 of the Code of Civil Procedure, the trial court has decided the issue in favour of the plaintiffs that the suit is not barred by Order 1 Rule 8 of the Code of Civil Procedure. 18. While deciding issue no. 8 as to whether the suit is barred by Sections 34, 38 and 41 of Specific Reliefs Act, the trial court has recorded the finding that the defendants have failed to prove that the suit is barred by Sections 34, 38 and 41 of Specific Reliefs Act. 19. While deciding issue no. 11 as to whether there is a pucca wall on the passage in dispute before filing of the suit, the trial court has recorded the finding that it has been proved that the plaintiffs and other villagers were using the passage in dispute, therefore, there might not be a wall on the passage in dispute. 20. On the basis of the aforesaid, the trial court has decreed the suit of the plaintiffs. 21. Aggrieved by the judgment and decree passed by the trial court, the defendants went in appeal. The appellate court has allowed the appeal and has recorded the findings on the basis of revenue records that the same is not in the use of public at 7 large. The appellate court has recorded the findings to the following effect:- “voj U;k;ky; ds }kjk viuk fu.kZ; laHkkoukvksa ds vk/kkj ij ikfjr fd;k x;k gS D;ksafd fook|d la[;k 1 ds fuLrkj.k esa voj U;k;ky; ds }kjk viuk ;g laHkkouk trkbZ xbZ gS fd ^^iwjc fn’kk ea tkus ds fy, oknhx.k@izR;FkhZx.k iz’uxr jkLrs dk bLrseky djrs gksaxs ;g fn[kkbZ iM+rk gS AÞ vke ukxfjd ds vf/kdkj laHkkoukvksa ds vk/kkj ij fuf’pr ugha fd;s tkrs gSa A voj U;k;ky; ds }kjk viuk fu"d"kZ laHkkoukvksa ds vk/kkj ij ugha] vfirq lcwrksa ds vk/kkj ij fn;k tkuk pkfg, Fkk A fook|d la[;k 1 ds tfj;s ;g r; fd;k tkuk pkfg, Fkk fd D;k vihykFkhZx.k@izfroknhx.k fookfnr jkLrs dks nhokj cuk dj cUn djuk pkgrs gSa A bl laca/k esa voj U;k;ky; ds }kjk viuk dksbZ fu"d"kZ vFkok fo’ys"k.k ugha fd;k x;k gS vkSj blds fcuk fook|d la[;k 1 dk fuLrkj.k djrs gq, ;g fu"d"kZ fudkyk x;k fd izfroknhx.k@vihykFkhZx.k dks fookfnr jkLrs dks cUn djus dk dksbZ vf/kdkj izkIr ugha gS AÞ ß i=koyh ij nLrkosth ,oa ekSf[kd lk{; ls ;g Li"V fn[kkbZ nsrk gS fd izR;FkhZx.k@oknhx.k ds nf{k.k dh vksj ,d jkLrk gS tks fd eq[; jkLrk gS vkSj ;gh jkLrk fQj pydj if’pe dh vksj tkrk gS AÞ ßdeh’kuj vk[;k ds vuqlkj fookfnr LFky ij vihykFkhZx.k@izfroknhx.k dkfct fn[kkbZ nsrs gSa vkSj ml LFky ij dksbZ jkLrk bl rjg dk ugha gS ftldks vjlk djhc 20 o"kksZa ls crkSj lq[kkf/kdkj ds izR;FkhZx.k@oknhx.k bLrseky djrs pys vk jgs gSa AÞ 22. In view of the aforesaid, right of easement has been disbelieved by the appellate court. The appellate court has recorded the finding of fact. 23. In view of the aforesaid, the substantial question of law involved in the second appeal is decided against the appellant. 8 24. In Kamti Devi (Smt. ) and Anr. V. Poshi Ram (2001) 5 SCC 311, the Court came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding. 25. In Thiagaraja v. Sri Venugopalaswanmy B. Koil (2004) 5 SCC 762, it has been held that the High Court in its jurisdiction under Section 100 of C.P.C. was not justified in interfering with the findings of fact. The court observed that to say the least the approach of the High Court was not proper. T is the obligation of the Courts of law to further clear the intendment of the legislature and not frustrate it by excluding the same. The Apex Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. 26. In the case of Madhvan Nair v. Bhaskar Pillai (2005) 10 SCC 553, the Apex Court has observed that the High Court was not justified in interfering with the concurrent findings of fact. The Apex Court has observed that it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself willl not be a ground for the High Court to upset the same. 27. In the case of Harjeet Singh v. Amrik Singh (2005) 12 SCC 270, the Apex Cout has held that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. 9 28. In H.P. Pyarejan v. Dasappa 2006 AIR SCW 715, the Apex Court has observed as under:- “Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere witht the judgments of the courts below is confined to hearing on substantial question of law. Interference with findings of fact by the High Court is not warranted if it involves re-appreciation of evidence.” 29. In Commissioner Hindu Religious & Charitable Endowments v. P. Shanmugama and others (2005) 9 SCC 232, it has been held as under :- “14. In our view, High Court has no jurisdiction in the second appeal to interfere with the finding of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of fact as it has done.” 30. In view of the aforesaid, I find no merit in the second appeal. Second appeal, therefore, lacks merit and is liable to be dismissed. 31. Consequently, second appeal is dismissed. No order as to costs. (Rajesh Tandon, J.) 24.6.2008 Avneet