IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.602 of 2000 Decided on : 19th November, 2009 Swaroop Chand …Appellant. Versus Devinder Kumar …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Sunil Mohan Goel, Advocate. For the Respondent : Mr. Harish Behl, Advcoate. Surjit Singh, Judge (Oral) This Regular Second Appeal by the defendant is directed against the judgments and decrees of the two Courts below, whereby suit filed by respondent Devender Kumar, hereinafter referred to as plaintiff, has been decreed and appeal filed against the decree of the trial Court by appellant Swaroop Chand, hereinafter called defendant, has been dismissed, by the first Appellate Court. 2. Relevant facts may be noticed. Plaintiff Devender Kumar filed a suit for issuance of permanent prohibitory injunction restraining the defendant from obstructing, in any manner, the path leading to his house, standing on Khasra No.246, through Khasra Nos.233 and 244, situate in Mohal Khaliyar, Mandi Town. He also sought issuance of mandatory injunction directing the defendant to remove the obstruction Whether reporters of the local papers may be allowed to see the judgment? …2… already caused by him by raising a wall on a portion of the boundary of Khasra Nos.244 and 233. 3. Cause of action, as pleaded by the plaintiff, was that his grandmother was owner in possession of Khasra Nos.233, 244 and 246, aggregate area of which was 727.90 square metres. In the year 1972, vide deed Ext. PW1/B, she gifted Khasra No.246, measuring 412.12 square metres to the plaintiff, together with all rights, including right of passage. Thereafter she transferred Khasra Nos. 233 and 244 in favour of defendant, who is the son of the grandmother of the plaintiff. Plaintiff claimed that from the very beginning he had been passing through land comprised in Khasra Nos.233 and 244, along its southern boundary, for approaching the land comprised in Khasra No.246. In the month of August, 1990, defendant raised a wall obstructing the said passage. 4. Defendant-appellant denied that the plaintiff had any right to use any portion of Khasra No.244, as a passage, for approaching Khasra No.246. It was stated that there was a road adjoining Khasra No.246, belonging to the plaintiff and he had access to his property though that road. Some preliminary objections were also raised. 5. Trial Court concluded that though there was a motorable road adjoining Khasra No.246, plaintiff had the right to pass through Khasra No.244, in view of the evidence adduced by him, including the copies of entries in the record- of-rights. Appeal filed by the defendant-appellant before the …3… District Judge stands dismissed. Present appeal was admitted on the following substantial questions of law: 1) Whether the learned Courts below have erred in decreeing the suit of the plaintiff and dismissing the appeal of the appellant-defendant in view of the fact that admittedly there is motorable way/path to the land of the plaintiff and the plaintiff having failed to make specific and clear averments/pleadings with regard to easementry rights being claimed by him. 2) Whether the learned Appellate Court has erred in drawing adverse inference of the fact that the defendant did not enter the witness box. 3) Whether the learned Courts below have misread and misconstrued the documentary evidence on record. 6. Learned trial Court has observed that the passage claimed by the plaintiff is entered in the record-of-rights. View taken by the learned trial Court is not correct. Copy of the jamabandi, pertaining to Khasra Nos.233 and 244 is Ext. PW1/C. In this jamabandi, it is only Khasra No.233, which is recorded as passage. Khasra No.244, in its entirety, is shown to be a vacant piece of land and no portion of it is recorded as passage. Area of Khasra No.233 is 18.40 square metres while that of Khasra No.244 is 297.38 square metres. Also there is a copy of Aks Shajra Bandobast, Ext.PW3/A. This document …4… shows that Khasra No.233 is elongated in shape and lies parallel to Khasra No. 249, which admittedly belongs to the government and is in the shape of a road. In between Khasra Nos.233 and 246 there is Khasra No.244. This Khasra No.244 is with the defendant-appellant while Khasra No.246 is owned and possessed by the plaintiff. Below both Khasra Nos. 244 and 246 there is a road on government land, bearing Khasra No.249. It is admitted by the witness of the plaintiff, namely PW-2 Ashok Mahajan, who lived in the house of the plaintiff on Khasra No.246, as a tenant, that the building standing on Khasra No.246 is approachable through government land and that he had been taking his car to that building (on Khasra No.246) along that road. Aks Shajra Ext. PW3/A also shows that Khasra Nos.246 and 244 abut on the road bearing Khasra No.249. 7. Learned counsel for the plaintiff-respondent has drawn my attention to the gift deed, Ext. PW1/B, whereby Khasra No.246 was gifted to the plaintiff. Learned counsel submitted that alongwith Khasra No.246, plaintiff had been gifted the right of path over Khasra No.244. There is no reference to any path over Khasra No.244 in the gift deed. The only thing mentioned in the deed is that the property comprised in Khasra No.246 stands gifted to the plaintiff alongwith all rights regarding excavation of earth, stones and other objects affixed to the land, including right of passage. Passage to Khasra No.246 is initially through Khasra Nos.233 …5… and 249 and after that exclusively through Khasra No.249. It may be stated that as per Aks Shajra Ext. PW3/A, Khasra Nos.233 and 249 are parallel and adjoining each other, in the beginning to the point where the area of Khasra No.244 starts and beyond that towards Khasra No.244 and 246 passage is only through Khasra No.249. 8. In view of the above stated position, it is held that the first Appellate Court has fallen in error in not taking into account the fact that there is no recorded passage over Khasra No.244 and that there is independent approach to Khasra No.246 through Khasra Nos. 233 and 249. Substantial question of law No.1 is answered accordingly. 9. Further, in view of the above discussion, it is held that the judgments of the two Courts below are contrary to the facts and evidence on record as both the Courts below have misread and misconstrued the evidence, particularly the jamabandi, copy Ext. PW1/C and Aks Shajra Ext. PW3/A. Hence, substantial question of law No.3 is answered in favour of the defendant. 10. Learned first Appellant Court has also drawn adverse inference against the defendant for his not stepping into the witness box. The view taken by the learned first Appellate Court is illegal. Defendant is an old man. He has a son, who resides with him. He constituted his son as his attorney and he appeared in the witness box and testified on …6… behalf of the defendant. Hence, substantial question of law No.2 is also answered in favour of the defendant-appellant. For the foregoing reasons, appeal is accepted and judgments and decrees of the two Courts below are set aside. Suit of the plaintiff-respondent is dismissed. 19th November, 2009(ss) (Surjit Singh), J