IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 576 of 2006 Decided on: September 21, 2010 Sh. Sunil Kumar and others. …..Appellants. VERSUS Sh. Rama Nand and others. …..Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1. For the Appellants : Mr. Ramakant Sharma, Adv. For the Respondents : Mr. Bhupinder Singh Kanwar, Adv. Surjit Singh, Judge (Oral) This appeal by the appellants-defendants against the judgment and decree, dated 21.9.2006 of the learned first Appellate Court has been filed for restoration of the judgment and decree of trial Court, by which the suit of the respondents-plaintiffs for permanent prohibitory injunction and also for mandatory injunction had been dismissed. Appeal was admitted on the following substantial questions of law, vide order dated 4.7.2008:- 1. Whether the learned lower appellate Court being last Court of fact is right in not considering the entire oral as well as documentary evidence as required of it in view of the law laid down by the Apex Court reported in 2000 (5) SCC 652. 1 Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. Whether the learned lower appellate Court is right in not drawing an adverse inference against the respondent/plaintiff who failed to step into the witness box in view of the provisions of Section 114 (g) of the Indian Evidence Act. 3. Whether the learned lower appellate Court is right in not considering the document Exhibit DW5/A as well as the admissions made by PW1 to PW3 with respect to the existence of path as well as user thereof. 4. whether the learned lower appellate Court is right in not properly considering the law laid down and reported in 1991 (2) SLC page 94. 5. whether the learned lower appellate Court is right in not considering the documents Exhibit DW2/A order of S.D.M. Chopal, Exhibit DW2/B compliance report Exhibit DW2/C, G and DW4/A the reports of Naib Tehsildar. 2. Suit was filed by the plaintiffs for issuance of permanent prohibitory injunction, restraining the defendants- appellants from causing any interference in plaintiffs land, bearing Khasra Nos.755 and 756, alleging that they were the owners in possession of said khasra numbers, but the defendants-appellants without any right, title or interest had been threatening to interfere in their possession. 3. Defendants claimed right of passage through aforesaid two khasra numbers. It was stated that they had customary right to pass through the land of respondents-plaintiffs to reach their own land, bearing Khasra No.780/2. Trial Court dismissed the suit, holding that the appellants-defendants had customary right to approach their land bearing Khasra No.780/2, through the suit land …3… and that the site and location of the said path was given in Tatima Ext.DW.5/A and was marked by letters A to A in the said Tatima. 4. Appeal was carried against the judgment and decree of the 1st Appellate Court by the respondents-defendants. Learned District Judge has accepted the appeal by impugned judgment and decree. Learned District judge has not appreciated the evidence, nor returned any finding, whether the appellants-defendants have any right of passage through the suit land, but observed that there is no evidence on record indicating the particular portion of the suit land, which is claimed as passage and therefore, the decree, if passed would be inexecutable. It has also been observed that if the defendants are held to have right of passage through the suit land, they would be passing through every portion of the suit land, thereby rendering the user of the suit land by the respondents-plaintiffs impossible. . I have heard learned counsel for the parties and gone through the record. 4. Learned first Appellate Court has observed that only a line in pencil has been drawn in the map Ext.DW.5/A. This is not correct. Of course, a line has been drawn in pencil, but that line is parallel to the boundary of one of the two khasra numbers, i.e. 756, which fact suggests that the portion between the boundary line of Khasra No.756 and the line drawn in pencil is the site of the passage. Learned counsel representing the respondents-plaintiffs submits that Tatima has not been prepared by an authorised officer of Revenue Department, but only by a Patwari. …4… 5. This aspect is required to be considered by the 1st Appellate Court, which is the final Court of fact. The first Appellate Court, as already noticed has not taken into consideration the entire evidence on record including ‘Wazib Ul Araz” and as oral evidence adduced by the parties, but has accepted the appeal just with the observations that description and location of the path is not indicated. 6. For the foregoing reasons, the impugned judgment and decree is set aside and the matter is remanded to the first Appellate Court with the direction to decide the appeal afresh and to base its findings on appreciation of the entire relevant evidence adduced by the parties. Parties are directed to appear before the first Appellate Court on 29.10.2010. ( Surjit Singh ) September 21, 2010 (rkv) Judge. …5…