IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 439 of 2010. Reserved on: 04.05.2011. Decided on: 13.05.2011. _____________________________________________________ Karam Chand. …Appellant. -Versus- Rattan Singh. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant. : Mr. R.S. Kanwar, Advocate. For the respondent. : Mr. Suneet Goel, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 28.04.2010, passed by the learned Additional District Judge, Fast Track Court, Hamirpur, H.P. in Civil Appeal No. 30 of 2009. 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 filed a suit for permanent prohibitory injunction for restraining the defendant from interfering in the ownership and possession of the plaintiff over the suit land comprised in Khata No. 40 min, Khatoni No. 41 min, Khasra No. 123, measuring 1 Kanal 8 Marlas, situated in Tika Jharlog Uparla, Tehsil Bhoranj, District Hamirpur and for possession by way of demolition in case the defendant succeeds in raising construction or creating any passage over the 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - suit land. Precisely, the case of the petitioner was that he was owner in possession of the suit land and the defendant was stranger, who had no concern with the suit land. The defendant was threatening to create a passage over the suit land without any right to do so and despite requests. 3. The Civil Suit was opposed by the defendant by filing a written statement. It was asserted that there existed a passage over the edges of the suit land, which passage was being used by the defendant and other villagers by way of custom. There was no passage available to the defendant and other villagers for going to the water source. The trial court framed the issues on 08.05.2006. The trial Court decreed the suit for permanent prohibitory injunction for restraining the defendant from interfering with the suit land in any manner whatsoever. The defendant preferred an appeal before the learned Additional District Judge, Fast Track Court. The same was dismissed on 28.04.2010. Hence, this Regular Second Appeal against the judgment and decree dated 28.04.2010. 4. This Regular Second Appeal was admitted on the following substantial questions of law: “1. Whether the Ld. Courts below are right in not considering the admissions made by PW-1 and PW-2? 2. Whether the impugned judgment and decree is a result of misreading, misinterpretation as well as mis-appreciation of exhibit DW-3/A spot report dt. 15-02-2003 and exhibit EW-3/B copy - 3 - of order of Gram Panchayat dt. 26-03-2003 and site plant exhibit DW-2/A? 3. Whether the Ld. Courts below are right in not considering the admission of custom by the PW- 1 and PW-2 with respect to user of edges of the fields by the villagers including the appellant.” 5. Mr. R.S. Kanwar, learned counsel for the appellant has vehemently argued that both the Courts below have misread the oral as well as documentary evidence. 6. Mr. Suneet Goel, learned counsel for the respondent has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 9. Plaintiff has appeared as PW-1. According to him, he was owner in possession of Khasra No. 123. He has constructed a house. A passage leads to the said house from Khasra No. 187/1, but the said passage was obstructed by the defendant. It is evident from the evidence led by the parties that the plaintiff is owner in possession of the suit land in question. Rather, the defendant has admitted that the plaintiff was having a house, which was 40 years’ old and a new house was constructed by the plaintiff in the year 2003. It is evident from the copy of Jamabandi for the year 1997-98 that the plaintiff was recorded to be the owner in possession of the suit land. Now, the Court will decide - 4 - whether there exists a passage over the edge (maind) on the suit land. In order to prove this issue, Karam Chand has appeared as DW-1. He deposed that the passage was in existence since the time of his ancestors over the suit land. This passage was 10-12 feet long. He stated in cross-examination that the passage is on the edge. It was 12 feet long and 2-3 feet wide. He also stated that there was a retaining Wall belonging to PWD between the house of the plaintiff and the road. The retaining Wall was situated adjacent to the house and the gate was constructed near the retaining Wall. Their was no staircase on the retaining Wall, but a passage was existing for long. The edge was on Khasra No. 121. He has obtained the demarcation, in which, the passage was found over the edge of Khasra No. 121. However, he has not placed on record the copy of the demarcation report. In view of this, the Courts below have rightly drawn the adverse inference against the defendant, since he has not placed the demarcation report on record. 10. Vijay Kumar (DW-2) was examined by the defendant to prove the existence of passage. He has prepared the site plan. He also deposed that the demarcations were obtained by the plaintiff. The passage was 1-2 Karam wide. According to him, the passage was existing over Khasra No. 123 and the said passage was 3 feet wide. The house of the plaintiff was on a lower level than the road. A retaining Wall has been constructed by PWD adjacent to the house. The said retaining Wall was 7-8 feet high. DW-2 has also admitted the existence of the retaining Wall. He has not placed on record copy of the demarcation report to establish that the passage was existing on the corner of Khasra - 5 - No. 123. It is also evident from the evidence led by the parties that the passage was existing over the retaining Wall and not on the suit land. The report Ex. DW-3/A is silent on the fact whether the passage was in existence over the suit land or not. The defendant has also failed to prove that there is custom of using the edges of the field in the village. It is settled law that the custom has to be pleaded and proved in accordance with law. The defendant has not examined any other co-villagers to establish custom. Defendant has also not examined any member of the Panchayat to prove Ex.DW-3/A and Ex. DW-3/B. The defendant has neither proved wazub-ul-arj nor the demarcation report, as mentioned above to prove that ‘maind’ of the suit land was used as a passage. The defendant has miserably failed to prove that the passage was existing on the suit land. The Courts below have rightly appreciated the oral as well as documentary evidence. 11. Accordingly, in view of the observations/discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge May 13, 2011. (bhupender) - 6 -