IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 145/1997 Reserved on:6.4.2009 Decided on:27.5.2009 Pramod Dhawan and another. …Appellant. Versus Satya Nand. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. Romesh Verma, Advocate. For the Respondent : Mr. Ajay Kumar, Advocate. Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 9.6.1997 passed by the learned District Judge, Shimla in Civil Appeal No. 40-S/13 of 1993/1992. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for issuance of permanent prohibitory injunction restraining the appellants-defendants (hereinafter referred to as ’the defendants’ for convenience sake) from interfering in the land bearing Khasra No. 770 measuring 4-10 bighas situated in Mohal Gawas, Hadbast No.21, Tehsil Chirgaon, District Shimla. It has further 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 been alleged that the plaintiff is the owner in possession of the land in question. He has raised apple orchard on the suit land and the plants were 15 to 16 years of age at the time of the institution of the suit. The defendants without any right, title and interest tried to force their way through the suit land alongwith mules loaded with apple crop. The defendants contested the suit by filing written statement. The sum and substance of the case of the defendants is that they had been using the path/passage for the last more than 27 years openly without any interruption. The trial court decreed the suit on 14.8.1992. The defendants preferred an appeal before the learned District Judge, Shimla. The appeal was dismissed by the learned District Judge, Shimla on 9.6.1997. This Regular Second Appeal has been directed against the judgment and decree dated 9.6.1997. The same was admitted on the following substantial questions of law: 1. “Whether the right of use of path through the suit land has been proved by the appellants by way of prescription? 2. Whether the evidence produced by the respondent is beyond the scope of pleadings and the same could not be considered? 3. Whether there has been mis-reading and mis- appreciation of the oral and documentary evidence? 4. Whether the findings recorded against the appellants are vitiated by failure to exercise jurisdiction in accordance with law? 5. Whether in the absence of framing and determination of issues arising out of the pleadings of the parties, the courts below failed to exercise jurisdiction and injustice has been caused to the appellants? Mr. Romesh Verma, Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not 3 sustainable. He then argued that the learned courts below have misread the ocular as well as the documentary evidence led by the parties. Mr. Ajay Kumar, Advocate has supported the judgments and decrees passed by both the learned courts below. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. PW-1 has testified that he is owner of land bearing Khasra No. 770. He then stated that he developed a passage through Khasra No. 770 for approaching his godown where he stores the apple crop. The passage was developed by him 7-8 years back. He further stated that defendants had two alternative passages for approaching their apple orchard and for carrying the crop from their orchard. The version of PW-1 has been supported by PW-2 Karam Singh, PW-3 Ramesh, PW-4 Mohar Singh and PW-5 Amar Nath. They have deposed that the plaintiff has developed a passage about 7-8 years back. They have also deposed that two alternative passages, one along the house of Jogi and Ramu and the other by the side of the house of one Sh. Ramesh were available to the defendants. DW-1 Balbir Singh has deposed that he had been carrying the produce of the orchard for the last 23-24 years through the land of the plaintiff. He has denied the existence of any alternative passage. DW-2 Sarupa Nand, DW-3 Padam Dass and DW-4 Mohar Chand and DW-5 Niamu have supported the version of the defendants. They have filed affidavits in support of the application for temporary injunction moved by the plaintiff. They have stated in the affidavits that the age of the orchard 4 of the defendants was 18-19 years. However, in their statements before the Court they have given the age of the orchard 26-27 years. DW-2 has deposed that he had carried the apples from the orchard of the defendants to the road head about 6-7 years back. However, subsequently he stated that he visited the orchard of the defendants 18-20 years back. DW-5 Smt. Niamu in her cross-examination has deposed that there is passage along the houses of Ramu and Jogi for approaching the orchard of the defendants. Similarly, DW-2 Satya Nand has also not denied in his cross- examination that two alternative passages are available for carrying the produce from the orchard of the defendants. DW-7 Malak Ram has also admitted in his cross-examination that the passage passing through Khasra No. 770 was the private passage of the plaintiff for approaching his house and orchard. He has also testified that there were two separate passages for approaching the house of the defendants. AW-1 Molak Ram has also admitted in his cross-examination that the path shown in the red line in Ex.AW-1/K is the private path of the plaintiff, which leads to his godown and house. He has also deposed that two alternative paths are available to the defendants for approaching their orchard. The defendants have failed to prove that there is no alternative passage available to them for carrying their apple produce. It has been amply proved on record that the defendants have two alternative passages available to them, one along the house of Jogi and Ramu and the other by the side of the house of one Sh. Ramesh. The learned courts below have correctly appreciated the ocular as well as documentary evidence placed on record. The findings recorded by both the courts below are based on facts and there is no question of law much less substantial question of law involved in the present Regular Second Appeal. 5 Accordingly, there is no merit in the Regular Second Appeal and the same is dismissed. No costs. CMP No. 1065/2001: In view of the observations made hereinabove, the application for leading additional evidence is liable to be dismissed. There is sufficient evidence on record to adjudicate upon the Regular Second Appeal and no additional evidence is required. Moreover, the alternative path/passage is also available to the defendants. Accordingly, the application is rejected. 27.5. 2009 (Rajiv Sharma ), J. *awasthi*