IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 498 of 2000. Decided on : 27.5.2010. Tara Singh …Appellant . Versus Bhagat Singh …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Mr. Ramakant Sharma , Advocate. For the respondent : Mr. G.D.Verma, Sr. Advocate with Mr. B.C.Verma, Advocate. Kuldip Singh , Judge (Oral) The plaintiff has filed the second appeal against judgment, decree dated 30.8.2000 passed by the learned Additional District Judge , Solan in Civil Appeal No. 21-NL/13 of 1999. 2. The facts, in brief, are that appellant had filed a suit for permanent prohibitory and mandatory injunction on the ground that parties are brothers, they and their brothers were previously owning joint holding land measuring 44 bighas 17 biswas. A partition took place between them in the year 1993 and during the partition proceedings their shares were partitioned through the process of law. It has been alleged that while partitioning the joint land the disputed path measuring 2 biswas comprised in Khasra No. 335/51/9 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 village Abhipur, H.B. No. 2, Pargana Gullerwala, Tehsil Nalagarh, District Solan as per jamabandi for the year 1992-93 was kept joint in view of the continuous user and enjoyment of the same as path since time immemorial. It has been alleged that the path in question is only path available to the land and abadi of the appellant, the respondent has no exclusive right over the path. The respondents in August, 1995 had caused interference over the path so as to block the passage. In these circumstances, the suit was filed. 3. The respondent contested the suit in which he took several preliminary objections regarding maintainability, locus standi, valuation of the plaint. On merits, he admitted that Khasra No. 335/51/9 is a path. It has been alleged that his brother Durga Singh got another path bearing Khasra No. 51/16 measuring 0-1 biswa during partition proceedings which exclusively belonged to them. The respondent and his brother allowed the appellant to pass through the aforesaid path as licencee. The respondent and his brother has right to revoke the licence. The appellant with malafide intention wants to make out a new case of alleged path. It has been denied that respondent has blocked the passage. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the disputed path was reserved for the common user of the parties as alleged ? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled for the relief of injunction ? OPP 3. Whether the suit is not maintainable and competent in the present form? OPD 3 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the plaint is not properly verified and as such liable to be rejected? OPD 6. Whether the plaintiff has no cause of action ? OPD 7. Whether the suit is bad for non-joinder of necessary parties? OPD 8. Whether the defendant is entitled for special cost under Section 35-A C.P.C. ? OPD 9. Relief. 5. The issues No.1 and 2 were answered in affirmative and issues No. 3 to 8 in negative and the suit was decreed by the learned Sub Judge on 13.5.1999. The respondent filed appeal against judgment, decree dated 13.5.1999. The learned lower appellate court while dismissing the appeal on 30.8.2000 has also held that tatima qua Khata No. 17 Khatauni No. 25 Khasra No. 335/51/9 situated at Mauja Abipur, Pargana Gullarwala, Tehsil Nalagarh prepared at the time of final partition and prior to instrument of partition prepared in case No. 18 of 1986 titled as Biru Vs. Chuhar Singh etc. shall prevail unless changed by the Appellate Authority or the Revisional Authority under H.P.Land Revenue Act. The plaintiff has assailed the judgment, decree dated 30.8.2000 by way of second appeal which has been admitted on the following substantial questions of law :- 1. Whether the learned lower appellate Court is right in modifying the decree while coming to the conclusion that the judgment and decree passed by the learned trial Court is correct? 2. Whether the learned lower appellate Court is right in not taking into consideration the admitted position, i.e. admission of the 4 defendant with respect to the existence of path over Khasra Number 335/51/9 ? 3. Whether learned lower appellate Court is right in modifying the decree by granting a relief to the defendant which was neither the case pleaded by the defendant nor proved, i.e. with respect to the contradictory tatimas especially when the defendant had admitted in para-4 of the written statement regarding existence of a joint path which leads to the abadi of the appellant ? 4. Whether the learned lower appellate Court is right in not taking into consideration Ext.PW-1/B the jamabandi for the year 1992-93 on the basis of which the suit was filed by the plaintiff. 6. I have heard Mr. Ramakant Sharma, Advocate, learned counsel for the appellant and Mr. G.D.Verma, Senior Advocate, learned counsel for the respondent and have also gone through the record. The learned counsel for the respondent has taken preliminary objection regarding maintainability of the appeal on the ground that the decree passed by the learned lower appellate court is decree of dismissal affirming judgment and decree passed by the trial Court, the appeal by appellant/plaintiff in these circumstances is not maintainable. On merits, he has submitted that in second appeal re-appreciation of the evidence is not permissible, the learned lower appellate Court has recorded a finding of fact after appreciating the evidence on record and for this reason also no appeal is competent against the finding of fact. The learned counsel for the appellant has submitted that the lower appellate Court while dismissing the appeal has also modified the judgment, decree of trial Court, therefore, appeal is maintainable. He has submitted that khasra No. 335/51/9 has been recorded in Ex.PW-1/B jamabandi for the year 1992-93 and 5 in these circumstances, the learned Additional District Judge has erred in observing that tatima prepared at the time of final partition and prior to instrument of partition prepared in case No. 18 of 1986 shall prevail unless changed by the Appellate Authority or the Revisional Authority under H.P. Land Revenue Act. 7. The substantial questions of law No. 1 to 4 are inter- connected, therefore, all of them are being taken up collectively for disposal. The respondent has not filed any cross-objections or appeal against judgment, decree dated 30.8.2000 passed by the learned Additional District Judge, Solan in Civil Appeal No. 21-NL/13 of 1999. In these circumstances, the impugned judgment, decree has attained finality against respondent. The learned counsel for the respondent has relied Smt. Ganga Bai Vs. Vijay Kumar and others AIR 1974 S.C. 1126 on the ground that since the lower appellate Court has dismissed the appeal in favour of the appellant, therefore, second appeal is not maintainable. The learned counsel for the respondent has referred Banarsi and others Vs. Ram Phal, AIR 2003 S.C. 1989 and relied para 8 of the judgment which is as follows:- “Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. See Phoolchand and another v. Gopal Lal, 1967 (3) SCR 153 ; Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties (P) Ltd., 1970 (3) SCC 573; Smt. Ganga Bai 6 v. Vijay Kumar and others (1974) 2 SCC 393. No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment.” In Banarsi (supra), it has been held by the Supreme Court that Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal but none of the provisions enumerates the person who can file an appeal. It has been held that it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. 8. The learned lower appellate court has passed the following decree:- “In view of my findings on the point No.1 above, the appeal is dismissed and judgment and decree of the learned trial Court are affirmed. I also hold that the tatima qua Khata No.17 Khatauni No. 25 Khasra No. 335/51/9 situated in Mauja Abipur Pargana Gullarwala Tehsil Nalagarh, District Solan, H.P. prepared at the time of final partition and prior to instrument of partition prepared in partition case No. 18 of 1986 titled as Biru Vs. Chuhar Singh etc. shall prevail unless changed by the Appellate Authority or the Revisional Authority under the Himachal Pradesh Land Revenue Act. However, in the peculiar circumstances of the case the parties are left to bear their own costs. “ The learned lower Appellate Court has used expression that the appeal is dismissed but in fact the learned lower appellate court has 7 modified the decree passed by the trial court by holding that tatima qua Khata No.17 Khatauni No. 25 Khasra No. 335/51/9 situated in Mauja Abipur Pargana Gullarwala Tehsil Nalagarh, District Solan, H.P. prepared at the time of final partition and prior to instrument of partition prepared in partition case No. 18 of 1986 titled as Biru Vs. Chuhar Singh etc. shall prevail unless changed by the Appellate Authority or the Revisional Authority. The substance of the decree is to be seen and not the form, merely the learned lower appellate Court has used the expression ‘dismissed’ it does not mean that the lower appellate court has not modified the decree of the trial Court. The appellant is aggrieved by the modification made by the learned lower appellate Court, therefore, the appeal filed by the appellant is maintainable and the preliminary objection raised by the learned counsel for the respondent is rejected. 9. The appellant has filed the suit regarding khasra No. 335/51/9 measuring 2 biswas as per jamabandi for the year 1992-93. The learned lower appellate Court in para 23 of the impugned judgment has rejected the contention of the respondent herein that separate tatima and contradictory tatima qua Khasra No. 335/51/9 of suit land was prepared at the time of mutation proceedings of the partition. A submission was raised before the learned lower appellate Court that tatima prepared at the time of instrument of partition qua Khasra No. 335/51/9 shall prevail. It was observed by the learned lower Appellate Court in the impugned judgment that all partition papers are prepared prior to the acceptance of final partition proceedings and thereafter the instrument of partition is prepared and tatima prepared at the time 8 of instrument of partition are final unless the tatima are changed by the Appellate Authority or the Revisional Authority as per the H.P. Land Revenue Act. In the teeth of these observations and findings, the learned lower Appellate Court has erred in holding in the operative part of impugned judgment that tatima qua Khata No. 17 Khatauni No. 25 Khasra No. 335/51/9 situated in Mauja Abipur Pargana Gullarwala Tehsil Nalagarh, District Solan prepared at the time of final partition and prior to instrument of partition prepared in case No. 18 of 1986 titled as Biru Vs. Chuhar Singh etc. shall prevail unless changed by the Appellate Authority or the Revisional Authority under the H.P. Land Revenue Act. 10. The Khasra No. 335/51/9 has been fully described in jamabandi for the year 1992-93 Ex.PW-1/B and in these circumstances, the learned Additional District Judge has erred in falling back on tatima of the partition proceedings. The suit was filed on the basis of jamabandi Ex.PW-1/B. Therefore, it was not necessary to take the help of tatima of partition proceedings for identification of the land. The learned Additional District Judge has erred in modifying the impugned judgment, decree by taking the help of tatima of partition proceedings. In these circumstances, the substantial questions of law No. 1 to 4 are decided in favour of the appellant. The impugned judgment, decree are liable to be modified. 11. No other point was urged. 12. The result of the above discussion, the appeal is allowed, judgment, decree dated 30.8.2000 passed by the learned Additional District Judge, Solan in Civil Appeal No. 21-NL/13 of 1999 9 is set-aside and the judgment, decree passed by the learned trial Court is restored with no order as to costs. ( Kuldip Singh ) Judge. May 27, 2010. (GR)