IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 155 of 2007. Reserved on: 07.07.2011. Decided on: 29.07.2011. _______________________________________________________________ Mata Bagla Mukhi Sahayak Sabha & others. … Appellants. Versus Rameshwar Dayal Sharma and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. Anuj Nag, Advocate. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 11.1.2007 passed by the learned Additional District Judge (I), Kangra at Dharamshala in Civil Appeal No.180-N/2005. 2. Material facts necessary for the adjudication of this regular second appeal are that the appellants/plaintiffs (hereinafter referred to as ”the plaintiffs” for convenience sake) have instituted a suit against the respondents/ 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - defendants (hereinafter referred to as “the defendants” for convenience sake) for permanent prohibitory injunction with respect to user of property denoted by ‘ABCD’ and passage ‘X to X’ shown in the site plan situate in Kotla Abadi Deh within Lal Lakir, on the allegations that ‘ABCD’ courtyard and the passage ‘X to X’ shown in the site plan is common property of the parties to the suit. According to them, there is a Dharamshala of Mata Bagla Mukhi Sahayak Sabha which is used by all those persons who come to pay their obeisance to Mata Bagla Mukhi. The passage X to X is used by all those persons who visit the temple to go from main road to Dharamshala and it also passes through the courtyard ‘ABCD’. According to them, the defendants have started blocking the passage from main road and have constructed chhajja from the entrance point X to X in order to construct some shops over the same. It was in these circumstances, the present suit came to be filed for permanent prohibitory and mandatory injunction. 3. The suit was contested by the defendants. According to the defendants, the plaintiffs were not at all owners of the suit property. The passage ‘X to X’ was not in existence on the spot. They have denied the allegations of the plaintiffs regarding the courtyard ‘ABCD’ being common property of the parties to the suit. According to them, the path of the plaintiffs is from the ‘PROL’ gate of late Bhagwan Dass. - 3 - 4. Replication was filed by the plaintiffs. The learned trial Court framed the issues on 23.11.1994. The learned trial Court dismissed the suit on 31.8.2005. Thereafter the plaintiffs filed an appeal before the learned Additional District Judge (I), Kangra at Dharamshala. He also dismissed the same on 11.1.2007. Hence, this regular second appeal. 5. The appeal was admitted on the following substantial question of law on 5.5.2008:- “Whether there has been misreading of the documents Ext. PW2/A and Ext.PW7/A by both the Courts below?” 6. Mr. Ramakant Sharma, learned counsel for the plaintiffs has strenuously argued that both the Courts below have misread the documents Ext.PW-2/A and Ex.PW-7/A. According to him, the only passage used by the plaintiffs was ‘X to X’, which passes through courtyard ‘ABCD’. He has also relied upon the report furnished by the Local Commissioner, appointed by this Court. 7. Mr. Anuj Nag, learned counsel for the defendants has vehemently argued that the present suit was not maintainable. He has also argued that both the Courts below have correctly appreciated the documents Ex.PW-2/A and Ex.PW-7/A. 8. I have heard learned counsel for the parties and gone through the pleadings carefully. - 4 - 9. Plaintiffs have purchased the suit property vide sale deed Ex.PW-2/A, dated 24.12.1981. 10. PW-1, Jagdish Kumar is the Special Power of Attorney of the plaintiffs. According to him, the property has been purchased from the mother of Vijay Kaishth, namely, Chhanno Devi on 24.12.1981. The sale deed was for the consideration of ` 40,000/-. The sale deed was executed in the name of Mata Bagla Mukhi. The measurement of the courtyard was 14 metres on one side, 9 metres from the other side, 12 metres from the third side and 7 metres from the fourth side. There is also a courtyard. Through this courtyard, the people used to visit Dharamshala. On 5.6.1994, the defendants stopped the path. According to him, there was no other path leading to the temple. 11. PW-2 Vinay Kumar Kaishth has deposed that Smt. Chhanno Devi sold the suit property on 24.5.1981 for the sale consideration of ` 40,000/-. He has stated that the courtyard and path was shown in the site plan mark Y which are used by both the parties to the suit. He has categorically deposed that there was no other path except the path ‘X to X’ to the temple. 12. PW-3 Shashi Kant Bhatnagar has deposed that the path leading to the temple was used by the plaintiffs and defendants jointly. The defendants have constructed shops on the path and chhajja has also been raised. PW-4, Chattro Ram has also supported the version of PW-1. - 5 - 13. PW-7, Daulat Ram was examined in rebuttal. He has identified the signatures of his son, Shri Madan. Shri Madan has prepared the site plan Ex.PW-7/A. 14. DW-1, R.D. Sharma has deposed that the entire courtyard of the suit property belongs to the defendants. According to him, this land was purchased by the defendants from D.A.V. Committee in the year 1946 vide registered sale deed Ex. D-1. The sale deed was scribed by Mangat Ram Dogra. According to him, the path leading to Dharamshala of Mata Bagla Mukhi crosses through the deodi of Sunil Kumar son of Bhagwan Dass. According to him, there was no path leading to the temple. 15. DW-2, Hans Raj has deposed that the defendants were owners of the suit property and they were in possession of the same for the last 20-25 years. He has supported the version of DW-1 that the path leading to the temple passes through the deodi of Sunil Kumar. However, in his cross- examination, he has admitted that there is a path on the Sehan of the temple. 16. DW-3, Pawan Kumar has deposed that the path leading to the Dharamshala crosses through the house of Sunil Kaishth. 17. The learned trial Court has not accepted the site plan Ex.PW-7/A though proved by PW-7, Daulat Ram. The site plan Ex.PW-7/A was prepared by Madan Kumar. PW-7, Daulat Ram has identified the handwriting of his son. It has - 6 - come in the evidence of PWs.1, 2 and 3 that there is no other path leading to the temple except the path ‘X to X’, which passes through ‘ABCD’. The version of these witnesses has not been believed on the pretext that in the courtyard slates have been stacked by the defendants by both the Courts below. 18. In order to ascertain whether there is only one path available to the plaintiffs or there is any other alternative path available to them as suggested by the defendants, the Local Commissioner was appointed by this Court with the consent of parties on 5.1.2011. Ms. Anjali Soni Verma, Advocate was appointed as Local Commissioner. She visited the spot and submitted her report to the Court in a sealed cover. It was permitted to be opened in the Court. A copy of the report was supplied to the each learned Advocates representing the parties. The learned Advocates have not chosen to file any objections to the report submitted by the Local Commissioner. It has come in the report that the only path available to the plaintiffs is the disputed path from point A to B to reach Mata Bagla Mukhi Dharamshala. According to the learned Local Commissioner, the alternative route suggested by respondent No.1 was not feasible to approach Mata Bagla Mukhi Dharamshala, because to approach Mata Bagla Mukhi Dharamshala one has to cross a private property. The learned Local Commissioner has also placed on record the site plan showing the location - 7 - of the disputed path leading to Mata Bagla Mukhi Dharamshala. The Court has also perused the same. It is apparent from the perusal of site plan that the only path available to reach the Dharamshala of Mata Bagla Mukhi is as suggested by the learned Local Commissioner which crosses from A to B and thereafter B to C through combined courtyard. 19. The parties have not chosen to file any objections to the report of the Local Commissioner. Therefore, the same is accepted and on that basis, it is held that the path available to the plaintiffs is the only path through ‘X to X’ and ‘ABCD’, i.e. courtyard. 20. Now, so far as the plea of Mr. Anuj Nag, learned counsel for the defendants with regard to maintainability of suit is concerned, issue No.2 was framed by the trial Court and the same has been decided against the defendants. This plea was not raised before the learned first appellate Court. It cannot be permitted to be taken at the stage of regular second appeal. 21. Accordingly, in view of the observations and discussions made hereinabove, the regular second appeal is allowed. The judgments and decrees passed by both the Courts below are set aside. Consequently, the suit of the plaintiffs is decreed. A decree for permanent prohibitory injunction restraining the defendants from interfering and obstructing the user of the property ‘ABCD’ and passage ‘X - 8 - to X’ situate in Kotla Abadi Deh within Lal Lakir as described below:- “AB: 14 metre, BC: 9.60 metre, CD: 12.90 metre, AD: 7.30 metre, surrounded as: property of defendants on the: sought and Mandi- Pathankot National Highways Road Kotla, North: property of Shri Mata Bagla Mukhi Committee i.e. Bagla Mukhi Sahayak Sabha, the plaintiffs, East: Lahri of Amar Lal and Bhagwan Dass, West: Property of Shri R.D. Sharma and others, defendants” is passed in favour of the plaintiffs and against the defendants. The defendants are further restrained from raising any construction over the suit land or causing obstruction to the entrance of plaintiffs and other Sevakan from passing through ‘X to X’ as also through ‘ABCD’, common courtyard for the user of property of the Sabha where Dharamshala is situate. A decree for mandatory injunction is also passed in favour of the plaintiffs and against the defendants to dismantle the construction or chhajja raised from point A to A from entry X to give complete access to the passage. CMP No.522 of 2011. 22. Mr. Anuj Nag, learned counsel for the defendants has also filed an application bearing CMP No.522 of 2011. Same is dismissed in view of the observations made hereinabove with regard to the maintainability of the suit. - 9 - Moreover, this application has been filed when the final hearing has already commenced. 23. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. July 29, 2011. (sck).