IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RSA.No.198 of 1997. Reserved on: 26.12.2007. Date of Decision :26.2.2008 Des Raj and another. …Appellants. Versus: Smt.Kanta Devi and others. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 For the appellants: Mr.Ajay Sharma, Advocate. . For Respondents 2 &3. Mr.N.K.Thakur, Advocate. Sanjay Karol, J. The appellants herein are the plaintiffs. Plaintiffs-Des Raj and Janak Raj filed a suit for injunction against Shri Kanshi Ram predecessor-in-interest of respondent No.1(a) to 1(c) and respondent No. 2-Smt. Rukhman Devi and respondent No. 3-Shri Jagdev Singh. The dispute pertains to the use of passage from the plaintiffs’ land situated in village Aghlour, Tehsil Bangana, District Una. The plaintiffs produced site plan Ext. PW-2/A to contend that the passage through their court yard ,being used by the defendants to take their cattle, belongs to them and the defendants be restrained from using the same. The defendants, in defence pleaded that even as per site plan Ext.PW-2/A and Ext. PW-2/B, the land was “Abadi Deh” (village land 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 for common use) and every person in the “Abadi” had a right to use the same as passage. In any event, the defendants, as a matter of right have been using the same for over 5 decades and as such are entitled to use the same as passage for their live-stock . During trial, vide order dated 2nd October, 1992 Shri M.L.Sharma, Advocate was appointed as a Local Commissioner to visit the site and in terms of his report and his statement as witness DW-1 it has been proved that the only passage which the defendants could use for their cattle was through the suit land. Considering the statement of Shri Vasudev (DW-2) and documents exhibited, the trial court arrived at a conclusion that keeping in view the plaintiffs’ contention and stand in another case being Civil Suit No.203 of 1995, filed by them before the Sub Judge, Una, the stand taken in the present suit was contradictory. In that suit the stand of the plaintiffs in fact supported the version of the present defendants. The court arrived at conclusion that in the said suit the plaintiffs had admitted that the passage in question was used by the general public since long. It is a matter of record that the Presiding Officer of the trial Court personally visited the spot and carried out the inspection on 9th May, 1993 and as per the inspection note dated 9th May, 1993 it was so observed that except the passage on the suit land, no other passage was available to the defendants to take his cattle from his cow-shed to the fileds. The relief of injunction, as prayed for by the plaintiffs in the suit, was accordingly turned down and the suit was dismissed in terms of judgment and decree dated 16th May, 1996. Aggrieved by the same, the plaintiffs preferred an appeal which stood dismissed in terms of the impugned judgment and decree 3 dated 2nd June, 1997 upholding the findings of fact recorded by the court below. The appeal was admitted on the following substantial questions of law: 1. Whether both the learned courts below erred in appreciating the provision of law applicable, pleadings of the parties and evidence adduced by them correctly thereby vitiating the impugned judgments and decrees?. 2. Whether permanent injunction can be refused to the true owner, who is in possession of the property?. 3.Whether both the learned courts below mis-read and mis appreciated documents exhibit PW-2/A, Exhibit D-2, exhibit PA and PB, which vitiated the impugned judgments and decrees?. I have heard learned counsel for the parties and gone through the record. In my view, the courts below have correctly appreciated the material evidence on record including the exhibited documents. The existence of the passage on the disputed land is admitted by the plaintiffs. M.L.Sharma (DW-2) Local Commissioner appointed by the court has proved his report and site plan Exts. DW-2/A and DW-2/B. He has been cross-examined and there is nothing on record which would render his version to be un-true. Through him it has been proved that just before his visit on the spot, the plaintiffs had put up a temporary wall of bricks so as to obstruct the use of the passage and there is no other usable passage for the use of live-stock of the defendants. This report is also corroborated by the spot inspection which was carried out by the Presiding Officer. According to him there is no other alternate passage available with the defendants to enable him to take his cattle for grazing. 4 The submission of the learned counsel for the appellants that the inspection carried out by the Presiding Officer requires to be ignored for the reason that the court cannot be a witness needs to be rejected for the reason that the inspection carried out by the Presiding Officer is not in the capacity of a witness and collect evidence but only to ascertain the factual position as stated by the parties. It has also argued that the defendant did not examine himself in court and only his power of attorney appeared as a witness. The contention needs to be rejected for the reason that the witness was duly authorized to depose the facts which were borne out from the record. The next submission made by the learned counsel that the Local Commissioner has not taken care of the ground situation while preparing Ext.PW-2/A also needs to be rejected as the plaintiffs were afforded sufficient opportunity to cross-examine the said witness. Both the courts below have concurrently rejected the contentions of the plaintiffs. It has further been argued that the courts below have failed to consider the effect of compromise arrived at between plaintiff No.2 and defendant No.3. Record shows that the Courts below have considered the same. The findings recorded by the first appellate Court in this regard, with approval, are reproduced as under: “The copy of the alleged compromise shows that Janak Raj plaintiff and Jagdev Singh defendant have agreed that Jagdev Singh would continue using the stair fo his live-stock till the decision of the case and after the decision of the present suit he would use the passage as per the decision of the civil suit. The perusal of copy of the alleged compromise under reference does not unfold 5 that Jagdev Singh had admitted that prior to the year 1992 the live-stock belonging to the defendants were passing through the alternative passage which consists of the stairs. If at-all it is to be presumed that the aforesaid agreement did saw the light of the day then the same appears to be a temporary arrangement to avoid further controversy between the parties till the matter was adjudicated in the Court. Thus, copy of the compromise Ext. PB is of no avail to the cause of the plaintiffs. It does not mandate that the defendants were taking their live- stock through the stairs prior to the launching of the litigation against the defendants by the plaintiffs. Moreover, it cannot be perceived that the cattle could be taken through stairs.” The courts below have concurrently held that the disputed passage has been in the use of the defendants since long. The courts below have correctly appreciated the provisions of law and the material on record. The impugned judgments cannot be said to be contrary to the record. The questions of law are answered accordingly. For the aforesaid reasons, the appeal is dismissed. (Sanjay Karol), Judge. February 26, 2008(R) 6