1 1IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 326 of 2003 with COPC No.7 of 2004. Date of decision: 06.12.2011. 1. R.S.A.No.326 of 2003. Balbir Singh. .…Appellant. Versus Sewa Ram & Ors. ....Respondents. 2. COPC No.7 of 2004. Sewa Ram & Ors. .…Petitioners. Versus Balbir Singh. ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellant : Mr. K.D.Sood,Advocate with Mr.Balwant Singh Thakur, Advocate, for appellant in RSA No. 326 of 2003 and for respondent in COPC No. 7 of 2004. For the Respondent : Mr. Ramakant Sharma, Advocate, for respondents in RSA No. 326 of 2003 and for petitioners in COPC No. 7 of 2004. Kuldip Singh , Judge (Oral). This judgment shall dispose of R.S.A. No. 326 of 2003 and COPC No. 7 of 2004. The R.S.A. No. 326 of 2003 has been directed against the judgment, decree dated 12.05.2003 passed by Additional 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 District Judge, Sirmaur at Nahan in Civil Appeal No. 24-N/13 of 2002, affirming judgment, decree dated 11.03.2002 passed by Senior Sub Judge, Sirmaur at Nahan, in Civil Suit No. 147/1 of 2000/1999. The appellant has lost in both the Courts. 2. The brief facts of the case are that the appellant had filed a suit for permanent prohibitory injunction against the respondents. It has been alleged that appellant is co-sharer in land comprised in Khasra No.348/281, measuring 5-11 bighas,he is in actual and physical possession of the land measuring 3 biswas out of the suit land on the spot which has been shown in tatima denoted by Khasra No. 348/281/1, measuring 3 biswas. The respondents have no right, title or interest over the suit land. They are not co-sharers in the suit land nor they have any right to cause interference over the suit land. 3. It has been alleged that appellant started construction work over the suit land, but the respondents without any reason caused un-necessary interference on 12.09.1999. They also caused damage to the construction raised by the appellant on the spot. The respondents have threatened the appellant that they would not allow the appellant to raise construction over the suit land. In these circumstances, the suit for permanent prohibitory injunction was filed by the appellant against the respondents. 4. The suit was contested by respondents by filing joint written statement in which preliminary objections such as maintainability, resjudicata, the appellant has not approached the Court with clean hands, suppression of material facts, no enforceable cause of 3 action have been taken. On merits, the respondents denied the claim of the appellant. It has been stated that they are also co-sharers in the suit land. The revenue entries not depicting their ownership and possession are illegal and contrary to the factual position on the spot. They have denied actual and physical possession of appellant over land measuring 3 biswas. The suit land is 'abadi-deh' of villagers and respondents are owners in possession of land denoted by Khasra No.348/281/1 measuring 11 biswas. In between the properties of parties, there exists a village path which is being used by the villagers including the respondents since time immemorial. The width of the path was about 4/5 feet. The respondents have denied that they have interfered over the suit land. It has been alleged that appellant is encroaching the path. The prayer has been made for dismissal of the suit. 5. The replication was filed. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is in actual and physical possession of land measuring 0-3 biswas out of suit land, as alleged? OPP. 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed? OPP. 3. Whether this suit is not maintainable as alleged ?OPD. 4. Whether the plaintiff has no caused of action to file the suit? OPD. 5. Whether there exists a village path used since time immemorial by the villagers as common path? If so its effect? OPD. 6. Relief. 4 The issues No.1 and 5 were answered in affirmative, issue No.2 in negative, issues No.3 and 4 were held to have become redundant and the suit was dismissed on 11.03.2002. In appeal, the Additional District Judge on 12.05.2003 affirmed the judgment, decree dated 11.03.2002, hence second appeal. The appeal has not been admitted. 6. The respondents in the appeal have filed Contempt Petition No. 7 of 2004 alleging that appellant has not complied the order 21.11.2003 passed by this Court in RSA No. 326 of 2003. It has been alleged that appellant has reduced the width of the path while repairing the path. The prayer has been made in the contempt petition to punish the appellant under the Contempt of Courts Act for willfully disobeying the order dated 21.11.2003 of this Court. 7. The appellant has filed reply and has stated that he has not disobeyed the Court order. The respondents are un-necessarily harassing the appellant and objecting to the construction of his retaining wall. It has been stated that appellant has repaired the path without reducing its width or damaging the property of the respondents and has repaired the path within three weeks' as per the order dated 21.11.2003. It has been stated that he has constructed the retaining wall on his own land. The path has been made 'pucca'. He has relied certificate of Pradhan, Gram Panchayat, Shelani Katola and certificate of Secretary, Panchayat, Shelani Katola in support of his contention. On merits, the appellant has reiterated the same stand and has denied that the path was earlier 6 ½ feet or 8 feet 3 inches or it has been reduced to 4 feet by the appellant. The respondents have filed the 5 rejoinder and reiterated their stand taken in the contempt petition. 8. DW-1 Sushil Chand has stated that he has no connection with 3 biswas of land of appellant. He denied the suggestion that on 12.09.1999, he stopped the appellant from raising the retaining wall. He denied that he gave beatings to the appellant and reported the matter to the police. DW-2 H.S.Chaudhary has stated that he was appointed as Local Commissioner in the case and he visited the spot on 23.11.1999. The counsel for the parties were also present. He prepared the report Ex. D-1. The trial Court has recorded a finding of fact that unimpeached statement of Local Commissioner DW-2 H.S. Chaudhary together with report Ex. D-1 negatives the allegations of plaintiff that illegal obstruction or interference was being caused by the defendants in the construction work being taken up on the spot by the plaintiff. It has been observed that the intention of the plaintiff does not appear to be honest. He actually wanted to encroach upon the disputed path by extending boundary of his land thereby decreasing the actual width of the passage on the spot. It has been observed that the plaintiff has not approached the Court with clean hands and is not entitled to the permanent prohibitory injunction against the defendants. 9. The findings of facts recorded by trial Court have been affirmed by lower Appellate Court. It has not been pointed out that the findings of facts recorded by two Courts below are based on inadmissible evidence or there is no evidence for recording such findings nor the findings recorded by two Courts below are shown to be perverse. The two Courts below dismissed the suit of the appellant 6 purely by appreciating evidence on record. In second appeal, reappreciation of the evidence is not permissible. No substantial question of law emerges from the material on record. There is no merit in the appeal which is liable to be dismissed and is accordingly dismissed. 10. Insofar contempt petition is concerned, the respondents have alleged that appellant has willfully violated the order dated 21.11.2003 passed in RSA No. 326 of 2003. In the order dated 21.11.2003, the width of the passage has not been given. The order dated 21.11.2003 is as follows: “The lis between the parties pertains to a public path, which has been damaged by the construction raised by the appellant. The appellant undertakes to repair the public path without reducing its width or otherwise damaging the property of the respondents. Appellant, who is present in the Court states that he will repair the public path within three weeks from today. The appellant, needless to say, shall be entitled to construct a retaining wall on his own land. It is made clear that respondents shall not obstruct or otherwise interfere in repairing the public path. List on 19th December, 2003.” The respondents have alleged that while repairing the passage, the appellant has reduced the width of the passage from 8.3 feet to 4.11 feet. The respondents have relied on report Annexure P-6. The appellant has placed on record statements of several villagers Annexure A-3 stating therein that the width of the passage has not been reduced which from the very beginning is 4 feet wide and now it has been 7 made 4 ½ feet and 'pucca'. 11. The appellant has placed on record Annexure A-4 certificate of Draughtsman indicating that appellant has spent about `40,000/- for making the path 'pucca'. In view of Annexure A-3 statement of several villagers that earlier the path was 4 feet and it has been now made 4 ½ feet by appellant and also 'pucca', it cannot be said that appellant has violated the order dated 21.11.2003 passed in RSA No. 326 of 2003, more particularly, when the width of passage which was to be made 'pucca' by appellant has not been given in the order dated 21.11.2003. 12. The respondents cannot take benefit of Annexure P-6 inasmuch as Annexure P-6 nowhere indicates that initially the width of the disputed passage was only 4 feet and it has been further reduced by appellant. The Annexure P-6 has been prepared by the Draughtsman on the date on which he allegedly visited the spot. The learned counsel for the respondents has stated that in the earlier Local Commissioner report submitted by H.S. Chaudhary the width of the passage has been given 6.5 feet to 8.3 feet. The report of Local Commissioner is dated 23.11.1999. The position of path on 21.11.2003 is relevant for contempt petition. This Court in the order dated 21.11.2003 did not give dimensions of the path nor said that repair should be on the path as identified by Local Commissioner in his report dated 23.11.1999. In the contempt petition, there is no evidence what was the dimension of path on 21.11.2003. The villagers in their joint statement Annexure A-3 have stated that appellant has not reduced the width of path while repairing 8 the path. The respondents have failed to make out any case of willful disobedience of the order dated 21.11.2003. Accordingly, the petition is dismissed. The pending applications are also disposed of. ( Kuldip Singh ), December 6, 2011. Judge. (krt)