IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 367/1999 Reserved on: 18.5.2009 Decided on:24.7. 2009 Gian Chand. …Appellant. Versus State of Himachal Pradesh and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellant : Mr. Romesh Verma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Ramesh Thakur, Asstt. Advocate General. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree 27.7.1999 passed by the learned District Judge, Solan in Civil Appeal No. 70-S/13 of 1998. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit against the respondents- defendants (hereinafter referred to as ‘the defendants’ for convenience sake) stating that he is owner of the land comprised in Khata Khatauni No. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 30/144, Khasra No. 682 measuring 527 square meters, situated in Mauja Srinagar at Kandaghat, Had Bast No. 441/1, Tehsil Kandaghat, District Solan as per Missal Haquiat for the year 1992-93. It is further stated that there was a Kutcha path over the suit land starting from National Highway to Power House at Srinagar-Kandaghat and the said path was being used by the defendants with the consent of the plaintiff as licencee and was just a footpath though some vehicles were also being plied. According to the plaintiff, the defendants had no right, title or interest over the suit land. The plaintiff further stated that the defendants have neither acquired this land nor they have purchased the same nor it is donated by the plaintiff to the defendants. Thus the possession of the defendants on the suit land was permissive. He finally averred that defendant No.2 had started metalling the road in the year 1994. A notice was served upon the defendants. The suit was contested by the defendants. According to the defendants, the suit land has been shown in the Missal Haquiat as “Gair Mumkin Sarak” in possession of the Public Works Department and thus, the plaintiff has no right, title or interest in the suit land. According to the defendants, the motorable link road is in existence up to the Power House since the time of Rulers of Patiala and the Public Works Department is maintaining this road since 1966. In replication, the contents of the written statement were denied and that of the plaint were re-affirmed. The trial court dismissed the suit on 21.10.1998. The plaintiff preferred an appeal before the learned District Judge, Solan. The learned District dismissed the same on 27.7.1999. This Regular Second Appeal has been directed against the judgment and decree dated 27.7.1999. The same was admitted on the following substantial question of Law: 3 “Whether the findings as recorded by both the courts below are vitiated on account of misreading and mis- appreciation of the pleadings of the parties in as much as that the right of easement and irrevocable licence having not been set up by the respondents, even then the claim of the appellant has been declined?” Mr. Romesh Verma, Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable. According to him, the courts below have misread the oral as well as documentary evidence. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. The plaintiff, in support of his case, has cited two witnesses, including himself. The defendants have examined five witnesses and have also adduced documentary evidence. PW-1 Gian Chand (plaintiff) has deposed that he has purchased the land in the year 1963 from one Sh. Durga Singh. According to him, there was Kutcha path about 4-5 feet wide starting from National Highway to Power House but in the month of November, 1994, defendants started widening the said path by metalling the same. He objected to the same. He also served a notice upon the defendants through his counsel. He has feigned his ignorance in his cross-examination regarding the revenue record standing in the name of the Government. He has also feigned ignorance that the road has been constructed with the permission or consent of its owner. He has not denied the existence of Rest House and Store of Public Works Department adjacent to the Power House. He has 4 not denied that small vehicles were using this road. PW-2 Tara Dutt has deposed that in the year 1994, the defendants have undertaken the metalling work in the suit land by widening it. He has admitted in his cross-examination that his village is at a distance of 6-7 kilometers by road. He has admitted that he had seen the Power House and the way to the Power House passes through the suit land and it is the only path available. He has admitted that heavy machinery was installed in the Power House and power was also generated. DW-1 R.K. Gupta has deposed that the road in question was being maintained by Public Works Department and it leads to Rest House, Store of Public Works Department and Power House. He then deposed that the repairs of the road are undertaken after every five years. DW-2 Kania Ram, who was working as Beldar with the Public Works Department with effect from 1961, has deposed that the road leads from National Highway to Store of Public Works Department and Rest House. The same was metalled even when he joined in the year 1961. It was used by the Electricity Department, Public Works Department and other heavy vehicles used to ply on this road. In his cross-examination, he has denied that earlier the road in question was Kutcha. DW-3 Ranvir Singh has supported the version of DW-1 and DW-2. He has deposed that the road was metalled even before 1966. Sh. K.S. Saini has appeared as PW-4. He remained posted at Kandaghat with effect from 1990 to 1995. He has deposed that the road was being used for heavy vehicles for carrying the material of Public Works and Electricity Departments. According to him the repairs were done. DW-5 Inder Dutt Patwari has produced the copies of Jamabandis Ex.DW-5/A to Ex.DW-5/D and their translation Ex.DA and DB. 5 It is proved on record that the road in question was in existence since 1935-36. The road was being used for the purpose of carrying heavy machinery to the Power House and the same road leads to Public Works Department, Rest House and residential quarters. It is also proved that the defendants had been maintaining the road. The Jambandi Ex.DA shows the land as “Sarak” and in possession of the State through Department “Power House”. The documents Ex.DW-5/A to DW-5/D which are copies of Jamabandis for the year 1954-55, 1981-82, 1986-87 and 1992-93, reveal the suit land as “Gair Mumkin Sarak” and in occupation of the State though the ownership had been shown in the name of Jash Ram, Bija Ram, Bali Ram etc. In the Jamabandi for the year 1981-82, ownership has been shown in the name of Smt. Gauri Devi, Durga Singh, Bali Ram etc. The oral evidence of the defendants is in conformity with the revenue record. The plaintiff has not examined the previous owner of the land Sh. Durga Singh. He was the most material witness to prove whether he or his predecessor-in-interest had consented to defendants for the use of the land. It is not averred in the plaint that the plaintiff purchased the land from Durga Singh. He has not led any evidence to prove whether the defendants took the consent of the plaintiff or the plaintiff consented for the use of the road either orally or by some written agreement. In view of this material, it cannot be held that the defendants have illegally encroached upon the land in question. Mr. Romesh Verma has also argued that in one of the jamabandis entry has been made to the effect that the State was contemplating for granting compensation. This is a stray entry. It is also not mentioned who has ordered the incorporation of this entry in the revenue record. 6 Accordingly, in view of the observations made hereinabove, there is no misreading or mis-appreciation of the oral as well as documentary evidence by both the learned courts. Consequently, there is no merit in the Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 24.7. 2009 (Rajiv Sharma ), J. *awasthi*