RSA No.3865 of 2009 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3865 of 2009 (O & M) Date of Decision: 11.02.2011 Mangat Ram and others ……Appellants Versus Central State Farm, Dhandur Beer, Hisar and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vijay Singh Kajla, Advocate for the appellants. Mr. Amit Goel, AAG, Haryana for respondent No.7. None for remaining respondents. L.N. MITTAL, J (ORAL) Legal representatives of plaintiff No.1-Om Parkash along with plaintiff Nos.2 and 3 have filed the instant second appeal. Suit was filed by plaintiff No.1-Om Parkash since deceased (represented by appellant Nos.1 to 4) and appellant Nos.5 and 6 as plaintiff Nos.2 and 3 and proforma respondent No.8-Balwan Singh as plaintiff No.4 against Haryana State, Central State Farm (defendant Nos.1 and 2) and private defendant Nos.3 to 7. The plaintiffs alleged that for their land detailed in paragraph 1 of the plaint, they have 2 karams vide passage through land of defendant Nos.1 and 2 and also through land of defendant Nos.3 to 7 as mentioned in the headnote of the plaint. The plaintiffs claimed that they have been using this passage for 40 years and, therefore, they have acquired right of easement by prescription. There is also no other passage for their land and, therefore, they also have right of RSA No.3865 of 2009 (O & M) - 2 - passage by easement of necessity. Accordingly, the plaintiffs sought declaration about the disputed passage and also sought necessary injunction etc. Defendant Nos.1 and 2 in their separate but similar written statements broadly denied the plaint allegations and pleaded that there is no passage through their land as claimed by plaintiffs. Defendant Nos.4 and 5 partly admitted the claim of the plaintiffs and partly denied the same. Defendant Nos.3, 6 and 7 were proceeded ex parte. Later on, defendant Nos.4 and 5 were also proceeded ex parte. Learned Civil Judge (Junior Division), Hisar vide judgment and decree dated 10.09.2008 decreed the plaintiffs’ suit. Defendant Nos.1 and 2 preferred two separate first appeals against judgment and decree of the trial Court. Learned Additional District Judge, Hisar vide common judgment dated 29.04.2009 allowed both the appeals and thereby dismissed the plaintiffs’ suit. Feeling aggrieved, legal representatives of plaintiff No.1 and plaintiff Nos.2 and 3 have filed two regular second appeals i.e RSA No.3865 of 2009 and RSA No.3866 of 2009 because there were two first appeals. Both the aforesaid second appeals are being disposed of by this common judgment. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that even in copy of jamabandi Ex.P-4, disputed passage has been depicted through the land of defendant Nos.6 and 7. RSA No.3865 of 2009 (O & M) - 3 - Similarly, in copy of jamabandi Ex.P-3, passage has been depicted through the land of defendant Nos.3 to 5. However, it may be clarified that in the plaint, rectangle No.229 of the land of defendant Nos.6 and 7 was mentioned whereas the correct rectangle number as revealed by copy of jamabandi Ex.P-4 is 929 instead of 229. From this unrebutted evidence, it is proved that plaintiffs have passage through the aforesaid land of defendant Nos.3 to 7. Consequently, learned lower appellate Court was not justified in reversing the finding of the trial Court regarding the said part of the disputed passage. On the contrary, lower appellate Court only referred to land of defendant Nos.1 and 2 to reverse the finding of the trial Court regarding the passage. However, the plaintiffs claimed passage through the land of defendant Nos.1 and 2 and also through land of defendant Nos.3 to 7. Plaintiffs’ claim of disputed passage through the land of defendant Nos.3 to 7 is substantiated by copies of jamabandis Ex.P-3 and Ex.P-4 which carry presumption of correctness. The said presumption has not been rebutted in any manner. Plaintiffs’ evidence in this regard also stands unrebutted. Consequently, plaintiffs are entitled to succeed to this extent and finding of the lower appellate Court to the contrary is perverse and illegal and, therefore, unsustainable in law giving rise to substantial question of law. The said finding of the lower appellate Court is reversed and set aside. The dispute, however, remains regarding the alleged passage claimed through the land of defendant Nos.1 and 2. There is no document whatsoever to depict that any such passage as claimed by the plaintiffs through the land of defendant Nos.1 and 2 RSA No.3865 of 2009 (O & M) - 4 - exists at the spot. No copy of jamabandi has been produced to prove the same unlike copies of jamabandis Ex.P-3 and Ex. P-4 relating to passage through the land of defendant Nos.3 to 7. Consequently, adverse presumption arises against the plaintiffs on this ground. Learned counsel for the appellants referred to site plan Ex.P-5 depicting the alleged passage. However, this site plan has been got prepared by the plaintiffs and depiction of the disputed passage in the said site plan through the land of defendant Nos.1 and 2 carries no probative value to prove the existence of any such passage. Oral evidence led by the plaintiffs in this regard is also, therefore, not sufficient to prove this version of the plaintiffs. The plea of the plaintiffs that they have no other passage for their land is also not substantiated in the absence of any ‘Akshajra’ depicting that there is no other passage for the land of the plaintiffs. On the contrary, the defendants have produced copy of ‘Akshajra’ Ex.D-2 which clearly demonstrates that there is no passage through the land of defendant Nos.1 and 2 as claimed by the plaintiffs. It is thus manifest that no passage exists through the land of defendant Nos.1 and 2 and claim of the plaintiffs in this regard has been rightly rejected by the lower appellate Court. There is no infirmity much less illegality or perversity in the said finding of the lower appellate Court so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal regarding this aspect of plaintiffs’ claim. For the reasons aforesaid, the instant second appeal is allowed partly and judgments and decrees of the Courts below are RSA No.3865 of 2009 (O & M) - 5 - modified and the suit of the plaintiffs is decreed partly regarding passage claimed by them through the land of defendants Nos.3 to 7 as mentioned in the plaint, but suit regarding claim of the plaintiffs regarding alleged passage through the land of defendant Nos.1 and 2 stands dismissed. (L. N. MITTAL) JUDGE 11.02.2011 A.kaundal