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2010 Supreme(HP) 731
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Hon'ble Judges: Kuldip Singh, J.
Birender Singh – Appellants
Vs.
Gram Panchayat Mahi and Ors. – Respondent
Regular Second Appeal No. 504 of 2000
Decided On: 24.04.2010
The court's decision was influenced by the evidence of the existence and width of the path, the documentary evidence, and the findings of the lower courts.
Headnote:
Path Dispute - Property Dispute - H.P. Panchayati Raj Act, 1994 - Section 93, Civil Procedure Code - Section 80 - [Khasra No. 373, Khasra No. 638, Missal Haqiyat Jadid Ex.D-2(Ex.P-8), Ex.DW-2/A, Ex.DW-2/B, Ex.DW-2/C, Ex.D-1, Ex.P-9, Ex.P-10] - The court discussed the ownership and possession of the suit land, the validity of revenue entries, jurisdiction of the court, maintainability of the suit, and other procedural aspects. The key legal provisions discussed include the H.P. Panchayati Raj Act, 1994, and the Civil Procedure Code. The court's decision was influenced by the evidence of the existence and width of the path, the documentary evidence, and the findings of the lower courts.
Fact of the Case:
The appellant claimed ownership of the suit land and disputed the revenue entries showing a path over the land. The lower courts dismissed the suit, leading to the appeal.
Finding of the Court:
The court found that the existence of the path on the suit land was established, and the width of the path was in dispute. The court upheld the findings of the lower courts and dismissed the appeal.
Issues: The ownership and possession of the suit land, validity of revenue entries, jurisdiction of the court, maintainability of the suit, and procedural aspects.
Ratio Decidendi: The existence and width of the path, documentary evidence, and findings of the lower courts influenced the court's decision.
Final Decision: The appeal was dismissed, and no costs were awarded.
Kuldip Singh, J.
1. The plaintiff has come in appeal against judgment, decree dated 22.7.2000 passed by learned Additional District Judge, Solan in Civil Appeal No. 2-S/13 of 2000 affirming judgment, decree dated 24.12.1999 passed by learned Sub-Judge 1st Class, Kandaghat in Civil Suit No. 150-K/1 of 1995.
2. The case of the appellant, in brief, is that he is owner in possession of the land comprised in Khata No. 60, Khatauni No. 100 Khasra No. 373 measuring 2-15 Bighas situated in Mauja Salhari, Tehsil Kandaghat, District Solan as per jamabandi for the year 1974-75. It has been alleged that during recent settlement Khasra No. 373 has been assigned new Khasra Nos. 627, 631, 632, 633, 634 and 638 Kita 6, measuring 2346 square meters as per Misal Haqiyat Bandobast for the year 1992-93. The appellant and his predecessor-in-interest had been absentee landlords, revenue officials during settlement operation in connivance with some vested interests and taking advantage of the absence of the appellant had illegally shown portion of old Khasra No. 373, now new khasra No. 638 measuring 707 sq.mtrs. as 'Gair Mumkin Rasta'. In the column of possession, 'Share Aam' has been shown in the revenue record, such entry is wrong, illegal and not binding on the appellant. There exists no path on the spot on the suit land. It has been alleged that there is only a small beaten path of two feet width by the side of the suit land on the lower side which is being used by the villagers and goes towards village Bhagash. The appellant has no objection to the user of that beaten path by villagers. It has been alleged that respondents No. 1 and 2 have started interference on the suit land by digging the land and they have threatened to make path pucca on the basis of wrong revenue entries.
3. The suit was contested by respondents by filing written statement. The respondents No. 1 and 3 have filed separate written statements. The preliminary objections of jurisdiction, lack of notice under Section 80 C.P.C., non-compliance of Section 93 of the H.P. Panchayati Raj Act, 1994 were taken. The respondent No. 3 has also taken the preliminary objection that appellant has no cause of action, suit has not been properly valued for the purpose of Court fee and jurisdiction, suit is bad for want of necessary parties. On merits, it has been alleged that there is a path in existence for the last more than 100 years which is enjoyed by the public at large peacefully, openly and without any objection to the knowledge of the appellant. The Panchayat had sent the case to the Government for sanction of appropriate funds for repairing the said path. The respondent No. 3 had sanctioned the grant and the Panchayat was authorized to conduct the repair. The entry of path made during settlement was made after spot verification. The appellant had filed separate replications to the written statements of respondents No. l and 3 and re-affirmed his case.
4. On the pleadings of the parties, the following issues were framed:
1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP.
2. Whether the revenue entries in respect of Khasra No. 638 measuring 707 sq. meters as Gair Mumkin Rasta and Share Aam, are wrong, illegal, imaginary, null and void and not binding on the plaintiff as alleged? OPP.
3. Whether the Court has no jurisdiction to try the suit as alleged? OPD.
4. Whether the suit is not maintainable in the present form? OPD. 1 and 3.
5. Whether the suit is bad for notice under Section 80 C.P.C., as alleged? OPD. 1 and 3.
6. Whether the plaintiff has no cause of action? OPD 1 and 3.
7. Whether the suit is not valued properly for the purpose of Court fee and jurisdiction? OPD 3.
8. Whether the suit is bad for non-joinder of necessary parties? OPD 3.
9. Relief.
The issues No. 4 and 6 were answered in affirmative, issue No. 1 partly in affirmative, issues No. 2, 3, 5, 7 and 8 were answered in negative and the suit was dismissed by the learned Sub-Judge on 24.12.1999.
