BIRENDER SINGH Vs. GRAM PANCHAYAT MAHI

JUDGEMENT

(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.