KRISHANA Vs. SHIV LAL

JUDGEMENT

(1.) This petition has been filed under Article 227 of the Constitution of India. In my view this petition is maintainable since not only is the value of the decree less than 25,000/- but also because the petitioners are only challenging the findings of the learned Court below and no decree has been passed against them. This petition by the defendant is directed against the findings given on issue No.6 by the learned lower Appellate Court.

(2.) Briefly stated the facts of the case are that Shiv Lal, plaintiff, filed a suit against the present petitioner and the State of Himachal Pradesh. For the purpose of this petition the facts relevant are that the plaintiff claimed that he had a house which opened out towards Khasra Nos. 1386/1 and 1380/ 1. The plaintiff claimed that there was a passage going through Khasra Nos. 1386/1 and 1380/1. He also claimed other rights of easement and prayed that the construction being raised by the petitioners was without approval of the plan from the Municipal Committee and had been raised by encroaching upon Khasra No.1386/1. Defendants No. 1 to 4 contested and resisted the suit and claimed that land comprised in Khasra No. 1386/1 is neither a road nor the State of Himachal Pradesh is the owner of the land. According to the defendants Khasra No. 1386/1 was owned and possessed by the defendants and is in their possession. The State of H.P. claimed that Khasra No.1386/1 is recorded as Jaya Safed and is owned by the State Government. On the pleadings of the parties the learned trial Court framed various issues. Issue No.6 is relevant for our purpose and read as follows :-

(3.) The learned trial Court dismissed the suit of the plaintiff and while giving its finding on issue No.6 came to the conclusion that the land comprised in Khasra No.1386/1 is owned and possessed by the defendants i.e. the present petitioners. Appeal was filed by the plaintiff Shiv Lal. No appeal was filed by the State. His appeal has been dismissed on merits. However, the learned Appellate Court came to the conclusion that there was no occasion for the learned trial Court to have framed issue No.6 aforesaid. According to the learned lower Appellate Court there was no dispute with regard to the possession or ownership of this khasra number and the only question involved was whether the plaintiff had a right of passage or other easementary rights over this khasra number or not. Hence, the learned lower Appellate Court was of the view that this issue was not required to be framed.