KEWAL RAM Vs. PURAN SUKH

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 27.03.2002, passed by the learned District Judge, Kinnaur in Civil Appeal No. 34 of 2001.

(2.) MATERIAL facts necessary for adjudication of this Regular Second Appeal, are that the Respondent -Plaintiff (hereinafter referred to as 'the Plaintiff ' for convenience sake), had instituted a suit for declaration with consequential relief of permanent injunction against the Appellants -Defendants (hereinafter referred to as 'the Defendants ' for brevity sake), on the allegations that he had been owner in possession of land described in Khasra Nos. 882, 886, 340/1 and 881/1 in revenue estate UP -Mohal Kanahar, Tehsil Kumarsain, District Shimla. This land was allotted to the Plaintiff by the State by way of Nautor on 23.04.1971. Patta was also granted in favour of the Plaintiff. The record relating to the allotment in favour of the Plaintiff was gutted in fire in 1972. The record was re -constructed. Thereafter, fresh allotment order was issued in favour of Plaintiff on 21.04.1995 on the basis of which, mutation was attested on

(3.) THE suit was contested by the Defendants. The Defendants No. 1 and 2 had admitted that Khasra Nos. 887 and 888 had been allotted in favour of Defendant No. 1 on 22.12.1979. According to Defendants No. 1 and 2, the path to Nautor holding of the Plaintiff passed through Khasra Nos. 702, 713, 745, 775, 793 and 813 as per field map, copy of which is Ex. -DB. According to them, there was Odi -Kotgarh highway passing through Khasra No. 449. The Odi -Kotgarh highway was also connected to the Nautor holding of the Plaintiff through alternative path. It was denied that the Plaintiff had been using the path for the last 20 years. According to them, the Plaintiff had not acquired any right to use Khasra Nos. 887 and 888. The Plaintiff has filed replication to the written statement filed by the Defendants. The trial Court framed the issues on 04.10.1999 and two additional issues were framed on 08.03.2001. The suit of the Plaintiff was decreed on 06.11.2001 to the effect that there exist a path over Khasra No. 887 and 888 (suit land) and the Defendants were restrained from obstructing and restraining the Plaintiff, his family members and servants from using the said path to approach the land of Plaintiff. The Defendants preferred an appeal before the learned District Judge Kinnaur, Civil Division at Rampur Bushahr. The same was dismissed on 27.03.2002. Hence, this Regular Second Appeal.