MOHINDER SINGH Vs. ROSHAN LAL

JUDGEMENT

(1.) The plaintiffs/appellants' herein (for short the plaintiffs), suit for, rendition of a declaratory decree, as well as, for, rendition of a decree of mandatory, and, permanent injunction, stood dismissed, by the learned Sub Judge, 1st Class, Court No. II, Amb, District Una, H.P. (for short "trial Court"). In an appeal cast therefrom, by the aggrieved plaintiffs, before the learned Additional District Judge, Una, H.P (for short "first appellate Court"), the latter affirmed the findings recorded, by the learned trial Court.

(2.) The aggrieved therefrom, the plaintiffs, hence rear the instant RSA, before this Court, wherefrom, they strive to beget reversal, of, the impugned verdict(s).

(3.) The brief facts of the case are that the suit filed by the plaintiffs, for, a decree of declaration to the effect that area marked by letters ADLKJIA shown as such in the site plan measuring 0-00-99 hectares comprised in Khewat No. 128 min Khatauni No. 435 min with present khasra No. 1522 and area marked by letters ABDCGHFA measuring 0-00-80 hectares comprised in Khewat No. 129 min Khatanui No. 436 with present khasra No. 1509 as per misal Hakiyat Bandobast for the year 1986-87 situated in village Nari, Tehsil Amb, District Una, H.P (for short the suit land) are part of old khasra No. 630, 638 and 639 and as such are owned by the plaintiffs and are used as Shareaam rasta by the plaintiffs as well as other inhabitants of the village since ancestors. Settlement order of 21.5.1998 is prayed to be declared wrong, illegal and void. By way of mandatory injunction plaintiffs have prayed to remove super structure marked by letters ABCDEFG shown shown in red colour in the site plan and to restore the same to its original position. In a prayer of permanent injunction the plaintiffs have prayed for restraining the defendants from raising further construction and obstructing, blocking said passage marked by letter KLDCGHFAIJ in any manner. The land comprised in old khasra No. 630, 638 and 639 was owned by the plaintiffs, and, during settlement process in the village, new numbers were carved out of same and measurement was converted into metric system. Area marked by letters ADLKJIA shown in the site plan of the plaintiffs measuring 0- 00-99 hectares now comprised in new khasra number 1522 is in actual part of old khasra Nos. 638 and 639 and in a similar manner area marked by letters ADCGHFA measuring 0-00-80 hectares comprised in new khasra No. 1509 is part of old khasra No. 630 and 638. Said land was used as Shareaam passage by the plaintiffs and other inhabitants of the village to egress and ingress to their abadis, cattles shed as well as to Bazar and fields. Settlement staff during settlement process without any basis has shown land comprised in khasra No. 1509 in the ownership of defendant No.4 and land comprised in khasra No. 1522 in the ownership of defendants No. 3,5,10 and 11 which is wrong and illegal. However, nature of said land was rightly shown by the settlement staff as shareaam passage as per actual and factual position. In case the said suit land is not found to be Shareaam passage of the plaintiffs, in that case the plaintiffs have acquired a easementary right in the passage by way of prescription. The passage in question is essential for the beneficial enjoyment of the abadies of the plaintiffs, which is situated over new khasra No. 1510 towards northern side of the passage. The settlement Collector Kangra, during the pendency of the suit has passed the order of correction of entries in respect of the suit land which is wrong and illegal and the appeal against the order of settlement collector Kangra is pending before Additional Commissioner (Appeals) Shimla. The defendants have no right and title to raise the construction forcibly and block the passage. Therefore the plaintiffs have prayed for declaration and injunction.