Jagdish vs Sardool RSA 4130/11 28/03/23 [CORAM: HON’BLE MR.JUSTICE H.S.MADAAN

[ PUNJAB HARYANA HIGH COURT 

• Specific Relief Act Section 34 Suit for Passage Seeking dismissal of suit Defendant contends that no cause of action arose to the plaintiff to bring the suit and he had done so just to cause harassment to the defendants Plaintiffs claimed that partition has not been formalised and the passage claimed is only access road to his land Presence of Plaintiff was recorded in the roznamcha while demarcation of land for private partition No mention in the roznamcha regarding any passage having been left through land of defendants, for use of the plaintiff as approach to the chunk of land allotted to him during partition – Thus the stand of the plaintiff that land has not been formally partitioned stood nullified – Suit dismissed.

Relevant Paras:

4. On getting notice, the defendants appeared and filed written statement admitting that plaintiff and defendants had a joint khewat earlier measuring 150 bighas 8 biswas. As per the stand taken by the defendants, the parties are in cultivating possession of the same since 27.4.1978; it was partitioned with mutual consent and mutation No.824 was sanctioned in that regard on 27.4.1978; the defendant No.1 has installed his tubewell in khasra No.327/1 besidesconstructing a kotha therein with which the plaintiff has no concern; as a matter of fact, he is no more co-sharer in the land after the partition as mentioned supra; no passage is in existence at the spot as alleged by the plaintiff, rather it is joint land of defendants and is in their cultivating possession; no cause of action arose to the plaintiff to bring the suit and he had done so just to cause harassment to the defendants. The defendants prayed for dismissal of the suit.
5. The plaintiff had filed replication controverting the allegations in the written statement whereas reiterating the averments in the plaint.

 

9. The plaintiff was aggrieved by the said judgment and decree and he had filed an appeal before the Court of District Judge, Patiala, which was assigned to Additional District Judge, Patiala, who vide judgment and decree dated 22.3.2011 accepted the appeal, set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff to the extent that their exists a passage as depicted in the site plan attached with the report of the Local Commissioner dated 29.5.2001. Accordingly, defendants were restrained from interfering in the peaceful use of the passage by the plaintiff as depicted in the site plan attached to the report of Local Commissioner dated 29.5.2001. However, the findings with regard to partition having already taken place was affirmed.

14. However, the First Appellate Court of Additional District Judge, Patiala by ignoring the cogent and convincing evidence brought on record by the defendants showing absence of any passage, went on to rely upon the oral evidence as well as report by Local Commissioner so as to come to the conclusion that such passage is there. It is a clear case of misappraisal of evidence and wrong interpretation of law. The law is well settled that documentary evidence takes precedence over the oral evidence and revenue record is best type of evidence to see the ownership and possession of the land bearing khasra numbers as well as existence of any passage therein. When no such passage is reflected in the revenue record giving undue importance to report of Local Commissioner, who goes to the spot for a short time and with possibility of his susceptibility for giving a wrong report being there, the First Appellate Court was not justified in placing too much reliance upon the report of the Local Commissioner while drawing an inference that such passage was actually there at the spot being used by the plaintiff and while saying so ignoring overwhelming cogent and convincing evidence to the contrary available on the record.

15. Learned counsel for the appellant has stated that the partition has become final since order passed in that regard had been affirmed by Financial Commissioner Revenue Punjab vide order dated 10.8.2022, copy of which has been placed on record and an application been filed on behalf of the appellant to produce it by way of additional evidence.

 

For read the Judgment Click Here 

Jagdish Singh RSA-4130-2011(O&M) Versus Sardool Singh @ Sahurat Singh alias Suhrid Singh

 

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