the evidence led on record by the respective parties that
water sources existed in khasra No.27 owned by the
defendants, Court below have rightly held that the
plaintiff have no right to take away the water from khasra
No.27 by way of easement of prescription. Plaintiff has
miserably failed to prove on record that they as well as
their predecessor have been using this water from the
sources for continuously for more than 20 years as a right
openly and peacefully. In the present case, it clearly
emerge from the evidence led on record as well as
averments contained in the plaint that plaintiff has not
been able to prove on which part of khasra number water
sources exists. Both the Courts below have rightly
concluded that plaintiff has not been able to prove his
right by easement, if any, and as such, this Court sees no
illegality and infirmity in the judgment passed by both the
courts below.
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
RSA No.336 of 2005
Date of Decision: 5th August,2016
Ram Nath V Bansi Lal & others
Coram:
The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Citation:AIR 2016 (NOC) 706 HP
Instant Regular Second Appeal filed under
Section 100 of the Code of Civil procedure is directed
against the judgment and decree dated 31.3.2005, passed
by learned Additional District Judge, Shimla, District
Shimla, H.P., affirming the judgment and decree dated
8.12.2000, passed by learned Sub Judge Ist Class, Theog
in Civil Suit No.543/1 of 1994.
2. The brief facts of the case are that the plaintiffappellant
(hereinafter referred to as the ‘plaintiff’) filed suit
for permanent prohibitory injunction restraining the
Whether reporters of the local papers may be allowed to see the judgment?
defendants and their family members from interfering in
the supply of water from two sources situated in Chak
Snahoo. Plaintiff averred in the plaint that he is recorded
owner in possession of land denoted by khasra Nos.
156/41, 163/41, 164/41, 39 and 40 in Chak Snahoo,
Pargana Palana, Tehsil Theog, District Shimla, H.P.,
alongwith others, but in pursuance of family arrangement
the said land is in his exclusive possession. It is also
averred in the plaint that on khasra No.40 there was an
old house and which was recently dismantled and a new
house is under construction. There is the land of the State
of H.P. comprised in khasra No.174/14, adjacent to the
land of the plaintiff and below this land, there is Ghasni of
defendant No.2 comprised in khasra No.27. Plaintiff further
averred that there are two water sources in khasra
No.174/14 and both the sources are at a distance of near
about 2/3 metres from each other and water from these
sources flow down towards khasra No.27. As per plaintiff,
there are rocks and bushes on the boundary of khasra
No.27 and khasra No.174/14. Earlier the water from these
sources were tapped through khul upto khasra No.40,
however, from the last more than 25 years the water was
brought through alkhathin pipes laid through khul and as
such, this right is being enjoyed as of right, openly,
peacefully and without any interruption from the last more
than six decades. Plaintiff further averred that in view of
the above, defendants have no right to interfere in the
enjoyment of such rights. Plaintiff has also averred in his
plaint that defendants have even tried to disrupt the water
supply on 17.5.199, compelling him to institute a case
under Section 107 Cr.P.C against defendant No.3 and his
wife. According to the plaintiff, cause of action accrued in
his favour and against the defendants about two days
back when defendants No.1, 3 and 4 tried to remove the
pipes of the plaintiff and as such, he was constrained to
file the suit.
3. Defendants, by way of filing joint written
statement refuted the averments contained in the plaint.
But perusal of the averments contained in the written
statements suggests that the defendants admitted that
there was an old house of the plaintiff over khasra No.40
and now new construction of the house is being raised.
Defendants specifically denied that khasra No.174/14 is
adjacent to the land of the plaintiff and stated that khasra
No.174/14 is abutted to the land of defendants No.1 and 2
from the lower side, which is denoted by khasra No.27.
Defendants also denied that two water sources exists on
khasra No.174/14, rather claimed that water sources
exists over khasra No.27. The defendants specifically
denied that the plaintiff or his predecessor-in-interest ever
used water from these sources and at present water is
being taken through alkhathin pipes. Defendants also
stated that a false case under Section 107 Cr.P.C was filed
by the plaintiff since there was no disturbance of the water
supply to him.
4. By way of replication, plaintiff while denying
the allegations made in the written statement, re-affirmed
and reasserted the stand taken in the plaint. In replication,
he further clarified that two water sources are situated six
or seven metres away from the boundary of khasra No.27
and the water from there flows down towards khasra
No.27, where it has been tapped by the plaintiff.
5. On the pleadings of the parties, the learned
trial Court framed the following issues:-
“1. Whether there are two water
sources over khasra No.174/14?
OPP.
2. If issue No.1 is proved in affirmative
whether the water from those two
water sources flow to khasra No.27?
OPP.
3. Whether the plaintiff is entitled to
take away water from khasra No.27
by way of easement of prescription?
OPP.
4. Whether the plaintiff is entitled for
the relief of permanent prohibitory
injunction? OPP.
5. Relief:-
6. The learned trial Court decided all the aforesaid
issues against the plaintiff and accordingly dismissed the
suit. The appeal preferred by the plaintiff before the
learned Appellate Court was also dismissed. Hence, the
present appeal.
7. This Regular Second Appeal was admitted on
the following substantial questions of law:-
“(1) Whether the pleadings of the parties , the
plaint, replication have been construed in
pedantic manner and it has been wrongly
found that the plea of acquisition of right to
water from khasra number 27 by
prescription had not been pleaded though
on a proper construction of the pleadings,
a clear case of acquisition of prescription
rights was made out and in any event, the
pleadings have been pedantically
construed and a wrong inference raised not
warranted on the material on record?
(2) Whether the findings are not in accordance
with the provisions of Order 20 Rule 5 of
the C.P.C and the binding judgment of this
Court reported in AIR 2000(1) H.P. Om
Prakash v. State of H.P.”
8. It may be noticed that keeping in view the
nature of controversy i.e. water dispute involved in the
present case, this Court deemed it fit to send the matter
for mediation and accordingly vide order dated 10.5.2016,
matter was sent for mediation, however the fact remains
that the parties could not arrive at amicable settlement
and as such, matter was listed for final hearing vide order
dated 28.6.2016.
9. Mr. K.D.Sood, learned Senior Advocate duly
assisted by Mr. Mukul Sood, Advocate representing the
appellant, vehemently argued that the judgments passed
by both the Courts below are not sustainable being
perverse, based on misreading of oral and documentary
evidence as also pleadings of the parties and as such,
same deserve to be quashed and set-aside. Mr. Sood,
strenuously argued that bare perusal of the judgments and
decree passed by both the Courts below shows that the
evidence led on record by the plaintiff have not been read
in its entirety by the Courts below and as such, judgments
being not based upon the correct appreciation of the
evidence available on record deserve to be quashed and
set-aside. Mr. Sood, also contended that both the Courts
below have erred in law while holding that the water
springs were not in khasra No.174/2 but on khasra No.27
and as such, plaintiff did not have the exclusive right to
take the water from the said two water springs. As per Mr.
Sood, learned Courts below have failed to acknowledge
the fact that, if it is presumed that water springs were in
khasra No.27, even then the plaintiff had pleaded that he
has the exclusive rights of water from the two water
springs, which was being used by him and his
predecessors since generation for drinking water, water
for the cattle and for gardening the vegetable etc. and as
such, a clear cut case of acquisition of rights by
prescription was made out and the Courts below have
fallen in error while holding that the plaintiff did not claim
rights of prescription or set up such a case in the
pleadings.
10. Mr. Sood, forcibly contended that the pleadings
of the parties have not been construed in its right
perspective because bare perusal of the plaint and
replication filed by the plaintiff clearly suggest that the
plaintiff had carved out a clear cut case of easementary
rights to take water from water springs and as such,
Courts below erred in construing pleadings so technically
and strictly ignoring the fact that it was a clear case where
claim of easementary rights by prescription has been
made out by the plaintiff. Mr. Sood, forcibly contended
that learned District Judge, which is a Court of fact has
erred in law in not independently and critically examining
the oral as well as documentary evidence in the case and
the entire approach of the Court below to the facts and
circumstances of the case is erroneous and the issues
framed in the case have not been satisfactorily and
independently decided, as required under Order 29 Rule 5
of CPC, as held in AIR 2000(1) H.P Om Prakash versus
State of Himachal Pradesh. He also stated that wrong
assumptions have been drawn from the facts and the
findings are based on pure surmises and conjecture. The
report of the Kanungo that the water spring was not on
khasra No.174/2 but on khasra No.27 did not in any way
mitigate the case of the plaintiff to the exclusive rights,
which was being claimed by the plaintiff openly,
continuously as of right for a period of more than 20 years
and as such, he prayed for setting aside the judgments
and decree passed by both the Courts below.
11. Mr. G.D.Verma, learned Senior Advocate duly
assisted by Mr. B.C.Verma, Advocate, supported the
judgments and decree passed by both the Courts below.
Mr. Verma, vehemently argued that bare perusal of the
judgments and decree passed by learned Courts below
clearly suggest that same are based upon the correct
appreciation of the evidence available on record and as
such, no interference, whatsoever, of this Court is
warranted in the facts and circumstances of the case. Mr.
Verma, also stated that this Court has very limited power
to re-appreciate the evidence especially when both the
Courts below returned concurrent findings. Mr. Verma,
while concluding his arguments, categorically stated that
the plaintiff miserably failed to prove his case by leading
cogent and convincing evidence and as such, both the
Courts below have rightly dismissed the suit filed by the
plaintiff and prayed for dismissal of the present appeal.
12. I have heard learned counsel for the parties and
have gone through the record of the case.
13. This Court while admitting the appeal framed
two substantial questions of law, as referred hereinabove.
Perusal whereof, clearly suggest that this Court needs to
determine whether averments contained in the plaint and
replication filed by the plaintiff were construed in pedantic
manner and plea of acquisition of right to water from
khasra No.27 by prescription was made out by the plaintiff
in his plaint or not. This Court also needs to explore
whether Courts below adopted hypotechnical approach
while ignoring the aforesaid plea of acquisition of right of
water taken by the plaintiff in his pleadings or not.
Similarly, this Court would be examining whether the
Courts below failed to return findings on the issues framed
in the case independently ignoring the provisions of law as
initiated under Order 29 Rule 5 of CPC as well as law laid
down by this Court in AIR 2000(1) H.P. Om Prakash versus
State of H.P.
14. Admittedly, both the Courts below have
returned concurrent findings that there is no credible
evidence to prove that water is/was being used by plaintiff
for the last more than Twenty years and as such, this
Court in view of the law laid down by Hon’ble Apex Court
in catena of cases, has very limited scope to re-appreciate
the evidence to ascertain the correctness and genuineness
of concurrent findings returned by both the Courts below,
unless same are perverse. However, this Court solely with
a view to answer substantial questions of law framed at
the time of admission of the appeal as well as to ascertain
that judgments passed by both the Courts below are not
perverse and same are based upon correct appreciation of
evidence would be looking into the material evidence led
on record by the respective parties.
15. Plaintiff by filing suit for perpetual injunction
claimed that he is recorded owner in possession of land
comprised of khasra No.156/41, 163/41, 164/41, 39 and
40 in Chak Snahoo, Pargana Palana, Tehsil Theog, District
Shimla, H.P alongwith other co-sharers and claimed
himself to be in exclusive possession of land by way of
family arrangement. Plaintiff also stated that khasra No.40
is abadhi and rest of the land is cultivated land. The
plaintiff and his predecessors had an old house in khasra
No.40 since decades but now after dismantling the same,
a new house is under construction. As per the plaintiff,
defendants No.3 and 4 use exclusively the water for
drinking, watering cattle and for other purposes from a
different water source situated near their house. However,
it would be profitable to reproduce para-3 of the plaint
herein:-
“ That adjacent to the land of the plaintiff is
khasra No.174/14 which is charand land and in
the ownership of the Sate, below this charand is
the Gashani of defendant No.2 compromised in
khasra No.27 of Chak Snahoo. There are two
small water sources in the Charand land above
khasra No.27. The both sources are at a distance
of about 2/3 meters from each other, which flow
down towards Grass land of defendant No.2. On
the boundary of khasra No.27 and charand land
there are chain of rocks and bushes. The water
sources referred above in this para are in
exclusive use of the plaintiff and his
predecessors since generations beyond the
memory of living generation for drinking,
watering cattle and growing vegetable etc.
Previously, water of these two sources were
tapped through khul and partly cut in the rocks
to the house of the plaintiff and his predecessor
upto khasra No.40 of chak Snahoo. There was
water pond also but for the last more than 25
years the water was brought through alkhathin
pipes laid through the khul, as of right, openly
peaceably without any interruption for the last
more than 6 deceases either through charand or
khasra No.27 as an easement exclusively for
the beneficial enjoyment of the plaintiff and his
predecessor or servants etc. The defendants or
their predecessors never used the water of
these two sources at any time and have no right
to use the same or disrupt the water supply from
the said sources for exclusive use of the plaintiff,
henceforth these sources are described as suit
sources.”
16. Defendants by way of written statement
contested the averments contained in para-3 as referred
hereinabove, wherein they stated as under:-
“ It is denied that the Charand land denoted by
khasra No.174/14 is adjacent to the land of the
plaintiff. Said Charand is abutted by the land of
the defendants No.1 and 2 from the lower side
and from one side it is abutted by the land of
Smt. Debkoo etc. It is admitted that below this
charand there is Ghasani of the defendants No.1
and 2 denoted by khasra No.27. It is wrong and
denied that there are two small water
concoction on the part of the plaintiff, said water
sources are in the land of the defendants No.1
and 2 denoted by khasra No.27. It is wrong and
denied that there are to small water sources
referred and his predecessors, the plaintiff never
used the water of said sources. The defendants
No.1 and 2 are taking the water from the said
sources, through the Alkhathin pipe, they have
also constructed the tank for the same. It is
denied that previously the water of these
sources were tapped through khool as alleged. It
is denied that for the last 26 years the water
was brought through Alkathin pipes, this is all
concocted on the part of the plaintiff. The
plaintiff has not come with clean hands and has
concocted the false theory of long use etc. when
in fact he never used the water of these sources
which are in the land in the possession of the
defendants No.1 and 2. The assled easement is
wrong and denied.”
17. Careful perusal of the averments contained in
the written statement, suggest that the defendants denied
that the charand land denoted by khasra No.174/14 is
adjacent to the land of the plaintiff and claimed that
charand is abutted to the land of defendants No.1 and 2
from the lower side and from one side it is abutted by the
land of Smt. Debkoo etc. Defendants admitted that below
charand, there is Ghasani of defendants No.1 and 2
denoted by khasra No.27. It is denied that there are two
small water sources in the charand land above khasra
No.27.It is further denied that the water sources referred
in this para are in exclusive use of the plaintiff and his
predecessors as they never used the water of said
sources. Defendants specifically stated that they are
taking the water from the said sources through alkathin
pipe. The defendants specifically stated that since plaintiff
never used the water of these sources, which are in the
land in possession of the defendants No.1 and 2, the claim
of easementary rights is wrong and denied.
18. Learned trial Court below with a view to
ascertain, on which land water sources exists, framed
issue No.1 whether there are two water sources over
khasra No.174/14 and examined the issue with the help of
revenue record, wherein State of H.P. is recorded as the
owner of the land comprised in khasra No.174/14 and the
defendants are recorded co-owners alongwith others in the
land denoted by khasra No.27. In nutshell, the claim of the
plaintiff that there are two water sources in land
comprised khasra No.174/14 and the water from there
flows down to khasra No.27 and from where he has tapped
the water to his house situated over khasra No.40,
whereas defendants while denying the case of the plaintiff
have stated that these two water sources are situated in
khasra No.27 and no water has been channelized by the
plaintiff to his house.
19. In the present case, plaintiff with a view to
substantiate his claim appeared as PW-2 and reiterated
the averments contained in the written statement.
However, in his cross-examination he admitted that water
sources are situated in khasra No.27 and he had got
demarcation of the said land. He also admitted that DW-3
had given the report Ex.DA showing that the water sources
are situated in khasra No.27. Plaintiff categorically
admitted the correctness of Ex.DA i.e. report, by making
statement Ex.PX at the time of demarcation. Admittedly,
he has nowhere stated that the water sources are situated
in khasra No.174/14. Since plaintiff has not crossexamined
DW-3 to show that the demarcation has not
been conducted in accordance with law, same needs to be
presumed to be carried out in accordance with law.
Moreover, DW-3 has categorically described that as to
how he had conducted the demarcation and as such,
correctness of Ex.DA cannot be challenged. Admittedly,
DW-3, who demarcated the land is not a revenue officer,
who was entitled to demarcate the land as per Section 107
of the H.P. Land Revenue Act. But, since plaintiff never
challenged the authenticity of the report, there was no
occasion whatsoever, for the learned Court to reject the
same. Since plaintiff failed to prove that the water sources
are situated in khasra No.174/14, Courts below rightly
relied upon the report Ex.DA of DW-3, wherein he
categorically stated that water sources is situated over
khasra No.27 owned by the defendants.
20. Though, plaintiff set up a case that there are
two water sources in land comprised khasra No.174/14
and the water from there flows down to khasra No.27 but
as emerge from his statement, wherein he categorically
admitted that water sources are situated over khasra
No.27.Similarly, PW-2 did not state about two water
sources, rather he referred only to one water source which
is situated in government land. Careful perusal of the
statement of PW-3 also not suggests that out of two water
sources, the water of which source is being used by
plaintiff. On the other hand, DW-1 and DW-2 categorically
stated that there are two water sources in khasra No.27.
About the distance between the house and the said water
sources, the plaintiff or his witnesses have not stated
anything. DW-1 stated that distance between house and
the said water sources is about five or six metres, however
DW-2 stated that the distance is near about 30 to 35
metres. Though, there are variation with regard to
distance between two water sources in the statements
given by DW-1 and DW-2 but interestingly, no crossexamination
has been conducted on this point by the
plaintiff. Record further reveals that at the time of
demarcation, plaintiff nowhere raised the plea with regard
to existence of any water sources in khasra No.174/14 and
in his cross-examination he admitted that water sources
are situated in khasra No.27.
21. After reading the statements of DW-1 and DW-
2, it clearly stand established on record that two water
sources are situated in khasra No.27 and plaintiff has not
been able to prove that any water sources are situated
over khasra No.174/14, where upon the State of Himachal
Pradesh has been recorded as owner of the land. Since the
plaintiff has miserably failed to prove that the water
sources exist/ situated on khasra No.174/14, plaintiff could
not claim the same as a matter of right. Moreover, it was
incumbent upon the plaintiff to prove his right to use the
water to succeed in the suit.
22. Even perusal of the pleadings contained in the
plaint suggest that it has been specific stand of the
plaintiff that the water comes to khasra No.27 and from
where he has tapped the same by using alkhathin pipes. It
has been also stated that earlier the water was taken
through khul and now for the last about 25 years the water
is being brought through alkhathin pipes laid through the
khul. Though, it has been pleaded in the plaint that water
is being used from the time immemorial i.e. more than six
decades but PW-2 stated that they are using the water
from the last 30-35 years. In his statement, he also stated
that the water has been channelized through Khul and the
wooden pipe. Whereas PW-2 in his statement stated that
for the last 15-20 years the water has been taken through
pipes. PW-3 stated that earlier water was being used by
Mangle and Sadhu, who were the tenants over the said
land. In the cross-examination, these witnesses have
admitted that now days there are water pipes of
defendant No.1 to tap the water, however, PW-2 has
stated that defendant No.1 has tapped the water of
second source. PW-2 also stated that water of second
sources is also being used by him. However, PW-3 has
gone one step forward by stating that now the pipes of
defendants are there.
23. Whereas, careful perusal of statements of DW-1
and DW-2 clearly suggest that water from these two
sources was not used by the plaintiff. The learned trial
Court below has rightly taken note of the suggestion put to
DW-2 on behalf of the plaintiff that house of the defendant
is situated 2 or 3 KM away from the disputed water
sources from where he has taken the water through pipe.
24. Conjoint reading of the statements of PW1 to
PW-3, nowhere suggest that they have been using water
from any of these two sources mentioned by them in their
plaint, rather it has come in the evidence that land of
many persons are situated nearby and they could also the
best witnesses on this point. Whereas DW-1 and DW-2
have very consistent and specific in stating that two water
sources situated over the land comprised khasra No.27
and same are being used by them and at no point of time
plaintiff and their predecessor used water from that source
by tapping the same by way of alakthin pipes.
25. Apart from above, it is well established that to
claim right, if any, under Section 15 of the Indian
Easement Act, 1882, continuous use for 20 years as a right
to do the act complained of in assertion of title, openly, as
of right and peaceable must be pleaded in unambiguous
term. But in the instant case since plaintiff has not been
able to prove that from which khasra number water is
flowing, his plea of easement by prescription cannot be
accepted.
26. Plaintiff with a view to claim easementary rights
was under obligation to show on which khasra number
water sources are situated. But as has been discussed
above, though plaintiff tried to prove that these water
sources are situated over khasra No.174/14 by stating the
same in the plaint, but perusal of statements made by
plaintiff witness before the Court clearly suggest that they
have not been able to prove that the water sources are
situated in khasra No.174/14, rather PW-1 categorically
stated that water sources are situated in khasra No. 27.
27. Since plaintiff was unable to show that the
water sources are situated in khasra No.174/14, his claim
of having easementary right by way of prescription was
rightly not appreciated by the Courts below. Interestingly,
plaintiff nowhere in his pleadings averred that water
sources in question situated in khasra No.27 and he
acquired easementary rights by way of prescription to use
water from the sources, rather it has been stated that
adjacent to the land of the plaintiff is khasra No.174/14,
which is charand land in the ownership of the State. Even
perusal of para-3 as has been reproduced hereinabove of
the plaint, nowhere suggest that plaintiff specifically
stated that water sources existed on khasra No.174/14,
rather it has been stated that below khasra No.174/14
there is ghashani over khasra No.27, meaning thereby at
no point of time plaintiff was aware on which khasra
number two water sources existed.
28. Pleadings made in the plaint as well evidence
led on record by plaintiff nowhere suggest that he has
prescriptive easementary right to take water from two
sources through the land comprised in khasra No.27.
29. Apart from above, plaintiff has been not able to
prove any right of water from the sources situated on
khasra No.27 by leading cogent and convincing evidence
and as such, this Court sees no illegality and infirmity in
the findings of both the Courts below . Hence, this Court is
of the view that both the Courts have rightly refuted that
the plea of plaintiff qua acquisition of water from khasra
No.27 and as such, substantial question is answered
accordingly.
30. This Court also examined another contention
put forth on behalf of the plaintiff that learned trial Court
below failed to comply with the provisions of Order 20
RuLe 5 C.P.C., while deciding the issues. It has been
contended on behalf of the plaintiff that no independent
findings qua each issues have been returned by the
learned trial Court, which is mandatory in terms of the
aforesaid provisions of law. But aforesaid contention put
forth on behalf of the plaintiff also deserve outright
rejection solely for the reasons that this Court while
examining/exploring the answer of substantial questions of
law had an occasion to sift the entire evidence to ascertain
correctness and genuineness of the averments contained
in the plaint, wherein this Court found that learned trial
Court specifically dealt with each and every issue and
arrived at a conclusion that plaintiff has been not able to
prove that two water sources existed over khasra
No.174/14 while answering issue No.1 that whether two
sources over khasra No.174/14 exists. Since, it emerged in
the evidence led on record by the respective parties that
water sources existed in khasra No.27 owned by the
defendants, Court below have rightly held that the
plaintiff have no right to take away the water from khasra
No.27 by way of easement of prescription. Plaintiff has
miserably failed to prove on record that they as well as
their predecessor have been using this water from the
sources for continuously for more than 20 years as a right
openly and peacefully. In the present case, it clearly
emerge from the evidence led on record as well as
averments contained in the plaint that plaintiff has not
been able to prove on which part of khasra number water
sources exists. Both the Courts below have rightly
concluded that plaintiff has not been able to prove his
right by easement, if any, and as such, this Court sees no
illegality and infirmity in the judgment passed by both the
courts below. Accordingly substantial questions of law are
answered accordingly.
31. This Court sees no irregularity and infirmity, if
any, in the judgments passed by the courts below, rather,
same are based upon correct appreciation of the evidence
available on record. This Court is fully satisfied that both
the courts below have very meticulously dealt with each
and every aspect of the matter and there is no scope of
interference, whatsoever, in the present matter. Since
both the Courts below have returned concurrent findings,
which otherwise appear to be based upon proper
appreciation of evidence, this Court has very limited
jurisdiction/scope to interfere in the matter. In this
regard, it would be apt to reproduce the relevant contents
of judgment rendered by Hon’ble Apex Court in
Laxmidevamma and Others vs. Ranganath and Others, (2015)4
SCC 264, herein below:-
“16. Based on oral and documentary evidence, both
the courts below have recorded concurrent findings
of fact that plaintiffs have established their right in
'A' schedule property. In the light of concurrent
findings of fact, no substantial questions of law arose
in the High Court and there was no substantial
ground for re-appreciation of evidence. While so, the
High Court proceeded to observe that the first
plaintiff has earmarked the 'A' schedule property for
road and that she could not have full fledged right
and on that premise proceeded to hold that
declaration to plaintiffs' right cannot be granted. In
exercise of jurisdiction under Section 100 C.P.C.,
concurrent findings of fact cannot be upset by the
High Court unless the findings so recorded are shown
to be perverse. In our considered view, the High
Court did not keep in view that the concurrent
findings recorded by the courts below, are based on
oral and documentary evidence and the judgment of
the High Court cannot be sustained.”
32. Consequently, in view of the discussion made
hereinabove, this court is of the view that the judgments
passed by both the courts below are based on correct
appreciation of the evidence made available on record
and as such calls no interference of this court and
accordingly, same are upheld.
Accordingly, the present appeal is dismissed
alongwith the pending applications if any.
(Sandeep Sharma )
August 5, 2016 Judge (shankar)
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