Kundan Singh & Anr. v. Sohail Singh & Ors.

CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. H. S. Grewal, Advocate for the appellants. Mr. P. N. Aggarwal, Advocate for the respondents. ---

1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? ALOK SINGH, J.

The present second appeal is filed by the defendants/appellants, assailing the judgment and decree dated

12.12.1986 passed by the learned trial Court/Sub-Judge, Ist Class, Patti and judgment and decree dated 3.6.1987 passed by the learned first Appellate Court/Addl. District Judge, Amritsar, thereby dismissing the appeal of the defendants, confirming the decree passed by the learned trial Court.

The brief facts of the present case are that Kundan Singh, defendant, alongwith Joginder Kaur and Gurcharan Singh owned land measuring 234 kanals 2 marlas fully described in para one of the plaint; since the consolidation of holdings there exists a path of two karms width on the northern side of Killa Nos.24/2, 23/2, 22/2, RSA No.2577 of 1987 (O&M) 2 21/2 of rectangle No.32 for the convenience of cultivators of the co- sharers and is still in existence without any obstruction; Joginder Kaur and Gurcharan Singh sold their ½ share of the land in dispute vide three sale deeds and plaintiffs, therefore, became owners of ½ share in the khata; the plaintiffs also got the land redeemed from the mortgagees and are in possession of the land which they purchased from Joginder Kaur and Gurcharan Singh and have been using the path in dispute since then; however, the defendants threatened to demolish the path and include it in their land, hence, the suit for injunction against the defendants.

Defendants contested the suit by way of filing their written statement, pleading that Jito, Meeto and Swarni are also legal heirs of Kartar Singh and are entitled to inherit the share of Kartar Singh alongwith Joginder Kaur and Gurcharan Singh and the entries in jamabandi that Joginder Kaur and Gurcharan Singh are owners of land to the extent of ½ share, are wrong and, therefore, the alleged sale deeds by Joginder Kaur and Gurcharan Singh in favour of the plaintiffs are null and void. It is further pleaded by the defendants that land in question is exclusively owned and possessed by the defendants as the same was left by defendant – Kundan Singh for going to his own fields and the plaintiffs have no right or title to the path in dispute.

On the pleadings of the parties, following issues were framed by the learned trial Court:- “1. Whether plaintiffs have the right of way through the path way in question, as alleged?OPP.

2. If issue No.1 is proved, whether plaintiff is entitled to the injunction prayed for?OPP. RSA No.2577 of 1987 (O&M) 3

3. Whether the suit in the present form is not maintainable?OPD.

4. Relief.”

Learned trial Court decreed the suit of the plaintiffs by holding that path in dispute is a common path which is being used by all the co-sharers to cultivate the land. It was observed that there is no path way in the revenue estate of Cheema Khurd and the said path shown in shajra Ex.D1 is in the revenue estate of village Kalanjar.

Learned first Appellate Court confirmed all the facts recorded by the learned trial Court.

As to whether property in question is being used as path way to reach to respective land to cultivate it by the co-sharers and the farmers of the area i.e. plaintiffs, is a question of fact, which stood decided by the concurrent finding of fact recorded by the Courts below. No substantial question of law has been stated in the memo of appeal. It is a well settled position of law that without any substantial question of law, this Court while exercising power under Section 100 C.P.C. can not disturb the judgments passed by the Courts below. Moreover, a perusal of the record suggest that both the Courts below have committed no illegality and error in coming to the conclusion that plaintiffs have every right to use the property as path, to reach to their land, to cultivate it.

In view of the above, the appeal being devoid of merit, must fail, and the same is dismissed with costs through out. 04th March, 2010 ashish (ALOK SINGH) JUDGE