TARA CHAND vs DAVINDER SINGH deceased through LRs Mehar Singh and ors

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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 590 of 2008
Reserved on: 22.8.2026
Date of Decision: 01.9.2026
Tara Chand ...Appellant
Versus
Devinder (deceased) through LRs & ors. ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes.
For the Appellant : Mr Sumit Sharma, Advocate.
For Respondents No.1(a)
to 1(f).
: Mr. Sunil Moohan Goel, Senior
Advocate, with Mr. Abhinav
Mohan Goel, Advocate.
For Respondent No.2 : Nemo.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and decree dated 16.9.2008, passed by the learned Additional
District Judge, Shimla, Camp at Rohru (learned First Appellate
Court), vide which the judgment and decree dated 12.12.2005,
passed by the learned Civil Judge (Junior Division), Court No. 1,
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Rohru (learned Trial Court) were set aside. (The parties shall
hereinafter be referred to in the same manner as they were arrayed
before the learned Trial Court for convenience) .
2. Briefly stated, the facts giving rise to the present
appeal are that the plaintiff filed a civil suit before the learned
Trial Court seeking a declaration that he is entitled to use a path
passing through the land mentioned in the head note and para-1
of the plaint, and that the defendants have no right to block the
path. A consequential relief of permanent prohibitory injunction
for restraining the defendants from blocking the path by raising
construction was also sought. It was asserted that the plaintiff
was using the path from the time of his ancestors without any
interruption from any person, and he has acquired a right to use
the path by way of prescription. Defendant No.2 started raising
construction over the path and threatened to block it. The
plaintiff requested the defendants not to do so, but in vain.
Hence, the suit was filed for seeking the relief mentioned above.
3. The suit was opposed by defendant no. 1 by filing a
written statement taking preliminary objections regarding lack
of maintainability, and cause of action, and the suit being bad
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for non-joinder of necessary parties. The contents of the plaint
were denied on merits. It was asserted that defendant No.2
exchanged the land with defendant No.1 on 15.9.2004. Defendant
No.1 raised a structure over the exchanged land. The plaintiff
filed a false suit to compel defendant No.1 to provide a path
through his land, whereas no such path exists on the suit land. A
part of the suit land touches Devidhar-Badyara road. The
plaintiff and other co-sharers want access to the road through
the suit land. The suit was filed without any basis. Hence, it was
prayed that the suit be dismissed.
4. A separate written statement was filed by defendant
No.2 taking preliminary objections regarding lack of
maintainability and locus standi . The contents of the plaint were
denied on merits. It was asserted that a portion of the suit land
was exchanged by defendant No.2 with defendant No.1.
Defendant No. 1 is in possession of the exchanged land. The suit
has been filed without any basis. Hence, it was prayed that the
suit be dismissed.
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5. Separate replications denying the contents of the
written statements and affirming those of the plaint were filed
by the plaintiff.
6. The learned Trial Court framed the following issues
on 28.2.2005: -
(i) Whether there exists an ancestral path upon the
suit land, as shown in the tatima and is using the
same for last more than 20 years, as alleged? OPD.
(ii) Whether the defendants are blocking the path, as
alleged? OPP.
(iii) Whether the plaintiff is entitled for the relief of
permanent prohibitory and mandatory injunction,
as alleged? OPP.
(iv) Whether the suit is not maintainable? OPD.
(v) Whether the suit is bad for non-joinder of
necessary party? OPD.
(vi) Whether the plaintiff has no locus standi to file the
suit? OPD.
(vii) Relief.
7. The parties were called upon to produce the evidence.
The plaintiff examined himself (PW1), Kesar Singh (PW2),
Pitamber Dass (PW3), and Hem Raj (PW4). Defendant No.1
examined himself (DW1), Lachhman Singh (DW2), Tara Chand
(DW3) and Amar Chand (DW4).
8. The learned Trial Court held that the plaintiff had
been using the path for the last 20–25 years. It was proved that
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defendant No. 1 had constructed a two-storeyed building on the
suit land. The copy of tatima (Ext.PW-4/A) showed the path. The
defendants failed to prove that the plaintiff had any alternative
path. Hence, the learned Trial Court answered Issues No. 1 to 3 in
the affirmative, Issues No. 4 to 6 in the negative, and decreed
the suit of the plaintiff.
9. Being aggrieved by the judgment and decree passed
by the learned Trial Court, the defendant Devender Singh filed
an appeal, which was decided by the learned Additional District
Judge, Shimla, Camp at Rohru (learned Appellate Court). The
learned Appellate Court held that the learned Trial Court had not
properly appreciated the evidence on record. The path was not
shown in the revenue record even though settlement had taken
place recently in the area. The plaintiff had an alternative
passage available to him. The learned Trial Court had also failed
to specify the portion which was to be demolished. Therefore,
the learned Appellate Court allowed the appeal and set aside the
judgment and decree passed by the learned Trial Court.
10. Being aggrieved by the judgment and decree passed
by the learned Appellate Court, the plaintiff filed the present
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appeal, which was admitted on substantial questions of law on
7.11.2008: -
(i) Whether appellant has pleaded and proved his
claim and the suit was rightly decreed by the
learned Trial Court, respondent No.2 having not
filed any appeal; therefore, the decree as passed by
the learned Trial Court could not be upset?
(ii) Whether appellant has pleaded and proved on
record his claim of right of use of path by
prescription and therefore, the findings of the Trial
Court are sustainable?
11. I have heard Mr Sumit Sharma, learned counsel for
the appellant/plaintiff, and Mr Sunil Mohan Goel, learned Senior
Advocate, assisted by Mr Abhinav Mohan Goel, learned counsel
for the respondents/Legal Representatives No. 1(a) to 1(f).
12. Mr Sumit Sharma, learned counsel for the
appellant/plaintiff, submitted that an application for additional
evidence was filed before the learned Appellate Court, which was
not decided. The learned Appellate Court erred in reversing the
well-reasoned judgment passed by the learned Trial Court
without assigning cogent reasons. Therefore, he prayed that the
present appeal be allowed and the impugned judgment and
decrees passed by the learned First Appellate Court be set aside.
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He relied upon the following judgments in support of his
submissions: -
(i) Murthy and others Vs. C. Saradambal and ors. (2022)
3 SCC 209;
(ii) Somakka (deceased) through LRs Vs. K.P. Basavaraj
(deceased) through LRS (2022) 8 SCC 261;
(iii) V. Prabhakara Vs. Basavaraj K. (deceased) through
LRs and anr. (2022) 1 SCC 115;
(iv) Santosh Hazari Vs. Purshottam Tiwari (deceased)
through LRs (2001) 3 SCC 179; and
(v) Balbir Singh vs. Sanjeev Kumar, RSA No. 405 of 2019,
decided on 25.82023.
13. Mr Sunil Mohan Goel, learned Senior Advocate for
the respondents, submitted that no substantial question of law
has been framed regarding the non-disposal of the application
for additional evidence. A regular second appeal can only be
decided on the substantial questions of law framed by the High
Court at the time of admission of the appeal. The application was
filed by the respondents, and only they could have been
prejudiced by its non-disposal. The appellant has no locus
standi to question the non-disposal of the application. The
learned Trial Court had failed to notice the essential ingredients
of easement by way of prescription, and the learned Appellate
Court had rightly set aside the decree passed by the learned Trial
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Court. There is no substantial question of law in the present
case. Hence, he prayed that the present appeal be dismissed.
14. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
Non-disposal of the application for additional evidence:
15. The record shows that the respondents had filed an
application for additional evidence which was not disposed of. It
was submitted that the judgment passed by the learned
Appellate Court is bad because of the non-disposal of the
application. This submission cannot be accepted. In CMP
No.13476 of 2023 in RSA No. 114 of 2020, titled Rajinder Kaur vs.
Smt. Yashoda , decided on 19.10.2023, the learned First Appellate
Court had failed to decide the application for additional
evidence. No ground was taken in the memorandum of appeal
that the judgment was bad for non-deciding the application for
additional evidence. An application was filed before the Court for
framing an additional substantial question of law regarding the
effect of non-disposal of the application. This Court held that
when no ground was made out in the memorandum of appeal,
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no substantial question of law could be framed regarding the
effect of non-decision of the application for additional evidence.
16. In the present case also, the memorandum of appeal
does not make any grievance about the non-disposal of the
application for additional evidence. Therefore, in view of the
binding precedent of this Court, it is impermissible to raise this
question while arguing the regular second appeal.
17. Even otherwise, there is force in the submission of
Mr Sunil Mohan Goel, learned Senior Advocate, that only the
respondents could have been prejudiced by the non-disposal of
the application filed by them. The appellant had not filed the
application, and he cannot raise any grievance that the
application was not decided by the learned First Appellate Court.
Hence, the submission that the decision of the learned First
Appellate Court is bad because the application under Order XLI
Rule 27 of the Code of Civil Procedure (CPC) was not decided by
the learned Appellate Court is not acceptable, and the judgment
in Balbir Singh (supra) does not apply to the present case.
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Substantial Questions of Law Nos.1 and 2:
18. The plaintiff asserted in para-2 of the plaint that the
path started from the boundary of Khasra Nos. 441 and 445 and
passes through Khasra No. 422, from where it turns near the
boundary of Khasra Nos. 441, 445, 422, to 421 and so on. The
plaintiff admitted in his cross-examination that Khasra No. 441
is owned by the defendants. The plaintiff has not specified the
necessity to go to the defendants’ land by using the path located
on their land.
19. Kesar Singh (PW-2) admitted in his cross-
examination that a PWD road is located near Khasra No. 441.
Pitamber Dass (PW-3) also admitted that the Devidhar-Badyara
motorable road is located adjacent to Khasra Nos. 441 and 445.
Thus, it is apparent from the statements of these witnesses that
the path starts from the motorable road and not from the edge of
Khasra No. 441 as claimed in the plaint. It was laid down by this
Court in Savitri Devi vs. Gauri Dutt 2000(1) S.L.J.404 that where
the path has not been properly described, a right of way cannot
be claimed. It was observed:
“At the very outset, it may be stated that there are no
specific pleadings with regard to the plaintiffs having
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acquired the right of easement of passage by way of
prescription. So much so that no point of ingress or
egress of the alleged passage has been identified. Nor is
there anything on the record to show as to what is the
direction of the passage and as to what is the width of the
passage, which is alleged to have been used by the
plaintiffs since 1943. In the absence of requisite pleadings
as to the acquisition of easementary right of passage by
way of prescription and in the absence of specific
identification of the passage, the learned First Appellate
Court has rightly held that the plaintiffs have not
acquired a right of easement of passage through the land
in dispute.”
20. Therefore, the learned First Appellate Court was
justified in holding that the plaintiff’s pleadings and evidence
were not sufficient to establish the path.
21. Pitamber Dass (PW-3) admitted in his cross-
examination that he is the owner of Khasra No. 423 located
adjacent to Khasra No. 422. He admitted that a public path
passes adjacent to his land, which is 3 meters to 6 meters wide.
He admitted that people used this path earlier. He also admitted
that everybody wants to connect to the motorable road after the
construction of the road. Pitamber Dass was put forward as a
witness of truth by the plaintiff, and his testimony is binding
upon the plaintiff. His testimony clearly shows that a common
path existed adjacent to his land, and the plea taken by the
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plaintiff that the path existed through the defendants’ land is
not acceptable.
22. The plaintiff relied upon Tatima (Ext.PW-4/A).
However, the person who had prepared the tatima did not
appear before the Court because he had expired. The plaintiff
examined Hem Raj (PW-4), who admitted in his cross-
examination that he was not aware of the spot position.
Therefore, the testimony of this witness does not prove the
authenticity of the tatima, and no reliance can be placed upon
Tatima (Ext. PW-4/A) filed by the plaintiff.
23. The plaintiff admitted in his cross-examination that
a settlement had taken place in his area and all the passages etc.
were depicted in the revenue record. The learned First Appellate
Court had rightly held that the absence of the passage in the
revenue record makes the plaintiff's version doubtful.
24. The learned Trial Court had failed to notice the
absence of specific points of ingress and egress in the pleadings
and also failed to notice the significance of the admission made
by Pitamber Dass that the common passage touched his land.
The learned First Appellate Court has rightly reversed the
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judgment passed by the learned Trial Court in these
circumstances.
25. It was submitted that respondent No. 2 had not filed
any appeal and it was impermissible for the learned First
Appellate Court to reverse the entire decree. This submission
cannot be accepted. Order XLI Rule 4 of the CPC provides that
where there are more plaintiffs or more defendants than one in a
suit, and the decree proceeds from a ground common to all, any
one of the plaintiffs or defendants may appeal from the whole of
the decree, and the Appellate Court may reverse or vary the
decree in favour of all the plaintiffs or defendants. It was laid
down by the Hon’ble Supreme Court in Ratan Lal Shah v.
Lalmandas Chhadammalal , (1969) 2 SCC 70: 1969 SCC OnLine SC
193 that the appellate Court can reverse a joint decree in an
appeal filed by one of the parties. It was observed at page 72:
3… ..Order 41 Rule 4 of the Code of Civil Procedure
provides:
“Where there are more plaintiffs or more defendants
than one in a suit, and the decree appealed from
proceeds on any ground common to all the plaintiffs or
to all the defendants, any one of the plaintiffs or of the
defendants may appeal from the whole decree, and
thereupon the appellate court may reverse or vary the
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decree in favour of all the plaintiffs or defendants, as
the case may be.”
The object of the rule is to enable one of the parties to a
suit to obtain relief in appeal when the decree appealed
from proceeds on a ground common to him and others.
The Court in such an appeal may reverse or vary the
decree in favour of all the parties who are in the same
interest as the appellant. There was some conflict of
judicial opinion in the High Courts on the question
whether power under Order 41 Rule 4 of the Code of Civil
Procedure may be exercised where all the parties against
whom a decree is passed on a ground which is common to
them are not impleaded in the appeal. The preponderance
of authority in the High Courts was that even in the
absence of a person against whom a decree has been
passed on a ground common to the appellant, the appeal
was maintainable, and appropriate relief may be granted.
It is, however, unnecessary to examine those decisions,
for, in our judgment, the question has been considered by
this Court in Karan Singh Sobti v. Pratap Chand [1963 SCC
OnLine SC 174 : (1964) 4 SCR 647] . In that case, a landlord
of certain premises filed an action in ejectment against
the tenant and the sub-tenant in respect of the premises
on the ground that the tenant had sub-let the premises
without the landlord's consent. The Trial Judge decreed
the suit holding that the landlord had not acquiesced in
the sub-letting. The sub-tenant alone appealed to the
Additional Senior Subordinate Judge, who set aside the
order of the trial court. It was urged before this Court that
the appeal by the sub-tenant to the Subordinate Judge
was incompetent, because the tenant against whom a
decree in ejectment was passed had not appealed. On
certain questions which are not material for the purpose
of this judgment, there was difference of opinion between
Sarkar, J., on the one hand, and S.K. Das, Acting C.J. and
Hidayatullah, J., on the other, but the Court unanimously
held in that case that the appeal was maintainable before
the Subordinate Judge, even though the tenant had not
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appealed against the order of the Court of First Instance.
Sarkar, J., observed at p. 663:
“The suit had been filed both against the tenant and
the sub-tenant, being respectively the Association and
the appellant. One decree had been passed by the trial
Judge against both. The appellant had his own right to
appeal from that decree. That right could not be
affected by the Association's decision not to file an
appeal. There was one decree and, therefore, the
appellant was entitled to have it set aside even though
thereby the Association would also be freed from the
decree. He could say that that decree was wrong and
should be set aside as it was passed on the erroneous
findings that the respondent had not acquiesced in the
sub-letting by the association to him. He could
challenge that decree on any ground available. The
lower appellate court was, therefore, quite competent
in the appeal by the appellant from the joint decree in
ejectment against him and the Association, to give him
whatever relief he was found entitled to, even though
the Association had filed no appeal.”
With that view, S.K. Das, Acting C.J. and Hidayatullah, J.,
agreed; see p. 652. It is true that in that case the tenant
was made a party to the appeal before the Subordinate
Judge. But the judgment of the Court proceeded upon a
larger ground that the sub-tenant had a right to appeal
against the decree passed against him, and that right was
not affected by the tenant's decision not to file an appeal.
26. This position was reiterated in Chandramohan
Ramchandra Patil v. Bapu Koyappa Patil , (2003) 3 SCC 552: 2003
SCC OnLine SC 248 wherein it was observed at page 558:
“13. This argument has no merit. In a suit for partition,
plaintiff and defendants are parties of equal status. If the
right of partition has been recognised and upheld by the
court, merely because only some of the plaintiffs had
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appealed and not all, the court was not powerless. It could
invoke provisions of Order 41 Rule 4 read with Order 41
Rule 33 of the Code of Civil Procedure. The object of Order
41 of Rule 4 is to enable one of the parties to a suit to
obtain relief in appeal when the decree appealed from
proceeds on a ground common to him and others. The
court in such an appeal may reverse or vary the decree in
favour of all the parties who are in the same interest as
the appellant. (See Ratan Lal Shah v. Firm Lalmandas
Chhadammalal [(1969) 2 SCC 70: AIR 1970 SC 108] and
Mahabir Prasad v. Jage Ram [(1971) 1 SCC 265: AIR 1971 SC
742 ])
14. Order 41 Rule 4 of the Code enables reversal of the
decree by the court in appeal at the instance of one or
some of the plaintiffs appealing, and it can do so in favour
of even non-appealing plaintiffs. As a necessary
consequence, such reversal of the decree can be against
the interest of the defendants vis-à-vis non-appealing
plaintiffs. Order 41 Rule 4 has to be read with Order 41
Rule 33. Order 41 Rule 33 empowers the appellate court to
do complete justice between the parties by passing such
order or decree which ought to have been passed or made
although not all the parties affected by the decree had
appealed.
27. Therefore, the learned First Appellate Court had the
jurisdiction to reverse the decree even in an appeal preferred by
one of the parties, and it was not necessary that all the parties
should have joined in filing the appeal.
28. In Murthy and others (supra), Somakka (supra),
Santosh Hazari (supra), and V. Prabhakara (supra), the duties of
the First Appellate Court were highlighted. In the present case,
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the learned First Appellate Court has demonstrated the flaws in
the reasoning of the learned Trial Court before reversing the
judgment and decree. Therefore, the principles laid down in the
cited judgments do not advance the case of the appellant.
29. Consequently, the learned First Appellate Court had
rightly reversed the judgment and decree passed by the learned
Trial Court, and there is no infirmity or illegality in the
impugned judgment and decree passed by the learned First
Appellate Court. The substantial questions of law are answered
accordingly.
Final order:
30. In view of the above, the present appeal fails, and it is
dismissed.
31. Pending application(s), if any, also stand(s) disposed
of.
32. Records of the learned Courts below be sent down
forthwith.
(Rakesh Kainthla)
Judge
st
1 September, 2026
(Chander)

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