Sh. Suresh Kumar And Anr vs Sh. Kushal Singh And Ors
2021 Latest Caselaw 174 HP

     IN THE      HIGH      COURT OF           HIMACHAL PRADESH, SHIMLA
                                                          RSA No. 360 of 2018
                                                     Date of Decision: 5.1.2021.
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    Sh. Suresh Kumar and Anr.                                            .........Appellants

                                        Versus
    Sh. Kushal Singh and Ors.                                            ......Respondents





    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting1?
    For the appellants:         Mr. Suneet Goel, Advocate.





    For the respondents:        Mr. Ajay Sharma, Senior Advocate with Mr. Amit
                                Jamwal, Advocate, for respondents No. 1 and 2.
                                Mr. D.P. Chauhan, Advocate, for respondent
                                No.3.
         ____________________________________________________________________

    Sandeep Sharma, J. (Oral)

Through Video Conferencing Instant regular second appeal filed under Section 100 CPC

lays challenge to judgment and decree dated 21.5.2018, passed by the

learned Additional District Judge, Hamirpur, in Civil Appeal No. 19 of

2016, affirming the judgment and decree dated 24.2.2016, passed by the

learned Civil Judge (Jr. Div.), Court No.2, Hamirpur, District Hamirpur, H.P.,

in Civil Suit No. 120 / 2006, RBT No. 285 of 2009 & 158/12 titled Suresh

Kumar and Anr. V. Kushal Singh and Ors., whereby suit for permanent

prohibitory injunction having been filed by the appellants-plaintiffs came to

be dismissed.

Whether reporters of the Local papers are allowed to see the judgment?

2. Precisely, plaintiffs set out a case in the plaint that they have

exclusive right of passage without any obstruction or nuisance over the

.

land comprised in Khata No. 44 min, khatauni No.79 min, khasra Nos.

1166/954/1 (old 954/793/3) area 170 Sqms., out of khasra No.1166/954,

situated in Up-Mahal, Anu, Mouza Matti Tihara Tehsil and District

Hamirpur, H.P., (hereinafter referred to as the "suit land") as per

jamabandi for the year, 2002-03. Plaintiffs claimed that land in question

was purchased by them from the predecessor-in-interest of the

defendants late Sh. Harnam Singh for a valuable consideration vide

separate sale deed. Consequent upon sale deed, possession was also

given to the plaintiffs, whereupon they have also constructed their

respective houses after approval of the site/building plan by the

Municipal Council Hamirpur, H.P. As per plaintiff, defendant No.1

undertook to provide passage through the land comprised in khasra No.

954/793/3, vide his separate affidavits dated 7.4.2000/11.4.2000 in favour

of the plaintiffs. Since despite there being aforesaid undertaking,

defendants failed to provide passage, rather made an attempt to

obstruct the passage to the plaintiffs and as such, the plaintiffs were

compelled to file suit for permanent prohibitory injunction.

3. While taking specific objections with regard to maintainability,

cause of action and estoppel Defendants refuted the claim of the plaintiffs and

submitted that plaintiffs have Abadi over the land mentioned in the

plaint, but it is totally incorrect that the defendants have agreed to give

passage to the land comprising in Khasra No. 1166/954. On the basis of

.

pleadings as well as evidence adduced on record by the respective

parties, court below dismissed the suit of the plaintiffs

4. Being aggrieved and di-satisfied with the dismissal of the suit

by the learned trial court, plaintiffs preferred an appeal in the court of

learned Additional District Judge, Hamirpur, but same also came to be

dismissed vide judgment dated 25.5.2018. In the aforesaid background,

appellants-plaintiffs r have approached this court in the instant

proceedings, praying therein to allow their suit for permanent prohibitory

injunction after setting aside the judgments and decrees passed by the

courts below.

5. Though appeal at hand was admitted on substantial

questions of law No.4 and 5 as formulated at page 9 of the paper book,

but during the proceedings of the case, this Court was informed that

efforts are being made inter-se parties for amicable settlement. Today,

during the proceedings of the case, Mr. Suneet Goel, learned counsel

representing the plaintiffs, while making this court peruse application

bearing CMP No. 162 of 2021 under Order 23 Rule 3 CPC, having been

filed by the applicants/appellants, seeking therein permission to place on

record compromise arrived inter-se parties contends that since both the

parties have resolved to settle their dispute amicably inter-se them,

present appeal may be disposed of in terms of the compromise.

.

6. Learned counsel for the respondents while fairly

acknowledging factum with regard to compromise, as has been placed

on record by them by way of CMP No. 162 of 2021, fairly contend that

since parities have agreed to resolve their dispute amicably inter-se

them, they shall have no objection in case prayer made in the aforesaid

application is accepted and appeal at hand is disposed of in terms of

terms and conditions contained in the agreement.

7. Consequently, in view of the aforesaid development, now

nothing remains to be adjudicated in the present case and present

appeal is disposed of in terms of terms and conditions contained in the

compromise placed on record alongwith application bearing CMP No.

162/2020, accordingly, impugned judgments and decrees passed by the

court below are quashed and set-aside. Terms and conditions of the

compromise are made part of this order and shall be adhered to by the

parties to the lis. It is made clear that in case needful in terms of terms

and conditions are not done by the parties, instant appeal would get

revived. Interim order, if any, stands vacated. Pending applications, if

any, also stand disposed of accordingly.

Copy dasti.

    5th January, 2021                                 (Sandeep Sharma),
     manjit                                                 Judge.