JUDGMENT
A.M. Mir, J.
1. This second civil appeal
is directed against a judgment and decree
passed by District Judge, Udhampur on 17-
5-1995. The impugned judgment and decree
has reversed the judgment and decree of
Munsiff (District Mobile
Magistrate) Udhampur passed on 22-11-
1989.
2. The facts in brief are that the predecessor -in-interest of the appellant filed a suit for permanent injunction for restraining the predecessor-in-interest of respondent (Krishan Dass) from interfering into 8 feet wide common lane existing between the houses of the parties and from raising any construction on this lane, so as to deprive them of their right to light, air and passage of water. Similarly a relief was prayed against the defendant restraining him from dumping his ‘Malba’ in the lane. Suit was filed on 16-11-1979. In the written statement the defendant denied existence of any lane. The factum of existence of any pipeline through that lane was also denied. The trial Court on the pleadings of the parties framed following issues :–
1. Whether in between the houses of the plaintiff and the defendant a public lane 8 wide exists?
2. On proof of issue No. 1 whether the plaintiff has any easementary right of light, air and water outlet over the lane?
3. On proof of issue Nos. 1 & 2 whether the defendant has obstructed the public lane by dumping debris thereon?
3. The trial Court, on the strength of evidence on record, decided issues Nos. 1 & 2 in favour of the plaintiff and decreed the suit. As a result a mandatory injunction in favour of the plaintiff and against the defendant was passed commanding the defendant to remove all the debris accumulated along side the house in the lane existing towards east of the house of the plaintiff and also allowed the plaintiff to enjoy and use the said lane ‘Gali’ as a thoroughfare and not to interfere his right to light and air through that lane. A perpetual injunction was also granted restraining the defendant from obstructing the flow of water etc. etc.
4. Aggrieved of this judgment and decree the defendant-respondent took an appeal before the first appellate Court which, vide impugned decree and judgment, allowed the appeal and reversed the trial Court’s judgment and decree, resulting into dismissal of the suit with costs.
5. Mr. P.S. Dutta’s vehement argument was that this being a second appeal, the Court cannot go to re-appreciate the evidence and set aside the findings on such re-appreciation. According to him no question of law was involved and as such the appeal was not maintainable. Reliance was placed upon the following authorities :–
(i) Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, AIR 1999 SC 864.
(ii) Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, AIR 1999 SC 2213.
(iii) Ms. Labanya Neogi (through LRs.) v. W. B. Engineering Co., AIR 1999 SC 3331.
(iv) Roop Singh v. Ram Singh, AIR 2000 SC 1485.
6. I have considered these authorities. I have seen that this argument is generally, taken in second appeals, therefore, before dealing with the case, I would like to refer to Section 100 of the Code of Civil Procedure, which relates to second appeals.
7. Section 100 ordains that a second appeal shall lie, only where the High Court is satisfied that the case involves a substantial question of law. Section 101 lays down that no second appeal shall lie except on the ground mentioned in Section 100. However, to this general rule Section 103 makes out an exception of empowering the High Court, to determine issues of fact which have not been determined and about which sufficient evidence is available on record, or which have wrongly been determined by the lower Court or Courts.
8. Now going to the above referred authorities. We find that in Dnyanoba Bhaurao Shemade’s case reported in AIR 1999 SC 864, their Lordships of the Supreme Court found that the High Court, while deciding a second appeal, had not formulated the substantial quest ion of law and decided the appeal without referring to any such substantial question of law. This is how their Lordships held that without following the procedure as laid down in Section 100 of the Code of Civil Procedure, no second appeal could be decided. In this behalf I would like to refer to para 11 of the judgment, which reads as under :–
“A mere look at the said provision shows that the High Court can exercise its jurisdiction under Section 100, CPC only on the basis of substantial question of law which are to be framed at the time of the admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned single Judge. It is held by a catena of judgments by this Court, some to them being, Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438 : (1997 AIR SCW 2459) and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 : (1998 AIR SCW 2923), that the judgment rendered by the High Court under Section 100, CPC without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed.”
9. Obviously this was not a case of judgment being perverse. On the other hand the defect in the case was that the procedure as laid down in Section 100 was not adopted. Therefore, this judgment is distinguishable and not relevant.
10. The next judgment referred to was AIR 1999 SC 2213. This judgment with all its strictness wants to apply the rigour of lest of existence of a substantial question of law before entertaining a second appeal. This judgment, however, also does not relate to a case where the Court/Courts below have committed a travesty of law by wrongly appredating evidence. This judgment also speaks of those questions which already stand answered by higher Courts. The purport of this judgment is not to rake up a question which already stands adjudicated by a superior Court because that question for purposes of Section 100 will not be a substantial question of law. Suffice to say that this judgment also is distinguishable from the present case and is not relevant.
11. Then comes the case of Labanya Neogi v. W.B. Engineering Co., reported in AIR 1999 SC 3331. The pure question of fact before the Court in this eviction suit was whether the landlord required the premises for personal use and occupation. The trial Court decreed the suit holding that the suit premises were required for personal use and occupation by the landlady. The lower appellate Court reversed the finding. It re-appreciated the whole evidence on record and gave a cogent reasoning in support of the judgment of reversal. It was in this backdrop that the finding of the High Court that the evidence needed re-apprisal in second appeal was upheld. Be it again mentioned that no question of perversity of judgment was involved.
12. Lastly Mr. Dutta relied upon Roop Singh v. Ram Singh, reported in AIR 2000 SC 1485. In this case also both the Courts below had properly appreciated the evidence and material on record and there was no perversity, illegality or irregularity. Both the Courts had, on the basis of cogent evidence, come to the conclusion that defendant got the possession of the suit land as a lessee under a ‘Batai’ agreement, thus the Court held that the question of adverse possession would not arise as the same was permissive. It was how the Apex Court set aside the order of the High Court which had intefered in such findings of fact in second appeal. I am tempted to reproduce para No. 7 of this judgment, which is most germane :–
“It is to be reiterated that under Section 100 of the CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve substantial question of law and it does not confer any jurisdiction on the High Court to intefere with pure questions of fact while exercising its jurisdiction under Section 100, CPC. That apart, at the time of disposing of the matter the High Court did not even notice the question of law formulated by it at the time of
admission of the second appeal as there is no reference of it in the impugned judgment. Further, fact finding Courts after appreciating evidence held that defendant entered into the possession of the premises as a batai, that is to say, as a tenant and his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded by two Courts below were based on proper appreciation of evidence and material on record and there was o perversity, illegality or irregularity in those findings. If the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession. (Re : Thakur Krishan Singh (Dead) v. Arvind Kumar, (1994) 6 SCC 591 : 1994 AIR SCW 408 : AIR 1995 SC 73. Hence the High Court ought not to have interfered with the findings of fact recorded by both the Courts below.”
13. A perusal of the above para shows that the High Court could not interfere because the findings of the two Courts below were based on correct appreciation of evidence and material and there was no perversity, illegality or irregularity. It is evident and clear that in case the findings of the two Courts below or either of them would be perverse, illegal or irregular, the interference of the High Court would have been justified, para 8 of the same judgment also lays down though in implied manner that if proved documents are not taken into account, in that case the judgment will be perverse and High Court could interfere. Para No. 8 of the judgment read as under :–
“It also appears that the High Court has ignored the finding of fact to the effect that defendant has failed to prove the so-called agreement to sale in his favour. He has not produced on record the said sale deed or a letter executed by the plaintiff in favour of the defendant or his brother. The Appellate Court has further observed that defendant has not led the evidence of the witnesses in whose presence the said document was executed. In our view, there being no document on record, the alleged contents of the deed could not have been considered by referring to the oral say of the defendant.”
14. This judgment, in my opinion does not help the respondents but on the other hand openly suggests that wherever a judgment of the lower Court or the 1st Appellate Court is perverse, illegal or improper and where material which is admissible and proved is not taken into account, the High Court can interfere with such judgment while exercising jurisdiction in terms of Section 100 of the Code of Civil Procedure.
15. Supreme Court on the subject has been clear. After the 1976 amendment, the scope of interference with findings of fact under Section 100 CPC came up for consideration in case titled Dilbaghrai Punjabi v. Sharad Chandra, reported in 1988 Supp SCC 710 : (AIR 1988 SC 1858). In this case the admission made by the defendant-tenant in his reply notice was not taken into account by the trial Court and also the 1st Appellate Court. While dealing with the obligations of the First Appellate Court, the Apex Court held that wherever the First Appellate Court fails to discharge the duty of considering important evidence having direct bearing on the disputed issue, such omission can give rise to a substantial question of law. Their Lordships held (para 5 of AIR) :–
“Mr. Kacker strongly urged that the concurrent finding of fact recorded by the first two Courts was binding on the High Court under Section 100 of the Code of Civil Procedure and its reversal is illegal. We have gone through all the three judgments and some of the documents placed before us by the learned counsel for the parties and we find that the High Court was not correct in assuming that the plaintiff had failed to assert in the plaint his ownership of the disputed shop. The necessary pleading is to be found in paragraph 1 of the plaint, which of course was denied in the written statement and the parties led their evidence on this question at the trial. It is true that the partition deed under which the plaintiff claims exclusive title to the property was not produced in Court, but the first appellate Court was under a duty to consider all the relevant evidence led by the parties along with the circumstances. Unfortunately neither the Civil Judge who tried the suit nor the Additional District Judge confirming the decision of the trial Court adverted to important items of relevant evidence which were considered and
relied upon by the High Court.”
16. Subsequently the scope of powers exercisable by the High Court came up for consideration before the Supreme Court in case titled Jagdish Singh v. Nathu Singh, reported in (1992) 1 SCC 647 : (AIR 1992 SC 1604). Here in a suit for specific performance, the High Court of Allahabad found that the two Courts below had not taken into account, notices issued by the plaintiff to the defendant before institution of the suit, informing him that he was ready to perform his part of the agreement. The notices were received back unserved as the defendant had refused to accept the same. The High Court for non-consideration of the averments made in the notice by the two Courts below held that the judgments were perverse and reversed the concurrent findings of fact. Venkatachallah, J. (as his lordships then was) speaking for the Court held that High Court was fully justified in its action. The Court observed as under (para 4 of AIR) :–
“The trial Court framed the necessary and relevant issues stemming from the pleadings and on its own appreciation of the evidence on record came to find against the respondent that he was ready and willing to perform the contract: and that the agreement, being one of reconveyance, time was of its essence. The suit was accordingly dismissed. Respondent’s first appeal before the learned II Additional District Judge, Bulandshahar was also unsuccessful.”
17. Next comes the case of Sundra Naicka Vadiyar v. Ramaswami Ayyar reported in 1995 Supp (4) SCC 534 : (AIR 1994 SC 532). In this case the High Court found that the first appellate Court had returned a finding of fact after ignoring some relevant documents of vital importance. Thus the High Court, after appreciating evidence, reversed the findings of fact and the Supreme Court upheld the High Court judgment.
18. This judgment was followed by one delivered by the Apex Court in Mehrunnisa v. Smt. Visham Kumari, reported in (1998) 2 SCC 295 : (AIR 1998 SC 427). This matter arose out of a suit for eviction. The High Court while deciding a second appeal under Section 100, CPC came to a conclusion that the first appellate Court had reversed the judgment of the trial Court without reading evidence and without taking into account documents necessary for returning a finding on the issue. The High Court reversed the judgment of the first appellate Court and the Supreme Court approved the High Court approach by holding as under (para 13 of AIR) :–
“In the case on hand unfortunately the lower appellate Court before reversing the finding of the trial Court on the issue of bona fide requirement of the landlady for starting a cloth business failed to read the entire evidence and take into consideration all the documents, placed before the trial Court. Therefore, it was rightly contended by Dr. Ghose, learned senior counsel for the respondent, that the High Court was justified in interfering with the finding of the first appellate Court. A reading of the judgment of the lower appellate Court leaves no doubt that it has looked into the contents of the first notice whereunder the landlady has stated that she required the premises for her husband’s office and ignored the notice issued just before the filing of the suit. The lower appellate Court has also failed to give due importance to the fact that the landlady has not taken any steps to file suit for eviction pursuant to the notice issued on two earlier occasions and the ground stated in the notice preceding the suit is relevant for the purpose of deciding the issue.”
19. The latest elaborate finding in the series, noticed by me on the subject has been delivered by the Supreme Court in Ishwar Dass Jain v. Sohan Lal reported in (2000) 1 SCC 434 : (AIR 2000 SC 426). In this judgment their lordships tried to assimilate the law, referred to above and then formulated a substantial question of law, which would arise out of omission of the lower Court to consider vital pieces of evidence, and relying upon inadmissible evidence (Para 13 of AIR):–
“Whether the Courts below failed to consider vital pieces of evidence and whether the Courts relied upon inadmissible evidence while ariving at the conclusion that the mortgage was sham and that there was no relationship between the plaintiff and the defendant as mortgagor and mortgagee but the real relationship was as landlord and tenant?”
20. The question formulated by their Lordships for determination was one relating to the status of the parties which was a question of fact and was already determined by the Courts’ below. But because such determination was based upon evidence which was inadmissible, or it was made without taking into account evidence which was admissible. On both these grounds or either of them consideration of such tiding of fact does give rise to a substantial question of law,
21. Thus making use of the law which the above quoted judgments of the Supreme Court lay down, I find the scope of powers exercisable by the High Court under Section 100, CPC to be as under :-
The High Court in dealing with a second appeal ordinarily will not disturb a finding of fact. But it is not the same thing to say that appreciation of evidence is a forbidden plant which the High Court cannot touch. Where the Courts below have rightly appreciated the evidence, the High Court cannot substitute its interpretation for the one made by these Courts. But where the judgment is against the weight of evidence and is perverse, the High Court can exercise power under Section 100 and reverse such a finding of fact. Not considering that evidence which was admissible is as good an attribute of perversity as basing the judgment upon such evidence which is not admissible. Re-consideration of such a question of fact which is based upon a perverse judgment, will involve a substantial question of law as formulated by their Lordships in Ishwar Dass Jain’s case (AIR 2000 SC 426) supra. This is the clue given by Section 103 towards understanding scope of Section 100 of CPC.
22. The substantial question of law which directly arises in this case is “whether the 1st appellate Court has omitted to take into consideration such evidence which was admissible or whether the finding by that Court has been based upon inadmissible evidence.”
23. This is how I over-rule the preliminary objection raised by Mr. Dutta.
24. Coming back to the merits of the case, I find that the suit was filed in the trial Court on 16-11-1979. On the same day, alongwith the suit, an application for grant of ad-in-terim injunction was also presented. The trial Court on the same day ordered that the parties should maintain status quo with respect to the suit property. Defendant did not file objections and violated the Court order. On the very next day a contempt motion was filed against the defendant alleging that he has disobeyed the Court order. The Court appointed Mr. B.K. Gupta, Advocate as a Commissioner directing him to visit the spot and submit his report. Commissioner submit his report in the matter on 17-11-1979. This report forms a part of the file. Written statement to the suit was filed on 3-11-1980, almost an year after filing of the suit. Written statement denied that there existed any lane ‘Gali’ between the two houses, however, the report of the Commissioner proves that there existed one. The First Appellate Court held that there existed no ‘Gali’ and, as such, the appellant-plaintiff had no easmentary right. The learned District Judge observed as under :–
“Admittedly the existence of a passage or public lane over the land belonging to Krishan Dass does not exist as recorded in the revenue records.”
25. After discussing the evidence the First Appellate Court, holds :–
“I have no difficulty thus to hold that the trial Court has committed error to hold that in between the houses of the parties a thoroughfare (Gali) 8 feet wide existed or exists. While writing a lengthy judgment the Munsiff has missed to note that before a private property or a portion thereof is held to be public passage or a thoroughfare the Court has to seek proof as to who and how long has been using that stretch of land as a passage and whether such a user has been as a matter of right.”
26. Obviously the effort of the Court here will be to discuss the evidence, both documentary and oral which establishes the existence of a lane. The documentary evidence produced by the plaintiff constitutes of the following :–
1. A site plan sanctioned by the Chairman Town Area Committee, Udhampur, approved by Town Area Udhampur, prepared by Shiv Kumar. Draftsman and duly proved and exhibited as EXP-BLI.
2. Report of Commissioner Sh. B.K. Gupta, Advocate proved and exhibited as EXP-BK. Site plan prepared by Sh. B.K. Gupta. Advocate. Commissioner, duly proved and exhibited as EXP-BK2.
3. Application moved before the Deputy Commissioner, Udhampur for issuance of Akas-Masavi, returned with the endorsement that there was no Akas-Masavi prepared at the time of settlement.
4. Application dated 5-12-1980 addressed
to Tehsildar Udhampur for issuance of Akas-Masavi returned with the endorsement that there was nothing available in the office.
5. Application dated 8-12-1989 moved before Tehsildar Udhampur for testifying that no demarcation of land under Survey No. 15/5 and 15/6 could take place due to torn Akas-Latha, returned with the endorsement that there was no Akas-Masavi.
6. Application dated 7-9-1979 moved before Officer Incharge Mahfizkhana, Jammu, for issuance of Akas-Masavi returned with the endorsement that the Akas-Masavi in respect of S. No. 15/5and 15/6 is completely torn and cannot be relied upon.
7. Application dated 19-11-1979 filed before Tehsildar Udhampur for the same relief, returned with the endorsement that there was no Akas-Masavi of the village.
8. Copy of the order of Chairman Town Area Committee, Udhampur, dated 19-3-1969 pertaining to the allotment of works to various contractors.
9. An application filed on 18-8-1979 by ten persons including Manzoor Hussain complaining of obstruction of the Gali.
10. Nishandehi report.
11. Two copies of ‘Vasiqa’ one executed by Om Parkash and another by Rattan Chand.
12. Copies of site plan showing a 8′ wide lane in existence and 13 photographs exhibited as EXP-M1 and EXP-M2.
27. The documents mentioned at Serial Numbers 3 to 12 have all been exhibited at the trial and duly proved. The first document which deserves the consideration of the Court is EXP-BL-I. It is a site plan duly proved by the Chairman. It vividly shows that 8 feet wide street is existing towards the houses belonging to the parties and immediately after the expression 8′.0″ wide street the word “Common” exists. The sanctioning authority is the Chairman but the Officer who prepared this site plan was Shiv Kumar, who has appeared twice as witness and proved the document. This document has squarely been brushed aside by the First Appellate Court. I am pained to find that the learned District Judge has not applied his mind and has not studied this document. An attempt has been made to dissuade from this document by making reference to some answers given by the Chairman in reply to some inconsequen
tial questions. I call them inconsequential because Chairman was not a witness of the spot. Obviously he could not testify before the Court the position that existed on spot. The purpose of producing him was to prove the document and once he proved the document, the same should have been relied upon without any demour.
28. The second document is the report of the Commissioner dated 17-11-1979. The Commissioner came as a witness and he proved this report, as already expressed. The Commissioners report reads as under :–
“Sir,
As per the order of the Hon’ble Court dated 17-11-1979 I was appointed as a Commissioner to visit the spot and report the factual position. Mr. Krishan Dass Abrol the non-applicant was not present at the spot when the undersigned visited at about 1 p.m. One Mangat Ram son of Bhagat Ram Caste Megh resident of village Kalwa Tehsil Udhampur was working as a labourer along with two others on the spot. They were busy in cutting a tree standing on the land of non-applicant. Krishan Dass’s grandson who did not disclose his name was present on the spot. A lane exists between the house of the applicant and vacant land of the non-applicant. The house wall of the applicant which stands by the side of the land has three windows measuring 7 1/2 x 4 1/2, 6 feet x 4 1/2 feet and 6′ x 4 1/2′ respectively. There are also three parnalas on the said wall which fall on the lane. The lane has been partially filled with stoned and fresh earth. Right on the start of the lane the house wall of the applicant also starts. This lane is below the level of the windows of the applicants house. At present the depth of the lane at point No. ‘A’ is 2′-9″. This point has not been filled with any fresh earth. The depth of the lane in between windows one to three is 10″, one feet 3″ and 2 feet 4″ respectively. A rough plan of the site is attached for the convenience of the Hon’ble Court. When the report was being written at the spot Shri Krishan Dass non-applicant along with his son Mohan Lal also came on the spot. The measurement of the depth of the lane as mentioned above was re-taken in presence of the parties who admitted it to be correct. If the filling of the lane continues, the windows of the applicant will be blocked. Hence the report is submitted.”
29. The Commissioner also, along with
this report, prepared a site plan and at the time of appearing as witness proved the same, that also without any equivocation shows that a 8′ .6″ lane existed between the two houses. His statement before the Court has a cementing force to the factum of proof of two documents and existence of a 8′ wide common lane. The First appellate Court did not believe this document because the Commissioner could not produce the order in writing by virtue of which he was appointed as a Commissioner. The First Appellate Court ignores this report which was duly received by the Court on 17-11-1979 and ordered to be placed on file and the same was subsequently proved. Unfortunately the First Appellate Court only relied upon Commissioner’s report filed by another Commissioner Mr. Anil Goel, Advocate, on 6-12-1980. Mr. Goel had visited the spot on 4-12-1980 more than one year after issuance of the status quo order and during this intervening period much of the water had flown. The defendant had changed the whole complexion of the lane. The 1st Appellate Court did not take notice of a number of applications made against the violation of the Court orders. The allegation of violation seems to continue during the pendency of this appeal also and this Court after receiving CMP No. 184/1995 intervened and order of maintenance of status quo was passed on 19-9-1995, which was got executed through the Administrator Town Area Committee. Administrator, in this behalf issued notice to the respondents on 20-9-1995. It is interesting to note that District Magistrate in this behalf also issued order No. 634-35/DMU on 26-9-1995. This order is addressed to Station House Officer Udhampur. I would like to reproduce this communication in verbatim :–
“I have received reports that one Shri Om Parkash and others are constructing a wall in a bye-lane of Ward No. 5. On the construction of this lane the Town Area Committee has spent an amount of Rs. 7300/-. Obviously Sh. Om Parkash is encroaching upon Government Land which is an offence under Section 447A of Criminal Procedure Code and action is to be taken by the police against the encroacher.
I would request you to kindly have the wall removed at the expenses of Sh. Om Parkash and also take action under Section mentioned above.”
30. The text of the above letter shows that the Town Area Committee Udhampur had much before spent an amount of Rs. 7300/- on the construction of this lane which is termed to be a Government lane. This, in fact had been, the case of the plaintiff before the trial Court also. He had already led evidence to the factum of construction of the lane at the expenses of Town Area Committee. In this behalf statement of Parmanand witness is noteworthy but the First Appellate Court, for unknown reasons, has not cared to take notice of all these facts and only places reliance on Mr. Anil Gael’s report. I do not call the report of Mr. Anil Goel, to be inadmissible or untrue but it relates to 6-12-1980, Mr. Goel had visited the spot after expiry of more than an year. The factum of possession was relatable to the point of time when the suit was filed and ad-interim relief granted by the Court. During the pendency of the suit material changes in the subject matter of the suit had been brought about and the plaintiff-appellant was carrying at the top of his voice against such violations and temperings. The report of Anil Goel Advocate, for purposes of determining the position on the date of filing of the suit, was not relevant. In my opinion the first appellate Court committed an error by basing its judgment on such a document. The report of Shri Goel is not germane for purposes of adjudication of issue No. 1. On the other hand the report of Shri B.K. Gupta, Advocate, is not only admissible but is very much a propose and that by no stretch of imagination could have been ignored.
31. The other documents referred to above relate to issue to non-availability of Akas-Masavi. One falls to understand as to how did the first appellate Court expect the existence of the lane to be supported by revenue record, when there was none. The lane in question was village abadi and not agricultural land. We do not have any annual record or Girdawari of common lanes existing within the Town Area limits. In absence of there being no Akas-Masavi, the question of some finding place in revenue records would not arise and this is also where the First Appellate Court has fallen into an error. A couple of photographs which find place on the file have been duly proved and those also establish the question of fact which was before the First Appellate Court. There is a series of other documents most of which are
official communications. A judicial notice of these official documents was required to be taken. I do not make a mention of a host of documents which also would establish the existence of a common lane between the two houses but most of them are verified copies only and have been proved in the matter in which the Evidence Act wants them to be proved. However, the documents referred to above when examined in the face of oral evidence go along in proving issues No. 1 & 2. I will be, in brief, referring to some of the witnesses with regard to the existence of common lane and also its user by the plaintiff. P.W. Krishan Singh has expressely stated that a 8′ wide lane exists between the two houses. A full description of the lane is given by this witness. He has also stated that from the year 1955-56 he has been seeing this lane existing there and the plaintiff as also the inhabitants of 10/15 houses have been using this lane. P.W. Gian Chand also states that right from his childhood he has been seeing a common lane in existence and the plaintiff is also using it. Mohd. Sadiq also testified the existence of lane and says that he has been seeing the plaintiff using this land for 30/35 years. Madan Lal, photographer, has proved the photographs. He also states that the lane is in existence. Mohd Din P.W. also states that the common lane is in existence and serves as a thoroughfare for the Mohallah and plaintiff also uses it. This witness is at the age of 72 years and he states that he is seeing the lane and plaintiff using the same from the time he was putting at Udhampur. Parmanand P.W. who is a clerk of Town Area Committee, Udhampur, not only proves the site plan but also states that an amount of Rs. 7300/- was spent by the Town Area Committee for metalling and repairs of the lane and allotment order in favour of the Contractor was issued under No. TAC91/ W-3/79/4356 dated 14-3-1979. B.K. Gupta, Advocate, as already expressed, has stated that on inspecting the spot as Commissioner, he had found a 8′.6″ lane existing on spot which led to the house of the plaintiff. Besides all these witnesses the plaintiff has also made the same statement as his own witness.
32. The expression ‘public street’ has been defined under Section 3(26) of the Municipal Act. This provision reads as under :–
“Public street” shall mean any street :–
(a) heretofore levelled, paved, metalled, channelled, severed or repaired out of Municipal or other public funds, or
(b) which, under the provisions of Section 205 is declared to be, or under any other provisions of this Act becomes, a public street.”
33. The evidence, documentary and oral, have proved that the Town Area Committee had spent an amount of Rs. 7300/- for maintenance of the street, thus one can have no doubt that this was a public street.
34. The above discussion makes it clear that the First Appellate Court has ignored some important documents which were proved and are admissible in evidence. It also brushed aside the oral evidence which was led and on the other hand misread the evidence in such a manner which has rendered the judgment perverse and resulted in miscarriage of justice.
35. Thus the finding of the First Appellate Court is not tenable, as such, the impugned judgment and decree passed by District Judge, Udhampur on 17-5-1995 is set aside and the judgment and decree of the trial Court dated 22-11-1989 is upheld with costs.