2025:HHC:15157 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos.373 & 374/2022 Date of Decision: 21st May, 2025. 1. RSA No.373 of 2022 Ajay Kumar .....Appellant Versus Gayatri Devi (deceased) through LRs …..Respondents. 2. RSA No.374 of 2022 Milkhi Ram (deceased) through LR .....Appellant Versus Gayatri Devi (deceased) through LRs …..Respondents. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. Dhiraj Thakur and Ms. Priyanka Chandel, Advocates in both the appeals. For the Respondents: Mr. Adarsh K. Vashishta, and Mr. Shivom Vashishta, Advocates in both the appeals. Bipin Chander Negi, Judge (oral). Both these appeals under Section 100 of the Code of Civil Procedure (for short, CPC), have assailed the judgments and decrees dated 28.10.2022 passed by the learned Addl. District Judge-III, Kangra at Dharamshala, District Kangra, HP in Civil Appeal No.1-D/XIII/2018 and Civil Appeal No.122- D/VI/2022, affirming the composite judgments and decrees dated 31.05.2017 passed by the Learned Civil Judge (Sr. Division), Dharamshala, District Kangra, H.P. in Civil Suit No.4/2007. Hence, they are being taken up together. 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 2025:HHC:15157 2. The facts giving rise to the present second appeal are that the plaintiff-appellant had filed a suit for declaration to the effect that the land comprised in Khata No.2 min, Khatauni No.5, Khasra No. 159, measuring 0-00-18 hectares, situated at Mohal Lahar, Mauza Chahri, Tehsil and District Kangra (Himachal Pradesh) as per Jamabandi for the year 2000-2001 (hereinafter referred to as the suit land) is 'Gair Mumkin Share- Aam Rasta' and the plaintiff has right of path for egress and ingress to his house and land comprised in Khata No.10 min, Khatauni No.19, Khasra No.169, measuring 0-22-40 hectares situated at Up Mohal Lahar, Mauza Chahri, Tehsil and District Kangra (H.P). The said Gair Mumkin Rasta comprised in the suit land, touches the land of the plaintiff, on one side and Chahri- Nagrota Bagwan link road on the other side, which is comprised in Khasa No.157. The plaintiff claimed to be using the passage since 1973 as a matter of right to his house and land, having acquired rights under the Easement Act both by easement of necessity and prescription as this was the only passage to his house and land. The plaintiff pleaded continuous, peaceful and uninterrupted use of the passage for over 30 years without any interference. The defendant was alleged to have no right to obstruct the passage by raising a wall or making a water channel that diverted water flow towards the plaintiff's property. 3. The plaintiff further challenged the correction order dated 12.10.2006 obtained by the defendant from the court of 3 2025:HHC:15157 Settlement Collector, Kangra at Dharamshala in Misal No.377/2006, contending it was an ex-parte order obtained without notice or opportunity of hearing to the plaintiff, rendering it illegal, null and void. The plaintiff sought restoration of the entry in respect of the suit land as Share-Aam and cancellation of mutation No.396 based on the Settlement Collector's order. The suit also sought permanent prohibitory injunction against interference with the passage and mandatory injunction for restoration of the suit land to its original position by removing any constructions or water channels. The plaintiff asserted ownership of adjacent land (Khasra No.169) where he had constructed a house in 1973 and resided with his family for over 30 years. 4. The plaintiff alleged that the defendant, taking advantage of her name in the ownership column, initiated correction proceedings before the Settlement Collector without impleading him, obtaining an order on 12.10.2006 without his knowledge. The defendant was allegedly attempting to close the passage and construct a water channel, raising a three-foot wall and lintel to divert water flow towards the plaintiff's property. 5. The defendant contested the suit, raising preliminary objections regarding maintainability, locus standi, cause of action, non-joinder of necessary parties, estoppel and jurisdiction. On merits, the defendant denied the suit land was 'Gair Mumkin Share-Aam Rasta', asserting it was 'Gair Mumkin 4 2025:HHC:15157 Kuhal' owned and possessed by her since 1917-18, as per revenue records. The defendant claimed the settlement staff erroneously changed the entry during 1971-72 operations without notice to her. Upon discovering this, she applied for correction, which was granted based on the Naib Tehsildar's report confirming the land's nature as 'Gair Mumkin Kuhal' in 1967-68 records. The defendant denied the plaintiff's use of the suit land as a passage since 1973, asserting the plaintiff built his house only in 1984 and started residing there in 1990. The defendant claimed the suit land was a Kuhal (water channel) for over 100 years, with the road at a higher elevation (4-5 feet) having a culvert for water flow. The defendant also asserted the plaintiff had alternative access routes via other passages near the Post Office and Atta Chakki. The defendant maintained the Settlement Officer's correction order was valid and binding, and she had paid rent to IPH Department for water use from the Kuhal for irrigation. The defendant denied constructing any new water channel, attributing the existing structure to IPH Department during road construction. 6. Through a counter-claim, the defendant sought permanent prohibitory injunction restraining the plaintiff from interfering with Khasra No.25 (old number of suit land) and mandatory injunction for restoration if any changes were made during suit pendency. The plaintiff filed a replication reiterating his claims and contesting the counter-claim on grounds of locus 5 2025:HHC:15157 standi, cause of action, estoppel, limitation and maintainability, asserting his possession of the suit land as a passage since 1973 and denying the defendant's possession. 7. From the pleadings of the parties, the following issues were framed by the learned trial court :- 1. Whether there is a gair mumkin share-aam rasta in Khasra No.159, which is being used by the plaintiff for ingress and outgress to his house and land comprised in Khasra No. 169 and the said gair mumkin rasta share aam touches the land of the plaintiff mentioned above from one side and the other side of Khasra No.159, touches the Chahri Nagrota Bagwan link road comprised in Khasra No.157, as alleged? OPP. 2. Whether the plaintiff has a right of easement of necessity for using the path in Khasra No.159 and he has been using the same as such more than 30 years, as alleged? OPP. 3. Whether the plaintiff has acquired the right by prescription in the use of path in Khasra No.159, as alleged? OPP. 4. Whether the entries regarding Khasra No. 159 are contrary as well as order dated 12.10.2006 of Settlement Collector are wrong and illegal, as alleged?OPP. 5. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP. 6. Whether the plaintiff is entitled for the relief of for mandatory injunction, as prayed? OPP. 7. Whether the suit is not maintainable? OPD 8. Whether the plaintiff has no locus standi to file the suit? OPD. 9. Whether the plaintiff has no cause of action? OPD. 10. Whether the suit is bad for non- joinder of necessary parties? OPD. 11. Whether the plaintiff is estopped from filing the suit? OPD. 12. Whether the suit has not been properly valued? OPD. 13. Whether the court has no jurisdiction to try suit? OPD. 6 2025:HHC:15157 14. Whether the defendants have been using Khasra No.159, as Kuhal since 1916-17, as alleged? OPD/Counter Claimant. 15. Whether the counter claimant is entitled for the relief of permanent prohibitory injunction, as prayed for? OPD/Counter Claimant. 16. Whether the counter claimant is entitled for alternative relief of mandatory injunction, as prayed for? OPD/Counter Claimant. 17. Whether the counter claimant has no locus standi to file the counter claim? OPP. 18. Whether the counter claimant has no cause of action?OPP 19. Whether the counter claimant is estopped from filing the counter claim? OPP. 20. Whether the counter claim is barred by limitation? OPP. Whether the counter claim is barred by 21. Whether the counter claim is maintainable in the present form? OPD not 22. Relief. 8. After evidence and hearing, the trial court decided issues No.1 to 6, 10 to 13 and 16 to 21 against the plaintiff and issues No.7 to 9, 14 and 15 in favor of the defendant, dismissing the plaintiff's suit and decreeing the defendant's counter-claim. 9. The plaintiff appealed, challenging the judgment as contrary to law and facts, based on surmises, and alleging erroneous findings on multiple issues. The plaintiff emphasized revenue authorities had subsequently upheld his contention that the suit land was not the defendant's exclusive property but for common use, with the Settlement Officer later correcting the record. The plaintiff relied on his father's 1973 sale deed from Raja Ram (a collateral of defendant's predecessor) which mentioned passage rights, asserting vested rights as successor- 7 2025:HHC:15157 in-interest. The plaintiff contended the trial court wrongly decreed the counter-claim despite evidence and subsequent correction orders by the Settlement Officer dated 15.10.2012. 10. Initially the plaintiff filed a single appeal on 13.09.2017 against the composite judgment and decree passed by the trial Court on 31.05.2017. Subsequently the plaintiff filed a second appeal along with an application for condonation of delay, which was filed on 19.09.2022. Both were dismissed by the Appellate Court. In the appeal filed along with an application for condonation of delay, the delay was not condoned. In view thereof, the other appeal was decided holding as under:- “After hearing of arguments in the instant appeal, appellant/plaintiff has filed another appeal against the judgment and decree along with an application to condone the delay in preferring the accompanying appeal in order to tide over the legal hurdle, but keeping in view the fact that the application for condonation of delay has been dismissed vide separate order made in an application on merit, consequently, legally speaking, no separate appeal is registered and pending before this court to claim that the appellant/plaintiff has filed separate appeal against an adjudication made in counter-claim.” 11. Heard counsel for the parties and perused the impugned judgments. 12. Condonation of delay is a discretionary power available to courts. Exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause shown 8 2025:HHC:15157 or an acceptable explanation being proffered, delay of the shortest range may not be condoned. 13. The Court must distinguish between an ‘explanation’ and ‘excuse’. In this respect, it would be appropriate to refer a judgment reported as Sheo Raj Singh (deceased) through Legal Representatives & Others v. Union of India and Another, 2023 (10) SCC 531. The relevant extract of the same are as under: “…...Of course, the courts must distinguish between an ‘explanation’ and an ‘excuse’. An ‘explanation’ is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be taken to distinguish an ‘explanation’ from an ‘excuse’. Although people tend to see ‘explanation’ and ‘excuse’ as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real. 32. An ‘excuse’ is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an ‘excuse’ would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure hat a meritorious claim does not reach the higher courts for adjudication.” 14. After the passing of the judgment by the trial Court, the present appellant within the prescribed period of limitation 9 2025:HHC:15157 approached a counsel for filing the requisite appeal. The counsel filed a single appeal, rather than filing two appeals. No fault in this respect can be attributed to the present appellant. 15. In what cases can Want of ‘diligence’ or ‘inaction’ be attributed to an applicant it would be appropriate to refer to Katari Suryanarayana v. Koppisetti Subba Rao, (2009) 11 SCC 183 : “Want of ‘diligence’ or ‘inaction’ can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent.” 16. In the case at hand, no want of diligence can be attributed to the present appellant in filing the appeals before the Appellate Court. 17. For the aforesaid reasons, delay in filing the appeal before the First Appellate Court is condoned. Judgments dated 28.10.2022 passed by the learned Addl. District Judge-III, Kangra at Dharamshala, District Kangra, HP in Civil Appeal No.122-D/VI/2022 is quashed and set aside. Condonation of delay in filing the appeal means revival of the appeal in the First Appellate Court. The reason cited for the dismissal of the appeal initially filed in Civil Appeal No.1-D/XIII/2018 as stated supra in para 10 by the First Appellate Court is palpably wrong. A refusal to condone delay in filing an appeal is a decision in the appeal. The said position of law is enunciated in 2005 (1) SCC 10 2025:HHC:15157 436, titled Shyam Sundar Sharma Vs. Pannalal Jaiswal & Ors. The relevant extract is reproduced hereinbelow:- “10……………… Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.” 18. On account of the aforesaid provision of law, impugned judgment passed in Civil Appeal No.1/D/XIII/2018 is quashed. For the foregoing reasons, appeals preferred before the Court are allowed. Matter is remanded back to the First Appellate Court for adjudication of both the appeals on merit afresh. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 21st May, 2025 (T.B/Gaurav Rawat)