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2001 DIGILAW 69 (HP)

KUNDAN LAL v. YOGINDRA

2001-05-04

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—Kundan Lal plaintiff-petitioner is in revision against the orders of learned District Judge, Chamba dated 16th January, 2001 passed in C.M.A. No. 21 of 2000. 2. In order to appreciate the controversy, facts necessary for the purpose of disposal of this petition may be noticed in brief: 3. Plaintiff-petitioner is owner of the land comprised in Khasra No. 1876/963 on which his residential house is located. He is also recorded owner in possession of the land comprised in Khasra Nos. 961, 962, 1016 and 1039 situate in Mauja Mugla of Chamba Town. Admittedly, out of this, land measuring 11 biswas comprised in Khasra Nos. 961, 962 and 1039/1 was acquired by the State of Himachal Pradesh. However, according to the plaintiff, he along with other co-sharers, still continues to be in possession of this land. Adjacent to the land of the plaintiff, is the land of defendant/respondent Smt. Yogindra measuring 5 biswas in Khasra No. 1380/1035. It is the case of the plaintiff that defendant has started construction of her house and is trying to encroach his land comprised in Khasra No. 1876/963. It is the further allegation of the plaintiff that plaintiff had a store, on which part of the land is not specified, which was demolished by the defendant while laying her pillars for the construction of her house. It is further case of the plaintiff that construction being raised by the defendant is in utter dis-regard to the approval granted by Town and Country Planning Department and Municipal Council of Chamba. According to the plaintiff, defendant has not left any space between his house and the proposed construction. It is the case of the plaintiff that in case "the defendant succeeds in raising construction, the backside windows along with the eaves shall be completely blocked and eclipsed thereby depriving the plaintiff to have free flow of light and air to his living rooms which is being enjoyed by the plaintiff as of right since long." 4. It is in this background that plaintiff sought following reliefs: (A) A decree for demarcation of lands of both the parties as described in paras Nos. 1, 3 and 4 of plaint and for fixing boundaries thereof. (B) A decree for permanent prohibitory injunction thereby restraining the defendant from raising any construction in land described in para No. 1 of the plaint. 1, 3 and 4 of plaint and for fixing boundaries thereof. (B) A decree for permanent prohibitory injunction thereby restraining the defendant from raising any construction in land described in para No. 1 of the plaint. (C) A decree for permanent prohibitory injunction thereby restraining the defendant from raising any construction in land described in para No. 4 of the plaint in deviation to the approved plan and until the requisite approval is accorded by the Municipal Council Chamba under the municipal bye-laws. (D) A decree for mandatory injunction thereby requiring the defendant to remove any illegal and unauthorised construction on any part of land comprised and described in paras No. 1, 3 and 4 of the plaint. (E) Or any other relief to which the plaintiff may be found entitled by the Hon’ble Court, the same be also granted. 5. Along with the suit plaintiff moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying that the defendant be restrained from raising any construction in the land described in para (1) of the plaint as also in para (4) of the plaint till the necessary approval is accorded by Municipal Council Chamba and further from making any deviation from the approved plan of the Town and Country Planning Department till the disposal of the suit. 6. The suit was resisted by the defendant on several grounds. It was pleaded that plaintiff is guilty of concealing material facts and that defendant is raising her construction in her land comprised in Khasra No. 1380/1035/2 measuring 0-5 bighas which is in ownership and possession of the defendant. She further claimed that infact plaintiff has constructed his house without any approval from the Town and Country Planning Department and is now trying to encroach the land of defendant. The other allegations, including that defendant by her construction would block the back side of the window of the house or eaves of the plaintiff are denied. It is her case that she had asked the plaintiff to take demarcation of his land but he had been evading the same. On the other hand, defendant applied for demarcation. Notice was issued to the plaintiff but despite notice he did not come and on demarcation of the land of the plaintiff it was found that plaintiff has not left any vacant space towards the side of the defendant. 7. On the other hand, defendant applied for demarcation. Notice was issued to the plaintiff but despite notice he did not come and on demarcation of the land of the plaintiff it was found that plaintiff has not left any vacant space towards the side of the defendant. 7. Learned trial Judge by his orders dated 15th November, 2000 found that plaintiff/petitioner "has no locus standi to raise the objections over these khasra numbers” which have been acquired by the. Government of Himachal Pradesh, as he is neither owner nor in possession of the land comprised in Khasra Nos. 961, 962 and 1039/ s per jamabandi for the year 1992-93. Learned trial Judge also observed that plaintiff is owner of the land comprised in Khasra No. 1876/963. Therefore, he is entitled to protect his possession and accordingly partly allowed the application and restrained the defendant from raising any construction over khasra Nos. 1876/ 963 till the disposal of the suit. In the absence of demarcation report, learned trial Judge found it difficult to conclude that the defendant-respondent is raising construction without leaving any space as per Municipal by-laws and accordingly decided the application. 8. Dis-satisfied, plaintiff filed an appeal before the learned District Judge, Chamba (CMA No. 21 of 2000). This appeal was dismissed by learned District Judge on 16th January, 2001. 9. During the pendency of the appeal, it transpired that Tehsildar Chamba was appointed as Local Commissioner, at the request of both the parties, to demarcate the land of plaintiff and to find out whether the defendant has encroached upon any portion of the suit land. Local Commissioner did not find any encroachment of the defendant on the land of plaintiff. Learned District Judge, accordingly dismissed the appeal of the plaintiff. I have heard learned Counsel for the parties. 10. Mr. Ajay Sharma, learned Counsel for the petitioner-plaintiff strenuously urges that petitioner-plaintiff has specifically pleaded in his plaint that light of the plaintiff has been blocked or shall be blocked if construction of the defendant is permitted to be raised. This aspect has not been dealt with by the learned District Judge or trial Judge and, therefore, both the courts failed to exercise jurisdiction vested in them. 11. Contention of learned Counsel is mis-placed. This aspect has not been dealt with by the learned District Judge or trial Judge and, therefore, both the courts failed to exercise jurisdiction vested in them. 11. Contention of learned Counsel is mis-placed. There is a definite finding of the learned trial Judge that in the absence of any demarcation report it was not possible for the trial Court to conclude if the construction being raised by the defendant would not leave any space as per municipal by-laws or there is any deviation to the approved plan. It is true that petitioner-plaintiff had pleaded in para (7) of the plaint that "in case the defendant succeeds in raising construction, the backside windows along with their eaves shall be completely blocked and eclipsed thereby depriving the plaintiff to have free flow of light and air to his living rooms which is being enjoyed by the plaintiff as of right since long," The plaint does not disclose whether right of easement, being claimed, is as of necessity or by prescription. No foundation of such right has been laid either in the plaint or in the accompanying documents. Prima facie, there is nothing on record to show, apart from bare assertion of the plaintiff that his light would be totally blocked if the defendant raises the proposed construction. 12. Scope of interference under Section 115 of the Code of Civil Procedure with the interlocutory orders is limited. In addition to the restriction contemplated under Section 115 of the Code, the scope of Interference in case of a revision against the interlocutory order has further been narrowed by proviso to Section 115. No revision petition is maintainable against the interlocutory order unless either of the following condition is satisfied : (i) If the impugned order, if not interfered with, would finally dispose of the suit or the other proceedings as the case may be; (ii) If the impugned order is allowed to stand it is likely to. occasion a failure of justice or cause irreparable injury. 13. It, therefore, follows that for entertaining a civil revision against the interlocutory order petitioner must not only show that order suffers from jurisdictional error but in addition to it, it must also be shown that such order has occasioned failure of justice. 14. occasion a failure of justice or cause irreparable injury. 13. It, therefore, follows that for entertaining a civil revision against the interlocutory order petitioner must not only show that order suffers from jurisdictional error but in addition to it, it must also be shown that such order has occasioned failure of justice. 14. As noticed earlier, plaintiff has not been able to make out a prima-facie case in his favour, so far raising of construction by the defendant in his own land is concerned. 15. The Apex Court in Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagarv. Ajit Prasad Tarwa, Manager, AIR 1973 Supreme Court 76, in para 5 of the judgment observed as under: "5. In our opinion the High Court had no jurisdiction to interfere with the order of the first Appellate Court. It is not the conclusion of the High Court that the first Appellate Court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code: See the decision of this Court in Pandurang Dhoniv. Maruti Han Jadhav, 1966 1 SCR 102 : AIR 1966 SC 153 and D.L.F. Housing and Construction Co. (P) Ltd., New Delhi v. Sarup Singh, (1970) 2 SCR 368 : AIR 1971 SC 2324." 16. It thus is clear that even if the order of the first appellate Court is wrong or not in accordance with law, court in revision cannot interfere unless it is shown that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. 17. In the present case, relief qua the land of plaintiff has been granted and the defendant has been restrained from raising any construction so far land of the plaintiff comprised in Khasra No. 1876/963 is concerned. So far other land is concerned, courts below did not find either prima-facie case or balance of convenience in favour of the plaintiff, and accordingly dismissed the application. So far other land is concerned, courts below did not find either prima-facie case or balance of convenience in favour of the plaintiff, and accordingly dismissed the application. This land, prima-facie, after its acquisition by the Government of Himachal Pradesh, does not appear in possession of the plaintiff. 18. At the end, learned Counsel for the petitioner prayed that the construction being raised by the defendant may be made subject to the outcome of the suit. No such orders are required. Any construction raised by the defendant shall indeed be subject to the outcome of the present suit. No other point is urged. 19, There is no merit in the petition and the same is dismissed with costs quantified at Rs. 500. 20 Any observation made hereinabove shall not be construed to be any reflection on merits of the case. The trial Judge shall decide the suit uninfluenced by any of the above observations. The parties are directed to appear before the trial Court on 31st May, 2001. Registry to send the records to the concerned court, so as to reach there on or before the fixed date, without any undue delay. CM.P. No. 44 of 2001 21. In view of the dismissal of the revision petition, this application does not survive and the same stands dismissed and the interim order is vacated. Revision dismissed.