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2003 DIGILAW 1169 (PNJ)

Ganpat v. Khiali

2003-08-22

SATISH KUMAR MITTAL

body2003
Judgment 1. This Regular Second Appeal has been filed by the defendants against the judgment and decree passed by the learned Additional District Judge vide which the judgment and decree passed by the trial Court was reversed and the suit of the plaintiff (respondent herein) for permanent injunction, was decreed with costs. 2. In the instant case, the plaintiff filed a suit for permanent injunction against the defendants restraining them from demolishing the wall of his Deori situated on the northern and western side of his house, which has been shown as XT in the site- plan annexed with the plaint. The claim of the plaintiff was that the site on which the aforesaid wall was constructed belongs to him and the defendants have no right or cause of action to demolish the said wall. Since the defendants were adamant in demolishing the wall in question, hence the instant suit was filed. 3. The defendants contested the aforesaid suit on the ground that the plaintiff had made encroachment on the land of the common passage and constructed a wall in question on the said passage in an illegal manner without having any right. Therefore, the wall in question was liable to be demolished. 4. On the pleadings of the parties, the following issues were framed by the trial Court : (1) Whether the plaintiff is the owner in possession of the house and wall in dispute? (2) Whether the wall in dispute has been constructed by the plaintiff illegally after obtaining the stay from the Court? (3) Whether the defendants have no right to demolish the wall in dispute? (4) Relief. 5. After considering the respective evidence led by both the parties, the trial Court decided issue No. 1 against the plaintiff and it was held that the plaintiff had encroached upon the land of the common passage by 5 while constructing the disputed wall of his Deori. It was found that due to the illegal encroachment made by the plaintiff, the width of the common passage was reduced from 24 to 19. The plaintiff was not found owner of the disputed area on which the wall in question was constructed. It was found that due to the illegal encroachment made by the plaintiff, the width of the common passage was reduced from 24 to 19. The plaintiff was not found owner of the disputed area on which the wall in question was constructed. The trial Court recorded this finding on the basis of the statements of DW-1 and DW-2 who had clearly stated that earlier the width of the common passage was 24 but the plaintiff encroached upon the land of the common passage by 5 and at present the width of the passage has been reduced to 18-6". The trial Court further relied upon the statement of DW-4 Lehna Singh, Block Development and Panchayat Officer. Rania, who deposed that a complaint regarding the illegal encroachment was filed against the plaintiff which was inquired into by his predecessor Ram Gopal. After spot inspection, he submitted his report to the Deputy Commissioner, Sirsa and a copy of the said report was produced on record as Ex. Dl. According to the said report, the plaintiff had encroached upon 5 area of the common passage in an illegal manner. The trial Court also placed reliance upon the document Ex. D-2 which is the map of Abadi of the village in which the width of the common passage near the house of the plaintiff has been shown as 24. However, on the measurements conducted by the Block Development and Panchayat Officer on the complaint made by the villagers, the width of the common passage was found 19. After taking into consideration this evidence, the trial Court came to the conclusion that the plaintiff had made encroachment of the common passage by 5, therefore, he was not entitled for any injunction as prayed for. After recording the aforesaid finding, the suit of the plaintiff was dismissed. 6. Against the judgment and decree of the trial Court, the plaintiff filed an appeal before the learned Additional District Judge. The said appeal was allowed and the judgment and decree passed by the trial Court was set aside and the suit of the plaintiff for permanent injunction was decreed and the defendants were restrained from demolishing the wall XY of the Deori of the house of the plaintiff. 7. Against the judgment and decree of the first Appellate Court, the defendants have filed in the instant Regular Second Appeal. 8. 7. Against the judgment and decree of the first Appellate Court, the defendants have filed in the instant Regular Second Appeal. 8. Shri H. S. Hooda, learned senior counsel appearing on behalf of the appellants has formulated the following substantial question of law which is arising in this appeal and addressed the arguments on that question : Whether the finding of reversal recorded by the learned first Appellate Court on issue No. 1 is totally based on surmises and conjectures and misreading of oral as well as documentary evidence available on the record; and whether such finding of fact, which is totally contrary to the evidence available on the record, is liable to be interfered in the Regular Second Appeal? 9. After hearing the learned senior counsel for the appellants on the aforesaid sub stantial question of law and after perusing the record of the case, I am of the opinion that the finding recorded by the first Appel late Court on issue No. 1 is liable to be set aside. Generally, the findings of fact recorded by the Court below are not to be interfered in the Regular Second Appeal. But in certain circumstances and situtions, such interference is permissible, the Honble Apex Court in Ishwar Dass Jain V/s. Sohan Lal, 2000 (1) SCO 434 : (AIR 2000 SC 426) held that in two situations, the interference with the findings of fact in the regular Second Appeal is permissible. The first one is when material or relevant evidence have not been considered, which, if considered, would have led to an opposite conclusion. The second situation in which the interference with the findings of fact is permissible, is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if was omitted, as opposite conclusion was possible. In either of the above situations, a substantial question of law arises. Similarly in Smt. Sawarni V/s. Smt. Inder Kaur, 1997 (1) RCR (Civil) 41 : (AIR 1996 SC 2823, the Honble Supreme Court has held that finding of fact recorded by the first Appellate Court while reversing the judgment of the trial Court without focussing his attention to the reasoning advanced by the trial Court and without examining the materials on record, can be interfered with in the Regular Second Appeal. 10. 10. After going through the judgment of the Courts below and the relevant evidence available on the record, I am of the opinion that the first Appellate Court has reversed the finding of the trial Court on issue No. 1 without properly considering the evidence available on the record. The first Appellate Court has discarded the statements on DW- 1 and DW-2 on the ground that there are contradictions in their statements. According to it, DW-1 has stated that the plaintiff has encroached upon 6 of the street which was earlier 24 in width whereas DW-2 had stated that previously the street in front of the house of the plaintiff was 24 and now it was about 17 and the plaintiff had encroached upon the 7 area of the street, and as per the report (Ex. D-l) made by Ram Gopal, Block Development and Panchayat Officer, Rania the encroachment on the street was of 5. In my opinion, the first Appellate Court has wrongly discarded the valid evidence available on the record and has not taken into consideration the said evidence merely on the basis of the trifle contradiction. Secondly, the first Appellate Court has discarded the report (Ex. D-1) made by Ram Gopal, Block Development and Panchayat Officer and the map of the village (Ex. D-2) on the ground that these documents were objected to when they were filed and the said objections were not decided by the trial Court. In my opinion, the first Appellate Court has wrongly discarded these documents on this ground as there is nothing on the record which suggest that the plaintiff pressed the aforesaid objections at the subsequent stage of the trial. Even otherwise, the aforesaid two documents were rightly exhibited by the trial Court. The report made by Ram Gopal, Block Development and Panchayat Officer was duly proved on record by DW-4 Lehna Singh, officiating Block Development and Panchayat Officer, who stated that this report was prepared by his predecessor in an enquiry and was signed by him. The map Ex. D-2 was a certified copy issued by the revenue department. Therefore, it was also rightly exhibited. Merely because at the time of tendering those documents in evidence, some objections were raised, which were not subsequently pressed, does not mean that these documents cannot be looked into and relied upon while determining the controversy. The map Ex. D-2 was a certified copy issued by the revenue department. Therefore, it was also rightly exhibited. Merely because at the time of tendering those documents in evidence, some objections were raised, which were not subsequently pressed, does not mean that these documents cannot be looked into and relied upon while determining the controversy. Therefore, I am of the opinion that the first Appellate Court has wrongly ignored these documents which clearly establish the encroachment made by the plaintiff in the common passage. The trial Court has also observed that the case put by the defendants was beyond their pleadings. The pleading of the defendants was only to the effect that the wall in question was illegal and the same was constructed after the stay was obtained from the Court; and the defendants have not stated in the pleadings at all as to what encroachment was made by the plaintiff in the street. Therefore, an observation was made by the first Appellate Court that the evidence led by the defendants regarding encroachment of the public street made by the plaintiff cannot be looked into. The reasoning given by the first Appellate Court is not sustainable in the eyes of law. Once the issue before the Courts below was whether the plaintiff is the owner in possession of the house and the wall in dispute, it was always open to the defendants to establish that the portion of the site on which the wall was constructed, was really encroached upon by the plaintiff on the public street. The evidence led by the defendants cannot be said at all beyond the pleadings. The first Appellate Court has also observed that the report (Ex. D-l) made by Ram Gopal, Block Development and Panchayat Officer cannot be looked into as the same was not proved. It was also observed that even otherwise the Block Development and Panchayat Officer Ram Gopal was having no authority to make such report. The observations made by the first Appellate Court are also not sustainable. As observed earlier, the report (Ex. D-l) was duly proved on record by DW-4 Lehna Singh. The Block Development and Panchayat Officer is always competent to inferfere into the matter when a complaint is made to him regarding any encroachment made in the common passage by any inhabitant of the village. As observed earlier, the report (Ex. D-l) was duly proved on record by DW-4 Lehna Singh. The Block Development and Panchayat Officer is always competent to inferfere into the matter when a complaint is made to him regarding any encroachment made in the common passage by any inhabitant of the village. The Block Development and Panchayat Officer is having jurisdiction being an Over-all incharge of the villages in his block. In my view, the first Appellate Court has wrongly reversed the judgment and decree of the trial Court, and the findings recorded by, it on the material issues were wholly based on surmises and conjectures. Therefore, the same are liable to be set aside. 11. Even if the finding of the first Appellate Court is accepted to the extent that the disputed wall was constructed by the plaintiff even prior to the filing of the suit and the same was not constructed after passing of the stay order in this case, as alleged by the defendants, the illegal encroachment made by the plaintiff in the public passage cannot be legalised. The plaintiff has failed to establish any right title or claim on the site on which the disputed wall was constructed by him. If he has so failed and encroached the public passage, then he is not entitled for any injunction. It is well settled law that no injunction can be granted to a person who encroaches upon the public passage. However, since the plaintiff had constructed the disputed wall six or seven years prior to filing of the suit, therefore, the wall in question should not be demolished by the defendants except in due course of law. It will be open to the defendants to move necessary application for removal of the illegal encroachment made by the plaintiff before the appropriate authority under the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 or under any other law. 12. In view of the aforesaid, this appeal is allowed. The judgment and decree passed by the first Appellate Court is set aside and the suit of the plaintiff-appellant is hereby dismissed with the observation that the disputed wall shall not be got demolished by the defendants except in due course of law. No order as to costs. Appeal allowed.