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2005 DIGILAW 234 (HP)

MACHINDER PAL v. BHAGWATI

2005-07-11

K.C.SOOD

body2005
JUDGEMENT K C Sood, J. (Oral).: This appeal arises out of the judgment of learned Sub Judge 1st Class, Court No.1, Una dated January 29, 2001 as upheld by the learned Additional District Judge, Una vide his judgment dated December 7, 2004.1 The plaintiff filed a suit for permanent injunction seeking to restrain the defendants from interfering or encroaching on any part of his land subject matter of the dispute and further from carving any passage, cutting and removing the trees from the said land. 2. The case of the plaintiff is that he is the owner in possession of the land in question but the defendant being strong headed, threatened to encroach on the land and are bent upon to widen the path existing path encroaching on the land. The defendants resist the suit controverting the allegations. The ownership and possession of the plaintiff over the land in question is admitted. However, their case is that there are trees located on Khasra numbers 106 and 107 which is a public passage under the control of the Panchayat. The land of the plaintiff is adjacent to this public passage and it is the plaintiff who wants to encroach upon the plaintiff passage and grab the trees located on this land. 3. Learned trial Judge after appreciation of the evidence found that even on the own admission of the plaintiff a path which adjoins his land exists but the plaintiff maintain that this public path is only one meter in width. The Kanungo who appeared in defence (DW-2) categorically states that the width of the public path is three mtrs. The trial Judge concluded, it is the plaintiff who intends encroaching upon the public passage. The trial Court held that there is no evidence to show that the defendants ever threatened to encroach on the land owed and possessed by the plaintiff. In the absence of the cause of action, his suit was dismissed. 4. Dissatisfied, the plaintiff laid an appeal before the learned Additional District Judge as notice above. Still aggrieved, the plaintiff is in this second appeal. 5. The grievance of the plaintiff is that the defendants threatened to encroach on his land to extend the public passage by cutting the trees in his land. 6. 4. Dissatisfied, the plaintiff laid an appeal before the learned Additional District Judge as notice above. Still aggrieved, the plaintiff is in this second appeal. 5. The grievance of the plaintiff is that the defendants threatened to encroach on his land to extend the public passage by cutting the trees in his land. 6. Plaintiff neither in his statement nor in his evidence disclosed when and where the defendants threatened to encroach on his land so as to widen the public passage already existing. There is not as whisper even in the statement of the plaintiff as to when the cause of action precisely arose. The learned First Appellate Court concurred with the findings of the learned trial Judge that the plaintiff has failed to disclose any cause of action against the defendants. 7. Learned First Appellate Court noticed that the recorded passage in the revenue record is three meters whereas, the plaintiff maintains that such passage is one meter in width. Roshan Lal Kanungo gave demarcation of the passage in question in the presence of the villagers and parties. No encroachment as such as found even though the plaintiff refused to sign the demarcation report. The plaintiff indeed suppressed, in his plaint, the material fact that demarcation of the land in question was given. Learned First Appellate Court records: "Not only the plaintiff has failed to establish on record that any tree situated in the suit land, or that the land of the defendants is just contiguous with a view that they may have the occasion to cause interference in the suit land, but also there is no evidence on record that any such attempt was made by the defendants even to cut down any tree situated on the boundary of the public passage and the suit land bearing Khasra No. 105. The bald allegations thus made against the defendants as such does not constitute a good cause of action by any standard so as to substantiate and to hold that the defendants had tried to cause interference in the suit land." 8. Faced with this, learned counsel for the appellant contends that the plaintiff was not given an opportunity to rebut the evidence led by the defendants. 9. Only issue of which the onus was on the defendants is Issue No.2: 2. Whether the plaintiff has cause of action of file the present suit? OPD 10. Faced with this, learned counsel for the appellant contends that the plaintiff was not given an opportunity to rebut the evidence led by the defendants. 9. Only issue of which the onus was on the defendants is Issue No.2: 2. Whether the plaintiff has cause of action of file the present suit? OPD 10. In fact, there appear to be typographical mistake by typing-OPD. The issue as framed clearly but the onus to prove the issues, apparently, on the plaintiff to show that he had a cause of action to file the suit. In any event, perusal of the record of learned trial Court shows that the plaintiff never asked for any opportunity to lead any evidence in rebuttal. No such grievance was made before the First Appellate Court. The contention is misplaced. 9. The judgment and decree as recorded by the trail Judge and up-held by the Additional District Judge cannot be said to be dehors the evidence justifying any interference. 10. No question of law such less substantial question of law arises in this appeal. Dismissed. CMP No. 107 of 2005. In view of the dismissal of the main appeal, this application does not survive. Interim order dated March 7, 2005 stands vacated. The application accordingly is disposed of.