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2012 DIGILAW 1031 (HP)

Krishan Kumar v. Nikku Ram

2012-12-24

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J. This is the plaintiff’s appeal against the concurrent findings of the learned Courts below dismissing the suit of the appellant claiming decree for permanent prohibitory injunction and in the alternative for possession. 2. The plaintiff pleaded that the land comprised in khasra No.32, kata khatauni No. 31min/37min, measuring 6-2 bighas situated in Revenue Estate Jamoi, Pargana Geharwin, Tehsil Ghumarwin, District Bilaspur, H.P. is recorded in the ownership and possession of the plaintiff along with one Ram Lal and other co-sharers. In these circumstances, the defendant had no right, title or interest in the suit land which is situated adjoining to the Gehrwin-Thuran road and is a very valuable piece of land. In view of the value and importance of the same, the defendant had deliberately started construction over the suit land in order encroach upon the same with a view to deprive the plaintiff of his valuable piece of land. These allegations were denied by the defendants. 3. On the pleadings of the parties, the learned trial Court settled eight issues. Most important issue being as to whether the defendant is interfering in the suit land, as alleged. On this issue the plaintiff relied upon jamabandi Ex.P-1 for the year 1989-90 showing that the suit land bearing khasra No. 32 measuring 6-2 bighas is in the exclusive ownership and possession of the plaintiff and other co-sharers in equal share. Out of this the plaintiff is having 1/6th share in the suit land. Ex. D-1 Jamabandi for the year 1989-90 shows that the land comprised in khasra No. 59 and 35 measuring 8.11 bighas is in the exclusive ownership and possession of the defendant Nikku Ram. Ex. DW2/A, tatima proved in the statement of DW-2 Amar Nath, Patwari, who states that land comprised in khasra No. 59 is exclusively owned and possessed by defendant Nikku Ram. PW1, plaintiff Shri Krishan Lal stated in Court that defendant had forcibly started construction of structure over his land. He admitted in cross-examination that he had not obtained any demarcation at the time of the institution of the suit. PW-2 Shri Garja Ram states that possession is that of Nikku and he is ignorant about its owner. He also states in cross-examination that Nikku had constructed a house in his own land and there is no path between the land of Nikku and Krishan Kumar. PW-3 Sh. PW-2 Shri Garja Ram states that possession is that of Nikku and he is ignorant about its owner. He also states in cross-examination that Nikku had constructed a house in his own land and there is no path between the land of Nikku and Krishan Kumar. PW-3 Sh. Sri Ram states that the suit land is joint and the defendant has no concern whatsoever. PW-4 Smt. Ram Dai states that the suit land is possessed by Nikku Ram and he is its owner. 4. Defendant Shri Nikku Ram, DW-1 states that he has constructed a house on his own land and that he has never interfered in the land of the plaintiff. He was subjected to lengthy cross-examination but nothing material has been brought on record which destroys the veracity of his statement. DW-2 Shri Amar Nath, patwari proved on record tatima Ex.DW2/A showing that khasra No.59 is owned and possessed by defendant Nikku Ram. On considering this evidence, the learned trial Court proceeded to dismiss the suit of the plaintiff holding that there is nothing on record to prove that the defendant is interfering in the suit land and had made any encroachment over it. The plaintiff preferred an appeal and in which an application for additional evidence was filed. The learned Appellate Court has affirmed the findings of the learned trial Court after reassessing the entire evidence. The learned Appellate Court also take note of the fact that the DW-2, Amar Nath had stated that Field Kanungo had demarcated khasra No. 59 of the defendant on 17.2.1993. The plaintiff as also proprietors of the revenue estate Jamoi had been present at the time of the demarcation and the defendant was not found to have encroached upon the suit land or any portion thereof. On 18.2.1993 DW-2 Amar Nath, Patwari had prepared the field map Ex.DW2/A of the house of the defendant. According to this field map the offending construction was found on khasra No. 59. PW-4. Smt. Ram Dai has stated in cross-examination that the defendant had constructed his house after leaving sufficient space between his construction on his land bearing khasra no. 59 abutting khasra No.32 of the plaintiff. On the additional evidence, when the report Ex. Ax was tendered in evidence, the learned Appellate Court notes that it clearly reveals that the defendant had not encroached upon the suit land or any portion thereof. 59 abutting khasra No.32 of the plaintiff. On the additional evidence, when the report Ex. Ax was tendered in evidence, the learned Appellate Court notes that it clearly reveals that the defendant had not encroached upon the suit land or any portion thereof. It was stated by the plaintiff in his evidence that the defendant had been digging the suit land for raising construction thereon when he had instituted the suit. The learned Appellate Court holds that there is nothing in report Ex. AX in favour of the plaintiff when the Tehsildar clearly stated that the construction was on khasra No. 59 and the appeal was accordingly dismissed. 5. At this juncture I also note that an application under Order 39, Rule 2-A of the Code of Civil Procedure (hereinafter referred to as the CPC) was instituted in this Court with the prayer to proceed against the respondent for contempt as he had encroached upon the suit land and raised the construction thereon during the pendency of this appeal. 6. This appeal was admitted on 22.6.2005 on the following substantial question of law: “Whether it was open to the learned first Appellate court below, if not satisfied with the findings of the Local Commissioner to the effect that the dimensions of the suit land towards the eastern boundaries thereof had been found less by 3 karams to remit the report to the same Commissioner with the direction to make fresh report after investigation or to set aside the report and issue of fresh commission to another person?” 7. Learned counsel appearing for the appellant refers to the decision of the Supreme Court in Municipal Committee, Hoshiarpur versus Punjab State Electricity Board and others, (2010)13 SCC 216 holding: “26. Thus, it is evident that Section 103 C.P.C. is not an exception to Section 100 C.P.C. nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 C.P.C. in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below. 27. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below. 27. There is no prohibition on entertaining a second appeal evenon a question of fact provided the Court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604 ; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, AIR 1999 SC 3067 ; and Dinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679 ). 28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide: Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685 )” (pp. 228 & 229 ). On more decision relied upon is General Manager(P), Punjab & Sindh Bank and others versus Daya Singh, (2010)11 SCC 233 holding: “24………………………………..A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni Rubber & Plastics v. CCE, AIR 1994 SC 1341 . This has been held by this Court long back in Triveni Rubber & Plastics v. CCE, AIR 1994 SC 1341 . Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taker into consideration the finding cannot be said to be perverse………..” (p. 240.) 8. I need not to multiply precedent further but only refer to the decision in Arulvelu and another versus State represented by the Public Prosecutor and another, (2009) 10 SCC 206 holding: “24. The expression `perverse' has been dealt with in number of cases. In Gaya Din v. Hanuman Prasad ( (2001) 1 SCC 501 this Court observed that the expression `perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. (p.216) 9. The submission made on behalf of the learned counsel is that both the learned Courts below have been remiss in not considering the evidence on record which clearly established that the plaintiff had brought impeachable evidence on record to show that in fact encroachment had been made by the defendant on the suit land. I am unable to accept this submission. What I find from the record is that before the learned trial Court there was no evidence of demarcation as urged rather only evidence on record was to prove that the defendant had raised some construction which was found to be on his own land. Before the learned Appellate Court though, the additional evidence was allowed but the demarcation report Ex. AX which was allowed to be brought on record rather went against the plaintiff when Tehsildar, who had demarcated the land, had recorded that it was the plaintiff who had encroached upon the part of the land belong to the defendant. Objection filed to this report were also dismissed by the learned Appellate court. 10. Before this Court an application under Order 39, Rule 2-A the Code of the Civil Procedure was instituted being CMP No. 177 of 2010 by the appellant stating therein that respondent/defendant has violated the orders of this Court and raised the construction over the suit land wherein another report for demarcation had been called for which also records that the defendant has not made any encroachment. But I am not referring to this report for the reasons that the suit of the plaintiff must fail. He had come to the Court with this grievance that defendant was encroaching upon his land having been unsuccessful in the trial Court, additional evidence was brought on record before the learned Appellate Court when demarcation report Ex. Ax was tendered in evidence which report rather helping the plaintiff, went against him. This is the second appellate Court and it cannot act as n trial Court to demarcate the suit land once again as urged by the learned counsel appearing for the plaintiff/appellant. He placed reliance upon the judgment of this Court in Bali Ram versus Mela Ram and another, AIR 2003 H.P. 87 holding: “13. Rule 9 of Order 26 of the Code of Civil Procedure (hereafter referred to as 'the Code'), empowers the Court to issue commission to make local investigation which may be required for the purpose of elucidating any matter in dispute. Though the object of the local investigation is not to collect evidence which can be taken in the Court, but the purpose is to obtain such evidence, which from its peculiar nature, can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court. To issue a commission under Rule 9 of Order 26 of the Code, it is not necessary that either or both the parties must apply for issue of commission. The Court can issue local commission suo motu, if, in the facts and circumstances of the case, it is deemed necessary that a local investigation is required and is proper for the purpose of elucidating any matter in dispute. Though exercise of these powers is discretionary with the Court, but in case the local investigation is requisite and proper in the facts and circumstances of the case, it should be exercised so that a final and just decision is rendered in the case.” (p.89) 11. He also submits that in Haryana Walkf Board versus Shanti Sarup and others, (2008)8 SCC 671 the Supreme Court has directed that such course to be adopted. True there can be no dispute with this proposition of law. He also submits that in Haryana Walkf Board versus Shanti Sarup and others, (2008)8 SCC 671 the Supreme Court has directed that such course to be adopted. True there can be no dispute with this proposition of law. But the fact situation in the present case is that both the learned Courts below having held against the plaintiff, the provisions of Order 26, Rule 9 of the CPC cannot be invoked. It is the findings of the two Courts below that no encroachment has been made on the suit land and rather the demarcation report Ex. Ax which was brought on record by the plaintiff in appeal before the learned Appellate Court went against him. Repeated investigation cannot be resorted to. 12. In these circumstances, I find no question of law much less a substantial question of law in terms as framed arises for determination in this appeal which is accordingly dismissed. No order as to the costs. 13. All pending miscellaneous applications also stand disposed of.