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2012 DIGILAW 59 (HP)

Sudesh Kumar v. Rachhpal Singh

2012-02-28

SANJAY KAROL

body2012
JUDGMENT : Sanjay Karol, J. This is plaintiff's Regular Second Appeal filed u/s 100 of the Code of Civil Procedure, 1908. Concurrent findings of facts recorded by the Courts below have been assailed in the present appeal. Plaintiff's Civil Suit No. 88 of 1997 praying for relief of permanent injunction, filed on 2.4.1997 was dismissed by the Sub Judge Ist Class, Court No.1, Amb, in terms of judgment and decree dated 27.9.1999. The same stands affirmed in the plaintiff's Civil Appeal No. 157/99 in terms of judgment and decree dated 13.2.2002, titled as Sudesh Kumar vs. Gurdit Singh, passed by District Judge, Una. Appeal was admitted on the following substantial question of law:- 1. Whether the Courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them, thereby vitiating the impugned judgments and decrees. 2. Plaintiff Sudesh Kumar filed a suit for permanent injunction restraining Gurdit Singh (defendant) from interfering and raising construction over the suit land. According to plaintiff, he is owner in possession of the same. 3. Defendant resisted the suit, inter alia, contending that the suit land originally belonged to the predecessor-in-interest of the plaintiff as also the defendant. The original Khasra No. 4845/3242 during consolidation proceedings was re-numbered as Khasra No. 2380 and the same during the settlement proceedings was re-numbered as Khasra Nos. 2622, 2623, 2624, 2625, 2626, 2620 and 2619. Khasra Nos. 2619 and 2620 fall to the share of predecessor-in-interest of the defendant. On Khasra No. 2619 a house was constructed way back in the year 1951 and Khasra No. 2620 is in fact the courtyard of the house. Defendant has been in continuous and uninterrupted possession of the same. As such, plaintiff has got no right over the same. 4. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff is estopped from filing the suit, as alleged? OPD 4. Whether the plaintiff has not come to the court with clean hands, as alleged? OPD 5. Relief 5. Trial Court dismissed the plaintiff's suit deciding all the issues in favour of the defendant. Lower Appellate Court has affirmed such findings of fact. 6. OPD 3. Whether the plaintiff is estopped from filing the suit, as alleged? OPD 4. Whether the plaintiff has not come to the court with clean hands, as alleged? OPD 5. Relief 5. Trial Court dismissed the plaintiff's suit deciding all the issues in favour of the defendant. Lower Appellate Court has affirmed such findings of fact. 6. While dismissing the plaintiff's appeal, Court below has primarily assigned two reasons. First being the statements of some of the witnesses, who are relatives of the parties, recorded in a litigation inter se between the parties before the criminal Court. Through the testimony of Som Pal (DW-5) Copyist, Court of Sub Judge Ist Class, Amb, statements of Nirmala Devi, Gurdas Ram and Anita Rani were exhibited. 7. Significantly these statements were in favour of the defendant. They substantially prove the fact that defendant is in possession of the suit land and also plaintiff has got no right over the same. But the fact of the matter is that such persons were otherwise available and they could have been examined in these proceedings. It is not that witnesses were dead, not traceable or incapable of giving evidence and also they are co-villagers. As such these statements cannot be looked into. To that effect reasoning adopted by the Courts below is erroneous. 8. However, another reasoning adopted by the lower Appellate Court is based on proper appreciation of the other material placed by the parties on record as also their oral testimonies. In this regard, relevant findings of the lower appellate Court are reproduced as under:- As per Ex. P. 3, copy of jamabandi, earlier khasra No. 4845/3242 was in joint ownership of predecessors-in-interest of the plaintiff/appellant and the defendant/respondent alongwith others. Such khasra number is stated to have been later on converted into khasra No.2380 out of which khasra Nos.2619 and 2620 were created as per the written statement. Though, khasra No.2380(old) was allotted, as per written statement, to the predecessors-in-interest of the plaintiff/appellant during the consolidation proceedings, but there is no evidence that possession of khasra No. 2620 which was created out of khasra No. 2380 alongwith khasra No.2619 was ever delivered to the plaintiff/ appellant or the predecessor-in-interest. Rather it is proved by Hari Singh (DW-3) that possession of the disputed land throughout remained with the father of the defendant/ respondent and after him, with the defendant/respondent himself. Rather it is proved by Hari Singh (DW-3) that possession of the disputed land throughout remained with the father of the defendant/ respondent and after him, with the defendant/respondent himself. It is admitted case of the plaintiff/ appellant that the defendant/ respondent had been residing in village Deoli since the time of his ancestors and it is not his case that the defendant/respondent has some different courtyard to his abadi. If possession of Khasra No. 2620 was not handed over to the plaintiff/appellant or his predecessors-in-interest which is with the defendant/respondent, as per the above discussed evidence, the plaintiff/appellant cannot claim relief of injunction qua such Khasra number. 9. Having closely scrutinized the record, I find there is no error with the same. Perusal of testimony of plaintiff (PW-1) would show that he has falsely deposed in Court. He states that land in question was never in possession of the defendant. This fact is materially contradicted by the revenue record placed on record by the parties and has been correctly appreciated by the lower appellate Court. Significantly this witness admits that defendant has a house built over Khasra No.2619 and has been residing there for the last more than 12 years. He also admits that in front of the said house there is a courtyard but according to him, the same is on Khasra No.2619. Plaintiff has not been able to establish this fact. Also this witness for the reasons best known to him denies the fact that prior to the consolidation proceedings, land was jointly owned by the predecessor-in-interest of the parties. He also denies that Abadi of the predecessor-in-interest of the defendant was in existence prior to such consolidation proceedings, which fact stands substantially proved by Gurdit Singh (DW-2) as also Hari Singh (DW-3) and the revenue record produced by them. Most importantly, defendant in his testimony states that in the year 1982 when his house got damaged due to heavy storm, he got the house repaired through Rattan Chand (DW-4). Significantly plaintiff admits that he did not stop the defendant from raising such construction. 10. I find that the plaintiff has falsely deposed before the Court below and as such even otherwise he is not entitled to the discretionary relief of injunction. Significantly plaintiff admits that he did not stop the defendant from raising such construction. 10. I find that the plaintiff has falsely deposed before the Court below and as such even otherwise he is not entitled to the discretionary relief of injunction. Defendant in his written statement has specifically pleaded that he is in possession of the suit land, which fact has been found to be true by the Courts below. Hence, no ground for interference is made out. It cannot be said that there is any error in appreciating the pleadings or evidence placed on record by the parties. Substantial question of law is answered accordingly. For the aforesaid reasons, there is no merit in the appeal and the same is dismissed. No costs.