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2012 DIGILAW 620 (HP)

Raghubir Singh v. Tara Chand

2012-09-24

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh, Judge This appeal is directed against judgment, decree dated 4.12.2002 passed by learned Additional District Judge. Mandi in Civil Appeal No. 37 of 2000 reversing judgment, decree dated 24.3.2000 passed by learned Sub Judge 1st Class, Court No.1, Mandi in Civil Suit No. 415 of 1998(87). The legal representatives of Hem Prabh, Hari Singh alongwith Krishan Chand are in appeal. 2. Hem Prabh, Hari Singh and Krishan Chand had filed the suit for permanent prohibitory injunction against the respondent regarding the land comprised in Khasra Nos. 98, 99 Kitas 2 measuring 14-2-19 bighas situated in Mauza Kehar (for short ‘Suit Land’). 3. The pleaded case of the appellants is that they are owners in possession of the suit land. The adjacent land comprised in Khasra Nos. 106,114 and 115 is owned and possessed by the respondent. The respondent has taken undue advantage of his being adjoining land owner. He is trying to cut and remove the trees from the suit land. He attempted to take construction material over the suit land for constructing a cow shed on it. The respondent was asked several times not to interfere over the suit land but without any positive response from the respondent. The appellants thus filed the suit. 4. The respondent contested the suit by filing written statement. The objection of maintainability of the suit was taken. On merits, the respondent denied for want of knowledge that appellants are owners in possession of the suit land. He denied the interference over the suit land. He has also denied that he had tried to raise construction on the suit land. He denied encroachment on any part of the suit land. He alleged that the appellants have encroached over his land. 5. The replication was filed. On the pleadings of the parties, the following issues were framed:- 1. Whether the defendant is interfering in plaintiff’s possession over the suit land? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Relief. The issue No.1 was answered in affirmative and it was held that respondent has encroached Khasra No. 98 measuring 13-17-19 bighas to the extent of 0-10-8 bighas, issue No. 2 was answered in negative. OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Relief. The issue No.1 was answered in affirmative and it was held that respondent has encroached Khasra No. 98 measuring 13-17-19 bighas to the extent of 0-10-8 bighas, issue No. 2 was answered in negative. The suit of the appellants for possession of Khasra No. 98 i.e. 98/1, 98/2, 98/3 and 98/4 measuring in all 0-10-8 bighas as shown in tatima was decreed on 24.3.2000 by the trial Court after demolishing the kitchen shown in Khasra No. 98/4. The respondent was also restrained from interfering on remaining khasra Nos. 98 and 99. The appeal filed by the respondent was allowed by learned Additional District Judge, Mandi on 4.12.2002, hence second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the learned Appellate Court misread, misconstrued the documentary evidence on record in terms of the report of Local Commissioner dated 8.1.2000 ? 2. Whether it is mandatory to decide the objections raised against the report of Local Commissioner before the judgment is given or those objections could also be decided in the judgment itself. 6. In the appeal it was found that respondent had filed the objections to the Local Commissioner report dated 8.1.2000 but without giving any opportunity to the respondent in support of the objections, the trial Court decreed the suit and the objections were dismissed on 24.3.2000. On 28.10.2011 the issue ‘Whether the Local Commissioner report dated 8.1.2000 is liable to be set-aside as alleged’ was framed. The onus of this issue was placed on the defendant. The trial Court was directed to decide the said issue after giving opportunity to the parties to lead evidence and report back the decision. The trial Court has returned the findings on the aforesaid issue vide judgment dated 18.1.2012 and returned the file. The trial Court held that the Local Commissioner report dated 8.1.2000 is not liable to be set-aside. 7. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellants that the learned Appellate court has misread, misconstrued the documentary evidence. The encroachment has been proved by Local Commissioner report. The learned Additional District Judge has erred in holding that the relief of possession could not be granted without amendment of the plaint. It has been submitted on behalf of the appellants that the learned Appellate court has misread, misconstrued the documentary evidence. The encroachment has been proved by Local Commissioner report. The learned Additional District Judge has erred in holding that the relief of possession could not be granted without amendment of the plaint. It has been submitted that learned Additional District Judge has erred in reversing well reasoned judgment of the trial Court. 8. The learned counsel for the respondent has supported the impugned judgment, decree. He has submitted that the Local Commissioner has not demarcated the suit land in accordance with law. The Local Commissioner report, therefore, cannot be relied to record a finding that the respondent has encroached Khasra No. 98. The plaint has not been amended for the relief of possession. The trial Court has erred in granting the relief of possession in absence of prayer of possession. There is no evidence that respondent has encroached any part of the suit land after the filing of the suit. It has been submitted that the impugned judgment and decree are just and equitable. The submission has been made for rejection of the appeal. 9. The substantial question of law No.2 is taken up first for determination. The trial Court in the judgment dated 24.3.2000 has held that the respondent has filed the objections against the Local Commissioner report dated 8.1.2000 but the objections are not sustainable. The trial Court dismissed the objections and the report of the Local Commissioner was affirmed being good piece of evidence. As noticed above, on 28.10.2011 the trial Court was directed to decide the issue whether the Local Commissioner report dated 8.1.2000 is liable to be set-aside as alleged. The trial Court gave opportunity to both the parties and vide judgment dated 18.1.2012 has affirmed the report of the Local Commissioner. The report of the Local Commissioner will be considered while discussing the substantial question of law No.1. The scope of substantial question of law No.2 is limited to the extent whether it is mandatory to decide the objections raised against the report of Local Commissioner before the judgment is given or those objections could be decided in the judgment itself. 10. In Bhumi Chand vs. Braham Dass and Anr. The scope of substantial question of law No.2 is limited to the extent whether it is mandatory to decide the objections raised against the report of Local Commissioner before the judgment is given or those objections could be decided in the judgment itself. 10. In Bhumi Chand vs. Braham Dass and Anr. Latest HLJ 2001 (HP) 188, it has been held that learned Judge ought to have taken the said report and the objections on his file and allow the parties to adduce evidence. After all the evidence is adduced, the learned Judge should have considered in the light of such evidence whether the report of the Commissioner was correct and whether any relief could be granted to the plaintiff on the basis of such report. It has also been held that even if the objections are filed to the report of the Local Commissioner, the duty of the Court is to take evidence in the suit itself. The evidence may also relate to matters covered by the report of the Commissioner. It is only after considering the entire evidence on record with regard to the merits of the suit and the issues arising therein, the Court can come to the conclusion whether report of the Commissioner is correct and whether any relief can be granted to the concerned parties in such a proceeding. In such a situation, it is not open to the Court to give a separate finding at a stage prior to the conclusion of the trial. Thus, as per Bhumi Chand (supra) the objections to the Local Commissioner report are to be decided at the conclusion of the trial alongwith the main suit. The substantial question of law No.2 is answered to the effect that it is not mandatory for the trial Court to decide the objections to the Local Commissioner report separately prior to the decision in the suit. The substantial question of law No.2 is decided accordingly. 11. The substantial question of law No.1 is now taken up for consideration. The appellants have pleaded that they are owners in possession of the suit land. The respondent in the written statement has denied the ownership and possession of the appellants on the suit land for want of knowledge. This is no denial. He has denied that he encroached any part of the suit land. The appellants have pleaded that they are owners in possession of the suit land. The respondent in the written statement has denied the ownership and possession of the appellants on the suit land for want of knowledge. This is no denial. He has denied that he encroached any part of the suit land. In the demarcation report dated 8.1.2000 the Local Commissioner has found encroachment of the respondent over the suit land. Ex.PW-6/A is the Local Commissioner report dated 8.1.2000 and Ex.PW-6/B is the Aks Tatima Shajra prepared by the Local Commissioner. In the report Local Commissioner has found encroachment of respondent over the suit land to the extent of 0-10-8 bighas. PW-6 Surinder Singh Kaundal, Tehsildar, Local Commissioner has proved report Ex.PW-6/A and Aks Tatima Shajra Ex.PW-6/B. He has stated that he has fixed three pucca points and thereafter demarcated the land. He has been cross-examined on behalf of the respondent but nothing could be extracted in the cross-examination so as to create a dent in the procedure adopted by the Local Commissioner while demarcating the land. 12. PW-7 Tara Chand has not denied the demarcation carried out by the Local Commissioner, he has however stated that the demarcation was not carried out properly by the Local Commissioner. Ex.PW-6/C is the statement of Tara Chand recorded by the Local Commissioner at the time of demarcation. He has stated that demarcation has been given by Tehsildar but it is not acceptable to him. He has not given any reason in the statement why the demarcation report is not acceptable to him. He has not stated that three pucca points were not fixed by the Local Commissioner at the time of demarcation. The perusal of demarcation report Ex.PW-6/A indicates that the Local Commissioner has carried out the demarcation properly and no fault can be found with the demarcation report Ex.PW-6/A and Aks Shajra Tatima Ex.PW-6/B. 13. The learned counsel for the respondent has submitted that learned Additional District Judge has not accepted the demarcation report dated 8.1.2000. This Court had given a direction to the trial Court on 28.10.2011 to decide the issue of validity of the Local Commissioner report. The trial Court has affirmed the Local Commissioner report dated 8.1.2000, therefore, the case may be remanded to the trial Court for deciding the suit afresh after setting aside the judgments of the two Courts below. This Court had given a direction to the trial Court on 28.10.2011 to decide the issue of validity of the Local Commissioner report. The trial Court has affirmed the Local Commissioner report dated 8.1.2000, therefore, the case may be remanded to the trial Court for deciding the suit afresh after setting aside the judgments of the two Courts below. He has submitted that in view of the judgment dated 18.1.2012 of the trial Court, the right of the respondent to challenge that judgment before the first appellate Court has been affected since the judgment dated 18.1.2012 is before this Court for consideration. The suit was filed on 23.1.1987. The parties are already litigating for the last over 25 years. It will be too much to remand the case after 25 years and ask the parties to start from the trial Court again. The entire record is with this Court including the judgment dated 18.1.2012 of the trial Court on Local Commissioner report dated 8.1.2000. This Court is competent to decide the matter finally and put quietus to the dispute. Therefore, the contention of the learned counsel for the respondent to remand the case to the trial Court is rejected. 14. The learned counsel for the respondent has submitted that the appellants had filed suit for permanent prohibitory injunction, the plaint was not amended, the trial Court erred in decreeing the suit of appellants for possession. He has submitted that the appellants are not entitled to relief which they have not prayed in the plaint. There is no evidence that the appellants were dispossessed from part of the suit land during the pendency of the suit. In the written statement, the respondent has denied the ownership and possession of the appellants over the suit land for want of knowledge. This is no denial. In other words, till the filing of the written statement by the respondent, he admitted the ownership and possession of the appellants on the suit land. 15. It is the case of the appellants that respondent was restrained by way of interim injunction by the trial Court on 1.7.1987 from interfering in possession of the appellants over the land comprised in Khasra No. 98. The Local Commissioner report Ex.PW-6/A has established that respondent has encroached a part of land comprised in Khasra No. 98. 15. It is the case of the appellants that respondent was restrained by way of interim injunction by the trial Court on 1.7.1987 from interfering in possession of the appellants over the land comprised in Khasra No. 98. The Local Commissioner report Ex.PW-6/A has established that respondent has encroached a part of land comprised in Khasra No. 98. PW-1 Hem Prabh has stated that in the suit he had obtained interim injunction against the respondent but despite that on 7.2.1988 the respondent constructed a Khokha over the suit land. The statement of PW-1 has been corroborated by the report Ex.PW-6/A in which the encroachment of respondent over the suit land has been found. 16. The learned counsel for the respondent has relied Bal Raj Sahni vs. Krishan Kumar and others 2012 (1) Shim.L.C. 12 and has submitted that without amendment of plaint in a suit of prohibitory injunction, possession cannot be granted even when the allegation is that possession has been taken during the pendency of the suit. The learned counsel for the appellants has relied U.P. State Brassware Corpn. Ltd. and another vs. Udai Narain Pandey AIR 2006 SC 586 wherein it has been held that it is one thing to say that the court interprets a provision of a statute and lays down a law, but it is another thing to say that the courts although exercise plenary jurisdiction will have no discretionary power at all in the matter of moulding the relief or otherwise give any such reliefs, as the parties may be found to be entitled to in equity and justice. If that be so, the court’s function as court of justice would be totally impaired. Discretionary jurisdiction in a court need not be conferred always by a statute. Order VII, Rule 7 of the Code of Civil Procedure confers power upon the court to mould relief in a given situation. 17. In Smt. Maya Devi and others vs. Mehria Gram Dall Mill, Hissar and others AIR 1988 P & H, 176, the Court noticed Rameshwar v. Jot Ram, AIR 1976 SC 49 and held as follows:- “In the present case the defendants not only took the law into their own hands but consciously violated the ad interim injunction order of the Court when they dispossessed respondent No.1. Neither the law nor the Courts are helpless in affording effective and real relief to the aggrieved party. Neither the law nor the Courts are helpless in affording effective and real relief to the aggrieved party. It was, therefore, in my view, an exceptional case contemplated by the final Court in Rameshwar’s case (supra) where the relief was rightly moulded by the Courts below to require the defendants to restore back the possession to respondent No.1. It was not necessary in the circumstances for respondent No.1 to seek amendment of the plaint for modification of the relief because of the above mentioned subsequent developments. The Courts below rightly exercised their powers and the relief granted is well within their jurisdiction.” 18. In Bal Raj Sahni (supra) the learned Single Judge observed that the order permitting the amendment of the plaint to be filed by the plaintiff was erroneous and unauthorized. In Bal Raj Sahni, the suit was only for permanent prohibitory injunction. In that case the question was not before the Court, where despite the injunction order the defendant dispossessed the plaintiff during the pendency of the suit and whether in that situation no relief of possession could be granted to the plaintiff in a suit for prohibitory injunction without prayer of possession. The facts here are different. In the present case facts are very close to the facts in Smt. Maya Devi (supra). There is no equity in favour of the respondent. There is evidence on record that respondent during the pendency of the suit after interim injunction dispossessed the appellants from a part of the suit land. In these circumstances, under Order VII Rule 7 of the Code, the Court is competent to mould the relief. 19. The learned Additional District Judge misconstrued the facts and law applicable in the matter. The respondent dis-obeyed the law, he is not entitled to protection of technicalities that unless the plaint is amended and relief of possession is prayed, the appellants are not entitled to the decree of possession. The respondent dispossessed the appellants on a part of suit land during the pendency of suit after interim injunction order. Thus, seen from any angle, the impugned judgment, decree are not sustainable. The substantial question of law No.1 is decided in favour of the appellants. 20. In view of above, the appeal is allowed, the impugned judgment, decree are set-aside. The judgment and decree passed by the trial Court are restored, Ex.PW-6/B shall form part of decree. No costs.