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2013 DIGILAW 412 (HP)

JAGAT RAM v. NIRMALA DEVI

2013-05-13

RAJIV SHARMA

body2013
JUDGMENT RAJIV SHARMA, JUDGE 1. THIS Regular Second Appeal is directed against the judgment and decree dated 30.5.2002 rendered by the learned Additional District Judge, Sirmaur District at Nahan in Civil Appeal No.11-N/13 of 2002. 2. "KEY facts" necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) filed a suit for permanent injunction against the respondent-defendant (hereinafter referred to as the 'defendant' for convenience sake). According to the plaintiff, he is co-owner and in joint possession of the suit land comprised in Khewat Khatauni No. 25 min/37 min, Khasra No. 11, measuring 12-19 bighas situated at village Amrion Bakarala, Tehsil Nahan, H.P. Defendant is stranger to the suit land and she has no right, title and interest over the same. She with the help of her relatives and labourers started digging the suit land on 14.4.2001 with the intent to construct a path over the suit land forcibly. She was requested not to do so. However, she did not pay any heed. It is in these circumstances, suit was filed by the plaintiff. Suit was contested by the defendant. According to the defendant, the suit land is exclusively possessed by the plaintiff's brother Prithvi Singh and the path constructed by Kandi Project is running through his land. According to her, path had already been constructed by the Kandi Project. 3. LEARNED Senior Sub Judge framed the issues on 25.7.2001. He decreed the suit on 10.12.2001. Defendant preferred an appeal before the learned Additional District Judge, Sirmaur at Nahan. He allowed the same on 30.5.2002. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. "Whether the Kandi Project is a necessary party in the suit and suit is liable to be dismissed in the absence of Kandi Project without giving an opportunity to the plaintiff to implead Kandi Project as party in the suit? 2. Whether the learned Additional District Judge has misconstrued, misinterpreted and misapplied the evidence on record and the view taken by him in reversing judgment, decree dated 10.12.2001 of learned Senior Sub Judge is not possible on the basis of material on record?" 4. MR. K.S. Kanwar has supported the judgment of the trial court. According to him, learned first appellate court has misconstrued and misinterpreted the oral as well as oral evidence led by the parties. MR. K.S. Kanwar has supported the judgment of the trial court. According to him, learned first appellate court has misconstrued and misinterpreted the oral as well as oral evidence led by the parties. He has also contended that in case the Kandi Project was necessary party in the suit, an opportunity ought to have been given to the plaintiff to implead it as party-respondent instead of dismissing the suit. Mr. Jitender P. Ranote has supported the judgment and decree passed by the first appellate court. 5. I have heard the learned counsel for the parties and have perused the records and pleadings carefully. 6. ACCORDING to the copy of jamabandi Ex.PA for the year 1996-97, the suit land comprised in Khasra No. 11 measuring 12-19 bighas is shown in the co-ownership and joint possession of the plaintiff, Jagat Ram and other co-sharers. According to the plaint, defendant had engaged labourers on 14.4.2001 and started digging the suit land to construct a path forcibly. The plaintiff requested her not to interfere with the suit land but the defendant has threatened to construct the path. She also threatened to implicate the plaintiff in a false case. In the written statement it is averred that the suit land was exclusively possessed by Prithvi Singh and that the defendant has not constructed any path. She was neither owner nor in possession of the suit land. Plaintiff while appearing as PW-1 has deposed that the defendant forcibly wanted to construct the path five months ago. She was accompanied by Amar Singh, Vikram Singh, Ved Prakash etc. He has admitted in his cross-examination that Prithvi Singh has submitted an affidavit before Kandi Project for the construction of road. He has also volunteered that the Kandi Project has constructed the road over the Government land, though he denied the suggestion later on that the Kandi Project has constructed the road. He has denied passing of resolution. Dw-1 Nirmala Devi has deposed that the path has been constructed by the Kandi Project. It leads from bridge to School. The path has already been constructed in the month of December/January. She was Vice- President of the Village Development Committee. The road is always constructed with the permission of the concerned parties. 7. DW -2 Pradeep Kumar has received the resolution of the Village Development Committee and thereafter an estimate was prepared. It leads from bridge to School. The path has already been constructed in the month of December/January. She was Vice- President of the Village Development Committee. The road is always constructed with the permission of the concerned parties. 7. DW -2 Pradeep Kumar has received the resolution of the Village Development Committee and thereafter an estimate was prepared. According to him, the passage leads from bridge to School. The same was constructed in the month of January. 8. DW -3 Prithvi Singh is brother of the plaintiff. According to him, the road has been constructed by the Kandi Project, which leads from bridge to school and the earlier path was on the same alignment. His land abuts the passage and he is in possession of the same and the house of the plaintiff is far away from the suit land. The possession is joint. The resolution was passed by the Village Development Committee for the construction of the road. He has denied in his cross-examination that the road in question was constructed under the supervision of defendant. What emerges from the evidence discussed hereinabove is that defendant only intended to construct the road by engaging labourers. It does not constitute an enforceable cause of action. Plaintiff was required to prove some overt acts on behalf of the defendants towards the construction of road. He has not stated even in his statement that the defendant started raising construction in April, 2001 by engaging labourers. Plaintiff has also deposed in his cross-examination that the road was constructed by the Kandi Project on the Government land. There is only one path, which leads from bridge to school. The road was constructed by the Kandi Project as per the statement of DW-2 after the resolution was received from the Village Development Committee and the estimate was prepared. According to statement of DW-1 resolution to this effect was also passed. DW-3 has also deposed that the passage was constructed by the Kandi Project. He has also denied the suggestion that the road was constructed under the supervision of Nirmala Devi. Plaintiff ought to have added the Kandi Project as one of the respondents. Defendant No.2 has never constructed the road personally. Even plaintiff has not added Village Development Committee through its President as defendant. The road was constructed by the Kandi Project. He has also denied the suggestion that the road was constructed under the supervision of Nirmala Devi. Plaintiff ought to have added the Kandi Project as one of the respondents. Defendant No.2 has never constructed the road personally. Even plaintiff has not added Village Development Committee through its President as defendant. The road was constructed by the Kandi Project. The Kandi Project was necessary party for full and final adjudication of the matter. It has come in the statement of DW-1 that the path already stood constructed in the month of December/January. DW-2 has also deposed that the road was constructed in the month of January. 9. ACCORDINGLY, in view of the observations and analysis made hereinabove, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.