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2013 DIGILAW 569 (HP)

Nasib Singh v. Himat (dead)

2013-06-19

SANJAY KAROL

body2013
JUDGMENT Sanjay Karol, Judge(Oral) Defendant-appellant Shri Nasib Singh (hereinafter referred to as the defendant) has filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 1.12.2001, passed by the learned Additional District Judge, Mandi, in Civil Appeal No.31 of 1998, titled as Sada Ram and others versus Himat, whereby judgment and decree dated 24.1.1998, passed by the Sub Judge 1st Class, Sarkaghat, District Mandi, in Civil Suit No.32/1995, titled as Himat versus Sada Ram and others,, stands affirmed. 2. Appeal was admitted on the following substantial questions of law: 1.Whether both the courts below were right in decreeing the suit of the plaintiff in the absence of the State of Himachal Pradesh which was admittedly the owner of the suit land and the plaintiff had been evicted from the suit land being bad for non-joinder of necessary parties? 2.Whether both the learned courts below were correct in placing reliance on Tatima Ext.PW 6/A which was never prepared in accordance with H.P. High Court Rules and Orders and it was admitted by the Patwari that no demarcation had been carried out? 3.Whether the learned courts below were right in decreeing the suit of the plaintiff without considering the fact that the plaintiff had not established infringement of any right, identity of the land or quantification of damages? 4.Whether judgement of the learned Appellate Court vitiated by the fact that it ignores the judgment rendered by the learned District Judge in proceeding sunder Order 39 Rule 2- A CPC holding that no such grass had been removed though both proceedings arise in the same case? 3.Plaintiff filed a suit for recovery of ‘3,600/- as damages. According to Shri Himat (dead and now represented by the present respondents), hereinafter referred to as the plaintiff, the defendant illegally cut and removed the grass from the land in question. 4.Based on the pleadings of the parties, trial Court framed the following issues: 1.Whether the plaintiff is entitled for recovery of Rs.3600/- as damages as prayed for? OPP 2.Whether the suit is bad for non-joinder and mis-joinder of necessary party? OPD 3. Whether the suit is not maintainable? OPD 4.Whether the plaintiff has no cause of action? OPD 5.Relief. 5.Trial Court decreed the suit, holding that the plaintiff was entitled for recovery of a sum of ‘3600/- from the defendant. OPP 2.Whether the suit is bad for non-joinder and mis-joinder of necessary party? OPD 3. Whether the suit is not maintainable? OPD 4.Whether the plaintiff has no cause of action? OPD 5.Relief. 5.Trial Court decreed the suit, holding that the plaintiff was entitled for recovery of a sum of ‘3600/- from the defendant. Lower appellate Court has affirmed such findings of fact. 6.Having heard learned counsel for the parties and perused the record, I am of the considered view that there is no illegality in the findings returned by the Courts below. No question of law, muchless substantial questions of law, as framed, arises for consideration in the present appeal. 7.Order dated 16.10.2000 passed by learned District Judge in Civil Miscellaneous Appeal No.25 of 1998 has been rightly considered and correctly appreciated by the lower appellate Court, while dismissing the appeal. Para-12 of the judgment is evidently clear in that regard. 8.Plaintiff has been successfully able to establish that he had a right for cutting the grass from the land in question, which fact also stands established from the revenue entries (Ex. PW-1/B). Concurrent findings of fact with respect to the defendants having cut the grass duly stand established from the evidence so led by the parties. Plaintiff has also been able to establish that the defendants, without authority, cut the grass over which they had rights. 9. In view of the fact that the plaintiff had a right to cut the grass, non-impleadment of the original owner, would not render the suit as not maintainable or defective in any manner. There is no challenge to the revenue record, i.e. Tatima (Ex. PW-6/A), in accordance with law. Hence, the same cannot be allowed to be challenged in collateral proceedings. 10.Substantial questions of law are answered accordingly. 11.Hence, for all the aforesaid reasons, present appeal, devoid of any merit, is dismissed.Appeal stands disposed of, so also pending application(s), if any.