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2013 DIGILAW 798 (HP)

Anjani Kumar v. Desh Raj

2013-09-05

RAJIV SHARMA

body2013
JUDGMENT Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 21.6.2012 passed by the Additional District Judge, Fast Track Court, Hamirpur in Civil Appeal No. 53 of 2010. 2. “Key facts” necessary for the adjudication of this Regular Second Appeal are that predecessor-in-interest of the respondents-plaintiffs (hereinafter referred to as “plaintiff” for convenience sake) filed a suit against the appellant-defendant and proforma respondents-defendants (hereinafter referred to as “defendants” for convenience sake). According to the plaintiff, land comprised in Khata No. 67, Khatauni No.94, Khasra No. 326 situate in Tikka Didwin, Tappa Mehlta, Tehsil and District Hamirpur is owned and possessed by the plaintiff. She had constructed a residential house over the part of the suit land. A retaining wall was constructed on the edge of the suit land by her to protect the land. Defendants are in possession of the adjoining land comprised in Khata No. 114 min, Khatauni No. 155 min, bearing Khasra No. 359 min, measuring 1 kanal 16 marlas situate in Tikka Didwin, Tappa Mehlta, Tehsil and District Hamirpur owned by the State of Himachal Pradesh, kept in “reserve pool”. Land of the plaintiff comprising Khasra No. 326 and adjoining land comprising Khasra No. 359 min were on the same level. Plaintiff had been enjoying the lateral support to the suit property from khasra No. 359 min since the time immemorial. The customary right of the lateral support was hindered by the defendants. Defendants have raised some construction upon Khasra No. 359 min in such a manner that the retaining wall has been exposed causing danger to the entire suit property existing over khasra No. 326. 3. The suit was contested by the defendants. According to the defendants, the suit was bad for non-joinder and mis-joinder of necessary parties. According to them, they are in peaceful possession over the land comprised in khasra No. 359 min since the time of their ancestors. According to them, the level of khasra No. 359 min is lower than khasra No. 326. The factum of the digging and excavation of the land with a view to lower down the level of Khasra No. 359 min was specifically denied. 4. Learned Civil Judge (Senior Division) framed issues on 20.6.2006. According to them, the level of khasra No. 359 min is lower than khasra No. 326. The factum of the digging and excavation of the land with a view to lower down the level of Khasra No. 359 min was specifically denied. 4. Learned Civil Judge (Senior Division) framed issues on 20.6.2006. He decreed the suit on 11.1.2010 and the defendants were restrained from interfering in land comprising Khasra No. 326 and also restrained from lowering down the level of the land comprised in Khasra No. 359 min by further digging and endangering the safety of the house, retaining wall and land of the plaintiff. One of the defendants, namely, Anjani Kumar filed an appeal against the judgment and decree dated 11.1.2010 before the Additional District Judge, Fast Track Court, Hamirpur. He dismissed the same on 21.6.2012. Hence, the present Regular Second Appeal. 5. Mr. G.R. Palsra, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below have misconstrued Ex.PW-1/A. He has further argued that the State of Himachal Pradesh was the necessary party. He has lastly contended that the plaintiff has failed to prove that she had natural right of lateral support to her land bearing khasra No. 326 from khasra No. 359. 6. Mr. K.D. Sood, learned Senior Advocate has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 8. PW-1 Sandeep Sharma has proved Ex.PW-1/A to prove the digging and excavation of the boundary of khasra No. 326. According to this site plan Ex.PW-1/A, digging to the extent of 6’-6” and 9’ has been carried out by the defendant at sections ‘A’ to ‘A’ and ‘B’ to ‘B’. 9. PW-2 Parkash Chand has testified that the defendants have carried out the digging on the spot and about 7-9 feet land has been dug below the Danga in khasra No. 359 min on the boundary of khasra No. 326. 10. PW-3 Dev Raj and PW-4 Desh Raj have supported the case of the plaintiff. 11. DW-2 Hans Raj has deposed that the kitchen was built by the defendants and concrete was laid in the courtyard. He has worked for defendants in the year 2008. 12. 10. PW-3 Dev Raj and PW-4 Desh Raj have supported the case of the plaintiff. 11. DW-2 Hans Raj has deposed that the kitchen was built by the defendants and concrete was laid in the courtyard. He has worked for defendants in the year 2008. 12. According to Ex.P-1 jamabandi for the year 1999-2000, the land comprising khasra No. 326 is owned and possessed by the plaintiff. According to Ex.P-2 jamabandi for the year 1999-2000, khasra No. 359 min measuring 1 kanal 16 marlas is recorded in the ownership of the State of Himachal Pradesh. It is, thus, proved that the defendants are not owners of land bearing khasra No. 359 min. DW-1 Anjani Kumar has admitted that proceedings with respect to illegal possession were started against them. However, they have filed an appeal before the Divisional Commissioner. It is duly proved by the plaintiff that khasra No. 326 and 359 min are on the same level. Plaintiff is claiming the natural right of lateral support to her land bearing Khasra No.326 from Khasra No. 359. Defendants have dug the land as per Ex.PW-1/A. Since the defendants have not denied the title of the plaintiff and have admitted that they are not owners of the adjoining land, no adverse inference is required to be drawn against the plaintiff for not appearing in the court. 13. Both the courts below have correctly appreciated Ex. PW-1/A to prove that the defendants have dug the suit land. The plaintiff has led tangible evidence to establish that she has natural right of lateral support to her land bearing khasra No. 326 from khasra No. 359. Plaintiff has established that defendants by carrying digging operation on khasra No. 359 min have endangered the construction of the plaintiff. Since the plaintiff has not claimed any relief against the State of Himachal Pradesh, the plea of non-joinder can also not be accepted. The relief prayed for by the plaintiff has rightly been granted by the courts below on the basis of the material placed on record by the plaintiff. 14. Their Lordships of the Hon’ble Supreme Court in Pandurang Jivaji Apte vs. Ramchandra Gangadhar Ashtekar (dead) by LRs and others, AIR 1981 SC 2235 have held that that question of drawing an adverse interference would arise only when there is no other evidence on record on the point in issue. Their Lordships have held as under: “11. 14. Their Lordships of the Hon’ble Supreme Court in Pandurang Jivaji Apte vs. Ramchandra Gangadhar Ashtekar (dead) by LRs and others, AIR 1981 SC 2235 have held that that question of drawing an adverse interference would arise only when there is no other evidence on record on the point in issue. Their Lordships have held as under: “11. In our opinion the question of drawing an adverse inference against Apte and Bavdekar on account of their absence from the court would arise only when there was no other evidence on the record on the point in issue. The first appellate court had relied upon the admission of the decree-holder himself and normally there could be no better proof than the admission of a party. The High Court however, has observed in its judgment that the decree-holder has made no admission in his evidence which would justify refusal to draw adverse inference for the failure of Apte and Bavdekar to step into the witness box. 13. In the agreement dated December 29, 1958 between the decree-holder and the judgment-debtor. Ext. 58, there is a clear reference to the amounts due to Apte from the judgment-debtor and the decree-holder had full knowledge of the dues of Apte. Apart from the dues of Apte there were other dues also to be paid by the judgment-debtor. If according to the judgment debtor himself the amount of Rs. 46,000/-, which was due to Apte, had not been cleared off even by the sale of the property to Bavdekar the decree-holder could not proceed against the property in the hands of Bavdekar. The attachment of the property at the instance of the decree holder was only subject to the lien of Apte and unless the entire amount due to Apte was cleared off the decree-holder could not proceed against the property in the hands of the purchaser, Bavdekar. Therefore, the conclusion drawn by the two courts below that the amount of Rs. 46,000/- and odd was due to Apte from the judgment debtor and the same had not been cleared off even by the sale of the property under attachment, was based on the materials on the record viz., the admission of the decree-holder, the admission of the judgment debtor and from various letters and receipts Exts. 47/1 to Ext. 47/13. 46,000/- and odd was due to Apte from the judgment debtor and the same had not been cleared off even by the sale of the property under attachment, was based on the materials on the record viz., the admission of the decree-holder, the admission of the judgment debtor and from various letters and receipts Exts. 47/1 to Ext. 47/13. All these documents have been lost sight of by the High Court which has indeed exceeded its jurisdiction in reversing the finding on the assumption that the courts below had approached the case with a wrong view of law in not drawing an adverse inference against Apte and Bavdekar on their failure to appear in court when the question of loan due to Apte from the judgment-debtor and the sale of the properties for Rs. 46,000/- has been amply proved by the evidence on the record. The question of drawing an adverse inference against a party for his failure to appear in court would arise only when there is no evidence on the record.” 15. Learned Single Judge of Kerala High Court in Dr. I.K.J. Jacob vs. K. Nandagopalan and others, AIR 1983 Kerala 177 has held that the right to lateral support is a right recognized in law as between owners of adjacent lands and no owner of a land can treat his land in such a manner as to remove the lateral support from the adjoining land or to impair it substantially so as to cause subsidence of land of the adjoining owner. Learned Single Judge has held as under: “1. The right to lateral support is a right recognised in law as between owners of adjacent lands. No owner of a land can treat his land in such a manner as to remove the lateral support from the adjoining land or to impair it substantially so as to cause subsidence of land of the adjoining owner. Such subsidence would be caused by an owner of land removing the soil from his land on the boundary of his property to an appreciable degree unless it be that his property is in a higher level and the soil is removed therefrom so as to bring it down to a level of the land of the adjoining owner. Such subsidence would be caused by an owner of land removing the soil from his land on the boundary of his property to an appreciable degree unless it be that his property is in a higher level and the soil is removed therefrom so as to bring it down to a level of the land of the adjoining owner. Otherwise the removal of the soil would result in the caving in of the portions of the land of the adjoining owner and would infringe the right of lateral support of such owner. Any person who is threatened with injury to his right of lateral support could seek an injunction from a civil court to restrain such an act and in appropriate cases where the injury had already been caused a mandatory injunction may issue to restore the lateral support by any means the court finds feasible. 2. In the case before me the plaintiff complained that the defendants had been removing the soil from their land situate at lower level with the result that the plaintiff's property was losing its lateral support. As a fact that has been found by the courts below. The trial court granted a mandatory injunction as prayed for by the plaintiff. The appellate court recognised the right of lateral support adverting to the decision of this court in Krishan v. Ammalu (1971 Ker LT 599) : ( AIR 1972 Ker 91 ), but found on the facts that the plaintiff was not entitled to mandatory injunction as prayed for. Two reasons are mentioned to support this conclusion. The main reason was that the lateral support could be provided to plaintiff's land only if defendants' land is refilled with soil, that plaintiff had never made such a demand and therefore the mandatory injunction could not be granted. The other reason which is shown as an additional reason is that the plaintiff did not choose to prevent the defendants from excavating the soil, suggesting that plaintiff stood by and watched the defendants' acts without protest. Both these reasons are unfounded. It is not as if the only way of making good lateral support is by refilling the defendants' land with the soil which had been excavated. That may not be practicable and evidently that is the reason why plaintiff did not seek it. Both these reasons are unfounded. It is not as if the only way of making good lateral support is by refilling the defendants' land with the soil which had been excavated. That may not be practicable and evidently that is the reason why plaintiff did not seek it. If a granite or masonry wall of sufficient strength to put up on the boundary or a little beyond in the defendants' property that would be sufficient to give lateral support to the plaintiff's property. In fact Ext. C2 Commissioner's Report indicates this possibility. It is that which could have been granted by the court. It is also not true to say that plaintiff acquiesced in the defendants' acts. The evidence shows otherwise. In as much as the court felt that there was no remedy available and also that plaintiff's conduct had made him ineligible to any remedy the judgment of the learned Judge calls for interference as the Judge is seen to be wrong in both these assumptions. Hence in reversal of the decree of the lower appellate court I hold that the plaintiff is entitled to lateral support.” 16. In this case also the defendants have dug and excavated the land lowering the level of Khasra No. 359 min resulting in loss of lateral support to the plaintiff’s property. 17. Accordingly, in view of the discussions 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. No costs.