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2013 DIGILAW 936 (HP)

Mool Raj v. Partap Singh

2013-11-06

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 1.1.2013 passed by learned District Judge, Hamirpur, in Civil Appeal No.24 of 2010. 2 "Key facts" necessary for the adjudication of this Regular Second Appeal are that the plaintiffs/respondents (hereinafter referred to as the "plaintiffs" for convenience sake) filed a suit for permanent prohibitory injunction against the defendant/appellant (hereinafter referred to as the "defendant" for convenience sake) for restraining him as also his agents from raising construction or changing nature of the land comprised in Khata No.277, Khatauni No.313, Khasra Nos. 1361/722/2 and 1361/722/1 measuring 0K-16 Marlas as per jamabandi for the year 1995-96, situated in Anu Kalan, Tappa Bajuri, Tehsil and District Hamirpur, H.P. A prayer for mandatory injunction was also made stating that the suit of the plaintiffs be decreed if during pendency of the suit, the defendant succeeded in raising any construction, removing its natural protection/support or dispossessing the plaintiffs. According to the plaintiffs, the defendant had dug a portion of the suit land and adjoining land to the extent of 50 feet in length, 9 feet in width and 4' 6" to 7' 6" in depth in such a way so as to cause damage to the house of plaintiffs and suit land by removing natural support/protection of earth. 3. The suit was contested by the defendant. According to the defendant, he laid foundation of his house in the month of December 1997 and slab was laid in the month of January 1998. The entire construction of the defendant was over in his own land comprised in Khasra No.1360/722 measuring 1 Kanal. The land of the defendant was at a higher level than that of the plaintiffs. The plaintiffs were claiming part of the land of the defendant on the basis of the order passed by the Collector dated 8.6.1999. He had challenged the order of the Collector before the Divisional Commissioner. The plaintiffs had wrongly and illegally raised a retaining wall of cement bricks over the land of the defendant. According to him, he had not removed any natural protection and support of the suit land. 4. No replication to the amended plaint was filed, whereas replication to the earlier written statement was filed by the plaintiff. 5. The plaintiffs had wrongly and illegally raised a retaining wall of cement bricks over the land of the defendant. According to him, he had not removed any natural protection and support of the suit land. 4. No replication to the amended plaint was filed, whereas replication to the earlier written statement was filed by the plaintiff. 5. The learned trial court framed the issues on 29.3.2001 and decreed the suit in favour of the plaintiffs vide judgment and decree dated 30.12.2009, restraining the defendant from interfering over the land comprised in Khata No. 277, Khatauni No.313, Khasra Nos.1361/722/2 and 1361/722/1 measuring 0K-16 Marlas as per jamabandi for the year 1995-96. The suit of the plaintiffs was also decreed for mandatory injunction directing the defendant to restore the lateral support to plaintiffs' land. 6. Defendant feeling aggrieved by judgment and decree dated 30.12.2009 filed an appeal before learned first appellate court, who vide judgment and decree dated 1.1.2013 dismissed the appeal. Hence, this Regular Second Appeal. 7. Mr. G.D. Verma, learned Senior Advocate, on the basis of the substantial questions of law framed, has vehemently argued that the plaintiffs, though were present in the Court, had not appeared as witnesses. He also argued that the plaintiffs had not led any evidence after the amendment of the plaint. He lastly contended that the statement of PW2 Madan Lal was wrongly relied on by both the courts below. 8. Mr. Sanjeev Bhushan and Mr. Rajnish Maniktala, Advocates, have supported the impugned judgments and decrees passed by both the courts below. 9. I have heard learned counsel for the parties and have gone through the impugned judgments carefully. 10. PW1, Kashmir Singh, is power of attorney of the plaintiffs. According to him, the plaintiffs are owners in possession of the suit land. On 27.8.1999, the defendant started digging the suit land from the side of his house with the help of 12-15 labourers. When he reached the spot, he noticed that the defendant had dug the land 50 feet in length, 5-7 = feet in depth and 8-9 feet in width. The defendant again dug the land about 35-40 feet in length and 13-14 feet in depth on 22.10.2001. It caused danger to their house. According to him, he had obtained the demarcation from Hari Chand Kanungo. The defendant again dug the land about 35-40 feet in length and 13-14 feet in depth on 22.10.2001. It caused danger to their house. According to him, he had obtained the demarcation from Hari Chand Kanungo. He also admitted that correction was made in his favour by the Sub Divisional Magistrate and against that correction, the defendant preferred an appeal before the Commissioner. The Commissioner had remanded back the case to Sub Divisional Magistrate. He further deposed that the plaintiffs had raised a retaining wall to their land which had collapsed in the year 2000. 11. PW2, Madan Lal, has prepared the site plan Ext.PW2/A. He had assessed expenses required for restoration of the land to its original position. His report and certificate of justification to this effect are Ext. PW2/B and Ext.PW2/C. He admitted that he had not associated the defendant at the time of visiting the spot, but explained that since he was not conducting demarcation, he did not associate the defendant. 12. PW3, Aseem Sen, deposed that on 27.8.1999 at about 10,00 A.M., when he was going to his shop and reached near the suit land, he noticed about 10-12 persons including Kashmir Singh and Mool Raj present on the spot. The son of the defendant was also there. They were arguing with each other. At that time, cutting work of the land was in progress by the defendant. He explained that the land of the plaintiff was on higher side and that of the defendant was on the lower level. 13. The defendant, Mool Raj appeared as DW1. According to him, he is owner of 1 Kanal land bearing Khasra No.160/722. He had purchased the land from one Sheela Devi on 18.5.1996. The plaintiffs raised retaining wall in their land in the year 1999. He started his construction work in the year 1997 and completed the same in the month of August 1998. He never dug the land of the plaintiffs. He admitted that the length of the retaining wall was about 50 feet and its height was 7-8 feet and at some places it was 4-5 feet. 14. DW2, Kamaljeet, deposed that the defendant had raised construction in his own land in the year 1997-98. He never dug the land of the plaintiffs. He admitted that the land of the defendant is at a lower level as compared to the land of the plaintiffs. 15. 14. DW2, Kamaljeet, deposed that the defendant had raised construction in his own land in the year 1997-98. He never dug the land of the plaintiffs. He admitted that the land of the defendant is at a lower level as compared to the land of the plaintiffs. 15. The defendant again appeared as DW3 in the witness box after the case was remanded back to the learned trial court. He deposed that the land of the plaintiffs is at a higher level. He admitted that the suit filed by him against the plaintiffs was dismissed. He also admitted that the appeal filed by him for correction of Karukans of his land was dismissed by the Financial Commissioner and this Court. 16. The version of PW1 Kashmir Singh has been duly supported by PW3 Aseem Sen. PW2 Madan Lal is an expert. He has proved his report Ext.PW2/B and Ext.PW2/C. The defendant has not led any evidence to establish that the plaintiffs have raised the retaining wall on his land in the year 1999. Even DW2 Kamaljeet has not supported the version of the defendants in this regard. According to the plaintiffs, as discussed herein above, the defendant started digging the suit land with the help of 12-15 labourers on 27.8.1999. The defendant admitted that the land of the plaintiff was on higher side. Though he has stated that the plaintiffs have encroached upon his land measuring 1 Marlas, however he has not filed any suit against the plaintiff nor has obtained any demarcation report. He has also admitted that the land of the plaintiff is also lying vacant. He has also admitted that the plaintiffs have raised retaining wall towards their land and the same has collapsed. The plaintiffs have led tangible evidence to prove that the defendant has withdrawn lateral/natural support to the house of the plaintiffs which has caused danger to the house of the plaintiffs. The defendant has lost the case for correction of the karukans upto this Court. Statement of PW1 has been duly corroborated by PW2 Madan Lal and PW3 Aseem Sen. The suit filed by the defendant against the plaintiffs has already been dismissed, as noticed herein above. 17. It is true that the case was remanded back to the learned trial court by the first appellate court. The plaintiffs were permitted to amend their plaint. Statement of PW1 has been duly corroborated by PW2 Madan Lal and PW3 Aseem Sen. The suit filed by the defendant against the plaintiffs has already been dismissed, as noticed herein above. 17. It is true that the case was remanded back to the learned trial court by the first appellate court. The plaintiffs were permitted to amend their plaint. The learned Advocate appearing on behalf of the plaintiffs made the statement that the plaintiffs did not want to lead any evidence in rebuttal. In other words, there was sufficient evidence on record. Rather the defendant has again appeared in the witness box and has made material admissions in his cross-examination, more particularly, that the land of the plaintiff was on the higher side and his land was on the lower side. The courts below have correctly appreciated the site plan, Ext.PW2/A, report Ext.PW2/B and Ext.PW2/C documents proved by PW2 Madan Lal. 18. In Dr. I.K.J. Jacob v. K. Nandagopalan and ors., AIR 1983 Kerala 177, learned Single Judge of Kerala High Court has held that 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. Learned Single Judge has held as under:- "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. 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. 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 issued to restore the lateral support by any means the court finds feasible." 19. In view of the discussions and analysis made herein above, 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.