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2014 DIGILAW 562 (HP)

Hakam Chand v. Torrent Pharmaceuticals Limited

2014-05-12

RAJIV SHARMA

body2014
Judgment : Justice Rajiv Sharma, Judge. This Regular Second Appeal is instituted against the judgment dated 7.5.2013 rendered by the District Judge, Solan in Civil Appeal No. 26-NL/13 of 2012. 2. Pertinent facts necessary for the adjudication of this appeal are that respondent-plaintiff (hereinafter referred to as “plaintiff” for convenience sake) filed suit for permanent prohibitory injunction against the appellants defendants (hereinafter referred to as “defendants” for convenience sake). Plaintiff-company was incorporated under the provisions of Indian Companies Act. It has registered office at Torrent House, Ashram Road, Ahmedabad. Plaintiff being owner in possession of the suit land measuring 1 bigha 16 biswas bearing khasra Nos. 1448/1235 as comprised in Khata Khatauni No. 252/265, land measuring 6 bighas 13 biswas bearing Khasra Nos. 1449/1235 (2-6) and 1452/1235 (4-7) as comprised in Khata Khatauni Nos. 248/261, land measuring 5 bighas 6 biswas, bearing Khasra No. 1450/1235 as comprised in Khata Khatauni Nos. 250/263, land measuring 3 bighas 16 biswas bearing Khasra Nos. 1435/1235 (2-10) as comprised in Khata Khatauni No. 249/262, land measuring 5 bighas 6 biswas bearing khasra No. 1454/1235 as comprised in Khata Khatauni Nos. 251/264 pertaining to and situated in the area of village Bhud, Hadbast No.188, Pargana Dharampur, Tehsil Baddi, District Solan, H.P., had raised a factory building covered by a boundary wall for manufacturing pharmaceutical products. It started functioning in the year 2005. Defendant Nos. 1 to 7 are co-owners of land measuring 5 bighas 17 biswas, bearing Khasra No.1239 and land measuring 1 bigha 7 biswas, bearing Khasra No.1240 as comprised in Khata Khatauni Nos.129/136 and 255/268, respectively as detailed in the jamabandi for the year 1998-99. Defendant Nos. 1 to 7 are co-owners of adjoining land measuring 7 bighas 4 biswas and have given their land on contract to defendant No.8 Gurbachan Singh for excavating and lifting earth from the above said land. The boundary wall has collapsed due to excavation carried by defendant Gurbachan Singh at the instance of other defendants. 3. Suit was contested by the defendants. According to the defendants, plaintiff has raised boundary wall of six meters height without laying proper foundation. The wall has been raised without properly constructing ‘Dunga’. The wall has caused damage to their land also. 4. Replication was filed by the plaintiff. Learned Civil Judge (Senior Division) framed issues on 5.10.2009. Suit of the plaintiff was decreed by the Civil Judge (Senior Division) on 20.9.2012. The wall has been raised without properly constructing ‘Dunga’. The wall has caused damage to their land also. 4. Replication was filed by the plaintiff. Learned Civil Judge (Senior Division) framed issues on 5.10.2009. Suit of the plaintiff was decreed by the Civil Judge (Senior Division) on 20.9.2012. Defendants were permanently restrained from interfering, dispossessing or causing any damage to the boundary wall and factory building of the plaintiff situated over the suit land by excavating and lifting soil from their land near and to the root of the boundary wall of the plaintiff company. Defendants feeling aggrieved by the judgment dated 20.9.2012 preferred an appeal before the District Judge, Solan. He dismissed the same on 7.5.2013. Hence, the present appeal. 5. Mr. Dinesh Bhanot, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below have not properly appreciated the oral as well as documentary evidence. 6. Mr. Suneet Goel 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 judgments of both the courts below carefully. 8. It is evident from the Jamabandi Ex.PW-1/F to Ex.PW-1/K that the suit land is owned by the plaintiff company. Presumption of truth is attached to these Jamabandis. Defendants have not led any evidence to rebut the same. It is admitted case of the parties that defendants are owners of the adjoining land comprising Khasra Nos. 1239 and 1240, as per Jamabandis Ex.PW-1/L and Ex.PW-1/M. 9. PW-1 Aghosh Gopalan has testified that defendants have started excavating their adjoining land and they are lifting the soil adjoining to the boundary wall constructed by the plaintiff around the suit land due to which damage is likely to be caused to the boundary wall. The boundary wall is likely to collapse. According to him, plaintiff being owner in possession of the suit land has raised building covered by boundary wall for manufacturing pharmaceutical products in the year 2005. Defendants No.1 to 7 have given their land on contract to defendant No.8 for excavating and lifting earth from their land. The contractor was doing the work of excavating and lifting earth under the instructions and in connivance with remaining defendants. 10. Defendants No.1 to 7 have given their land on contract to defendant No.8 for excavating and lifting earth from their land. The contractor was doing the work of excavating and lifting earth under the instructions and in connivance with remaining defendants. 10. PW-2 Ashish Sharma has taken the photographs Ex.PW-2/C to Ex.PW-2/H. He has proved Ex.PW-2/J. Other photographs were Ex.PW-2/K to Ex.PW-2/N, Ex.PW-2/P to Ex.PW-2/X and C.D. is Ex.PW-2/Y. 11. Plaintiff Company has also examined constable Ishwar Dass as PW-3. He has proved reports Ex.PW-3/A and Ex.PW-3/B. It is evident from the contents of these reports that the police has visited the spot and found that defendants were excavating and lifting earth from their land through J.C.B. It is proved from the statements of PW-2 Ashish Sharma and PW-3 Ishwar Dass that defendants were digging the land in the manner which has exposed the foundation of plaintiff’s boundary wall. 12. DW-1 Hakam has led his evidence by way of affidavit. According to him, plaintiff has raised wall without constructing Dunga. According to him, there were cracks in the wall. He has admitted in his cross-examination that the land was adjoining to the suit land. He has denied the photographs Ex.PW-2/C to Ex.PW-2/H. He has admitted that the police had visited the spot. He has also deposed that the wall has collapsed due to high velocity winds and the defendants had requested the plaintiff to raise boundary wall properly. 13. Defendants have not led any evidence except the bald statement that the wall has collapsed due to high velocity. Defendants have no absolute right to excavate land in the manner as to cause damage to the boundary wall by excavating the soil adjoining to the boundary wall of the plaintiff. Plaintiff has absolute right to use its property and the same cannot be put to peril by the defendants by digging the land in close proximity of the boundary wall. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties. 14. 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.