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2014 DIGILAW 880 (HP)

Naina Devi v. Purnu Devi

2014-07-11

SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge. This appeal is directed against the impugned judgment and decree, rendered on 01.09.2001, by the learned District Judge, Kullu, H.P., in Civil Appeal No. 36 of 2001, whereby, the learned District Judge, Kullu dismissed the appeal preferred by the appellants/defendants. 2. The brief facts, of the case, are that the plaintiffs and proforma defendants no.5 to 10 are recorded owners in possession of the land measuring 1-11-0 bigha, comprised in khasra No.6132, Khata Khatauni No.58/142 situated at Phati Parli, Kothi Kot Kandi, Tehsil and District Kullu, H.P., in equal shares. On the aforesaid khasra number, the plaintiffs have 2 ½ storeyed residential house, along with, verandah, as, shown in the site plan by letter HMLK along with a court yard measuring 51’x29’ shown by letters FGHKSR. As per the site plan, appended with the plaint, on the eastern side of the aforesaid courtyard and house, there is a retaining stone wall of the height 5’ to 8’, as shown in the site plan by letter FGHM. The defendants No.1 to 4 have constructed a residential house on the eastern side of the aforesaid land on government land, which is at lower level and divided by the aforesaid retaining stone wall. It is pleaded that the defendants No.1 to 4 had earlier filed a civil suit No.152/1993 against plaintiff No.1 and proforma defendant No.9, which was dismissed on 3.8.1995 and consequent appeal was, also, dismissed on 27.11.1995. Thereafter, the plaintiff and defendant No.9 constructed a single storeyed tin roofed latrine, shown by letters TUVW in the site plan. The earlier suit of the defendants which was dismissed, also, pertains to the land on which the plaintiffs constructed latrine. Performa defendant No.9 being, the only son of the plaintiff No.1 was arrested in a criminal case and locked in judicial custody. Taking advantage of the absence of the male member in the house of the plaintiffs, defendants No.1 to 4 without any right, title or interest removed few stones of the retaining wall on eastern side of the latrine and constructed five steps for reaching the court-yard and latrine of the plaintiffs. Such act of the defendants, done on 5.5.1996 was illegal. Such act of the defendants, done on 5.5.1996 was illegal. They threatened the plaintiffs, when requested not to remove the stones from the retaining wall and also threatened them to demolish the retaining wall and proclaimed that latrine of the plaintiffs is not located on khasra No.6132, owned and possessed by the plaintiffs. 3. Defendants No.1 to 4 contested the case of the plaintiffs. They claimed that two latrines were constructed on the spot, out of which one belongs to the replying defendants. Claimed house of the plaintiff on khasra No.6132 was having verandah on three sides only and not on four sides. The claim of the plaintiffs qua court yard was denied. The retaining wall as claimed by the plaintiffs does not exist on the spot. Description of the house of the defendants and their own house given by the plaintiffs is stated to be wrong. It is claimed that on eastern side of the wall of the house of the replying defendants, there is a hard rock, which divides property of the plaintiffs from that of the defendants. It is pleaded that, in, the previous litigation, the matter was appreciated in the right perspective. The replying defendants stated to have constructed a latrine-cum-bath room on their own land. Adjustment of seat and digging soak-pit was got done from Block Development Officer, who engaged a contractor Shri Khem Chand. Said contractor also constructed latrines of the plaintiff and proforma defendants No.5 to 8. Interference as claimed is denied. It is pleaded that the land on which defendants constructed house was possessed by one Ram Lal for more than sixty years, who became owner in 1974. Thereafter, he transferred, through exchange, his possession and house, with Ram Diyal, predecessor-in-interest of the defendants qua 013-0 bigha of land of khasra No.3662, Khata Khatauni No. 177 min and 53 min. That land is possessed by the defendants. 4. The plaintiffs filed replication to the written statement of the defendants, wherein, they denied the contents of the written statement and re-affirmed and reasserted the averments made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues interse the parties in contest: 1. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 2. Whether the property has not been properly identified by the plaintiffs, if so, its effect? OPD 3. 5. On the pleadings of the parties, the learned trial Court struck following issues interse the parties in contest: 1. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 2. Whether the property has not been properly identified by the plaintiffs, if so, its effect? OPD 3. Whether the plaintiffs have suppressed the material facts from the Court, as alleged? OPD 4. Whether the plaintiffs have not come to the Court with clean hands? If so, whether the suit is liable to be dismissed? OPD 5. Whether the latrine constructed by the plaintiffs is at point-B, as shown in site plan? If so its effect? OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD 7. Relief. 7. On Appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs for permanent prohibitory injunction as also for mandatory injunction. In appeal, preferred by the defendants/appellants before the learned first Appeal Court, against the judgment and decree of the learned trial Court, the learned first Appellate court dismissed the appeal. 8. Now, the defendants/appellants have instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate court, in, its impugned judgment and decree. When the appeal came up for admission on 20.11.2002, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law: 1. Whether the learned District Judge, in the facts and circumstances of the case, has erred in not appreciating that there is no legal evidence on record to link courtyard, retaining wall, latrine, steps (stairs) in question with the ownership and possession of the plaintiffs and, therefore, they are not entitled for a decree of permanent prohibitory injunction and mandatory injunction? 2. Whether two Courts below in the facts and circumstances of the case have misconstrued, misinterpreted and misapplied the record and judgments of previous litigation between the parties and have also misconstrued, mis-interpreted and misapplied the other material on record in decreeing the suit of the plaintiffs? Substantial questions of law No.1 and 2. 9. 2. Whether two Courts below in the facts and circumstances of the case have misconstrued, misinterpreted and misapplied the record and judgments of previous litigation between the parties and have also misconstrued, mis-interpreted and misapplied the other material on record in decreeing the suit of the plaintiffs? Substantial questions of law No.1 and 2. 9. The learned trial Court while decreeing the suit of the plaintiff, on an appraisal of the evidence on record, had, concluded that given the admissions of the defendants and their witnesses, qua, the contentious fact of the defendants having raised/constructed the stairs for accessing their toilet, on the land owned and possessed by the plaintiffs/respondents, hence, on the strength thereof, had, concluded that the suit of the plaintiffs, necessitates its being decreed. Besides, given the fact of a previous lis inter partes, the parties at lis before this Court, as also, qua analogous cause of action, having culminated or consummated, in, a conclusive determination against the defendants, who, were the plaintiffs in the earlier suit, also, was construed by the learned trial Court, to be, rendering the contention, as, posed by the defendants/appellants of the suit property/suit land being rather owned and possessed by the defendants/appellants, to be rudderless. 10. The first Appellate court was beset with the legal conundrum qua the ownership and possession of the suit property. For setting at rest the controversy, as to whether the learned trial Court had been equipped with or was seized, of, adequate, cogent and sufficient material, displaying the fact that, the, location of the suit property was with exactitude, determined, to be, existing, on, the disputed khasra number or khasra numbers owned and possessed by the defendants/appellant, as, determined and concluded by the learned trial Court, the learned First Appellate court relied upon Ex.PA, the site plan prepared by PW-3 Nidhi Singh, a Bar Clerk. 11. The reliance placed by the learned first Appellate court on Ex. PA, prepared by PW-3 Nidhi Singh, a, Bar Clerk, is, misplaced and has sequelled gross and substantial miscarriage of justice and necessitates, the aforesaid substantial questions of law being answered, in, favour of defendants/appellants and against the plaintiffs/respondents for the reasons hereinafter. 11. The reliance placed by the learned first Appellate court on Ex. PA, prepared by PW-3 Nidhi Singh, a, Bar Clerk, is, misplaced and has sequelled gross and substantial miscarriage of justice and necessitates, the aforesaid substantial questions of law being answered, in, favour of defendants/appellants and against the plaintiffs/respondents for the reasons hereinafter. (a) The identity and location of the disputed khasra number was determinable only by a valid demarcation having been carried out by the competent Revenue Officer, which, PW-3 Nidhi Singh was not, hence, when PW-3 never enjoyed the capacity, to, demarcate the contiguous boundaries of the adjoining estates, of, the contesting parties for rendering, an, exact and precise determination/delineation qua the location of contentious/subject matter on the khasra number owned either by the defendants/appellants or by the plaintiffs/respondents. Therefore, it was insagacious for the learned first Appellate court, to, hence, rely upon Ex. PA, in, rendering the conclusion that, hence, it forthrightly and with candor, displayed the factum of the contentious subject matter being located upon the land owned and possessed by the plaintiffs/respondents. (b) Rather, the aforesaid precise determination could be, only, in consequence to or in sequel to a valid demarcation having been carried out by the competent Revenue Officer, and such a determination with precision and exactitude could alone have underscored, the location of the suit property, on the khasra number owned either by plaintiffs/respondents or the defendants/appellants. However, as adverted to hereinabove, Ex.PA has not been proved to be nor obviously has been drawn by a revenue expert or by a competent revenue officer, hence, it carries, no, probative worth and ought not to have weighed with the learned trial court, as well, as, with the first Appellate Court, in, rendering any conclusion on its strength, that, hence, the decree, as prayed for, by the plaintiffs/respondents, was renderable in their favour. 12. 12. Dehors the fact that this Court has concluded that the learned first Appellate Court had committed gross error of mis-appreciating the probative worth of Ex.PA, hence, rendering its judgment and decree anvilled upon, it, to be vitiated with a pervasive infirmity, also, it is necessary to dwell on the fact, that, both the Courts below have unnecessarily and without sufficient material on record displaying the factum of admission in the respective depositions of the defendants/appellants, decreed the suit of the plaintiffs/respondents, merely, on the strength of purported pleaded admission of the defendants qua the location of the contentious suit property on the land owned and possessed by the plaintiffs/respondents. Even assuming, that, there was a pleaded admission on the part of the defendants/appellants, qua ownership and possession of the constructed house on Khasra No. 3662 nonetheless, admission, if any, on the part of the defendants/appellants qua the facet aforesaid would, not, constitute an admission qua the fact of theirs having subjected the suit property to any construction, at their instance. Besides nor does the said admission existing in the pleadings of the defendants/appellants, constituting their acquiescence qua their having usurped the right of the plaintiffs/respondents over/upon the suit property. The admission, if any, even, it, emerges to the extent aforesaid, would carry weight only in the event of it, having been established that they were aware of the fact of exact location of the contentious suit property, on, the khasra number owned and possessed by the plaintiffs/respondents, which was possible, only, in the event of demarcation of the contiguous estates of the parties at lis, having been carried out, by the competent revenue officer, in, their presence. However, when, there is paucity of evidence, displaying the fact of demarcation having been carried out, at, the instance of the plaintiffs/respondents and its delineating, the, factum of the suit property being located on the disputed khasra number, the value of the pleaded admission, if any, hence, in the absence of apposite proof, thereof, in the manner aforesaid, by the defendants/appellant, is, of no consequence. Also, the previous judgment, if any, inter partes, the parties at lis before this Court, cannot, merely on the strength, of, exhibition of the previous judgment of the Civil Court of the competent jurisdiction, render, a, conclusion that, hence, there being a previous conclusive determination of an analogous subject matter in controversy, inter partes, the parties at lis before this Court, the instant suit is barred, unless, it was conclusively portrayed by cogent evidence comprised, in, the report of the revenue officer that, hence, location of the suit property, in, the previous judgments was, at, the site precisely the same, as, the location of the suit property, in, the lis inter partes at hand. 13. In view of above discussion, the appeal is allowed and the suit of the plaintiff is dismissed. As a result the judgments and decrees of both the learned first Appellate Court as also the learned trial Court are set aside. All the pending miscellaneous applications also stand disposed of.