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2015 DIGILAW 1236 (HP)

Tej Ram v. Girdhari Lal deceased through his LRs

2015-09-04

DHARAM CHAND CHAUDHARY

body2015
Judgment : Dharam Chand Chaudhary, Judge (Oral) This judgment shall dispose of this appeal and the connected one, RFA No. 71 of 2005, arising out of the common judgment and decree dated 24.12.2004 passed by learned Additional District Judge, Kinnaur at Rampur Bushahr in Civil Suits No. 09 of 2001 and 11 of 2001. 2. The subject matter of dispute in both suits is land entered in Khata Khatoni No. 22/43, Khasra No. 845/565, measuring 1 Bigha 2 Biswas, situate in revenue estate Khawangi, Tehsil Kalpa, District Kinnaur. Plaintiff-respondent Girdhari Lal (since dead) in this appeal is father of respondent Bharat Bhushan in connected appeal. Deceased Girdhari Lal purchased the suit land from defendant No. 4 Niranjan Singh (since dead), the predecessor-in-interest of appellants No. 1 to 3 (hereinafter referred to as defendant) in a sum of Rs.1,000/- on behalf of his son Bharat Bhushan aforesaid. Deceased defendant Niranjan Singh allegedly put the plaintiffs in possession of the suit land. They raised construction of a house and started residing in a portion thereof, whereas, a portion thereof rented out to tenants. Defendants No. 1 to 3 through their mother Nariya Devi instituted a suit bearing No. 32/1 of 1978 (40/1 of 1974) for declaration that the suit land being ancestral, their father deceased defendant No. 4 Niranjan Singh could not alienate the same without legal necessity. The sale deed executed on 27.01.1973 in favour of Bharat Bhushan through his father deceased Girdhari Lal was stated to be wrong illegal and void and mutation No. 2010 attested and sanctioned on 22.06.1973 on the basis thereof was also stated to be wrong, illegal and void and not binding on the defendants. A decree for permanent prohibitory injunction restraining the plaintiffs from raising construction over the suit land was also sought. 3. The plaintiffs had resisted and contested the suit and learned Senior Sub Judge, Kinnaur at Kalpa after holding full trial dismissed the same while holding that defendants No. 1 to 3 in the matter of sale of the suit property could not bind their father, defendant No. 4, Niranjan Singh. The appeal bearing No. 18/S-113/1988/87 preferred by defendants No. 1 to 3 was dismissed by learned Additional District Judge, Shimla vide judgment and decree dated 12.06.1989. The defendants, however, assailed the judgment and decree passed by learned Additional District Judge, Shimla in this Court by filing RSA No. 475 of 1989. The appeal bearing No. 18/S-113/1988/87 preferred by defendants No. 1 to 3 was dismissed by learned Additional District Judge, Shimla vide judgment and decree dated 12.06.1989. The defendants, however, assailed the judgment and decree passed by learned Additional District Judge, Shimla in this Court by filing RSA No. 475 of 1989. This Court vide judgment and decree dated 12.06.89 reversed the judgment and decree passed by both Courts below and decreed the suit. The plaintiffs herein assailed the judgment and decree passed by this Court before the Hon’ble Apex Court. The petition filed for seeking leave to appeal was allowed and the appeal admitted for hearing. In the interim, the apex Court vide order dated 16.01.1998 stayed the operation of the judgment and decree passed by this Court in RSA No. 475 of 1989. 4. The complaint is that despite the execution of the judgment and decree of this Court having been stayed by the apex Court, the defendants started interference with the ownership and possession of the plaintiffs over the suit land under the garb of the judgment and decree passed by this Court and started pressurizing the plaintiffs to deliver the possession of the suit land and also vacant possession of the house in existence thereon. The plaintiffs had been compelled to report the matter to the local police. When the police failed to take action, Sh. C.P. Pandey, Advocate representing the plaintiffs in the Supreme Court served defendants No. 1 to 3 with legal notice. The defendants were requested not to dispossess the plaintiffs from the suit land and the house in existence thereon, but of no avail, as the defendants forcibly took over the possession of two rooms of the house constructed by the plaintiffs over the suit land. The tenants inducted by the plaintiffs were also directed not to pay the rent to the plaintiffs and to the contrary, defendants No. 1 to 3 started collecting the rent themselves. This had led in institution of a Contempt Petition against them in the apex Court. The counsel representing the defendants made a statement during the course of contempt proceedings that out of two rooms, possession of one room had already been handed over to the plaintiffs and that possession of another room shall also be handed over to them within four weeks. The counsel representing the defendants made a statement during the course of contempt proceedings that out of two rooms, possession of one room had already been handed over to the plaintiffs and that possession of another room shall also be handed over to them within four weeks. The counsel later on informed the apex Court that keys of another room were not available being misplaced and as such vide order passed on 10.03.2000, in the contempt proceedings, the apex Court directed the plaintiffs to take over the possession of another room by breaking open the lock, if necessary and disposed of the contempt proceedings. The plaintiffs allegedly were harassed mentally and physically, hence the suits for recovery of Rs.6,00,000/- each as compensation against the defendants. 5. The defendants in the written statement have raised preliminary objections qua maintainability of the suit and averred that in view of the pendency of special petition for leave to appeal in the apex Court, the proceedings in both suits are liable to be stayed. On merits, it is denied that the suit land was sold to plaintiff Bharat Bhushan and possession on his behalf was delivered to his father deceased Girdhari Lal. It is also denied that the plaintiffs had constructed the house over the suit land. The factum of institution of suit by them against the plaintiffs, dismissal thereof by the trial Court, dismissal of appeal by the Additional District Judge, Shimla and reversal of the judgment and decree passed by both Courts below in the second appeal by this Court, however, is admitted. It is also admitted that the plaintiffs had instituted special leave petition against the judgment and decree passed by this Court before the Hon’ble apex Court. They, however, expressed their ignorance qua the interim order passed by the Hon’ble apex Court on 16.01.1998. It is denied that they have ever interfered with the possession of the plaintiffs over the suit land, as according to them plaintiffs were never in possession of the suit land. The application made by the plaintiffs to the police is stated to be false and frivolous. The contempt proceedings were also stated to be falsely instituted by the plaintiffs against them in the Supreme Court. According to defendants, they never disobeyed any order passed by the Supreme Court. 6. The plaintiffs also filed replication to the written statement filed in the suits. 7. The contempt proceedings were also stated to be falsely instituted by the plaintiffs against them in the Supreme Court. According to defendants, they never disobeyed any order passed by the Supreme Court. 6. The plaintiffs also filed replication to the written statement filed in the suits. 7. With the consent of the parties, both suits were consolidated for common trial. On the pleadings of the parties following issues were framed in Civil Suit No. 9/01: 1. Whether the plaintiff purchased land described in Khata Khatoni No. 22/73, Khasra No. 845/565 from defendant No. 4 through registered sale deed on 27.1.1973? OPP. 2. If issue No. 1 is proved whether the plaintiff had been handed over the possession of the land purchased by him vide sale deed, dated 27.1.1973 ? OPP. 3. Whether the plaintiff along with his family is residing in the house constructed y him in the suit land? OPP. 4. Whether the defendants No. 1 to 4 had been notified of stay granted by the Hon’ble Supreme Court of judgment and decree, dated 28.7.1997, passed in RFA No. 475/89 by the Hon’ble High Court ? OPP. 5. Whether the defendants No. 1 to 4 trespassed into the suit property and had thereby caused physical, mental and monetary loss to the plaintiff? OPP. 6. Whether defendants No. 1 to 4 had harassed and tortured the plaintiff, as alleged ? OPP. 7. If issues No. 5 and 6 are proved to what amount of damages is the plaintiff entitled? OPP. 8. Whether the plaintiff has not legally and properly verified the plaint, if so with what effect? OPP. 9. Whether the plaintiff has grossly overvalued the suit, if so with what effect? OPD. 10. Whether the plaintiff has no legal and enforceable cause of action ? OPD. 11. Whether the plaintiff is estopped from filing the suit by his act and conduct? OPD. 12. Whether the suit of the plaintiff is liable to be stayed as stated in para 5 of the preliminary objections of the written statement? OPD. 13. Whether the suit is bad for non-joinder of necessary parties? OPD. 14. Whether the plaintiff has no locus-standi to file the suit and the suit is not competent in the present form? OPD. 15. Relief. 8. The parties were put to trial on all the issues so framed. OPD. 13. Whether the suit is bad for non-joinder of necessary parties? OPD. 14. Whether the plaintiff has no locus-standi to file the suit and the suit is not competent in the present form? OPD. 15. Relief. 8. The parties were put to trial on all the issues so framed. Deceased plaintiff Girdhari Lal in Civil Suit No. 9/01 has stepped in the witness box as PW-1, whereas, plaintiff Bharat Bhushan in connected suit as PW-2. They have examined Sh. Ramesh Negi, Advocate as PW-4 to prove that the interim order passed by the apex Court was duly notified to the defendants. PW-5 Sh. Surat Ram has been examined to prove rapat No. 13 Ext.PW5/A. On the other hand, defendant No. 1 Sh. Tej Ram has stepped in the witness box as DW-1 and also examined Sh. Chander Prakash as DW-2. 9. Learned trial Court on appreciation of the evidence adduced by the parties on both sides while answering issues No. 1 to 3 altogether concluded that the suit land has been purchased by the plaintiffs from defendant No. 4 and that after having put in possession thereof, they had constructed a house and started residing in the said house. While answering issue No. 4, learned trial Court has arrived at a conclusion that the interim order passed by the Hon’ble apex Court on 16.01.1998 was duly notified to the defendants. The said defendants were found to have trespassed in the suit property and thereby harassed the plaintiffs. In Civil Suit No. 9 of 2001, while answering issue No. 7, decree for recovery of Rs.25,000/-, whereas, in Civil Suit No. 11 of 2001, decree for recovery of Rs.1,51,300/- have been passed. The remaining issues No. 8 to 14 qua maintainability, valuation, cause of action, estoppel, non-joinder of necessary parties and locus-standi, however, have been answered in negative against the defendants. Both the suits have, therefore, been decreed for the recovery of Rs.25,000/- and Rs.1,51,300/- each respectively. 10. The defendants feeling aggrieved and dissatisfied by the judgment and decree passed by learned trial Court have questioned the legality and validity of the impugned judgment on the grounds, inter alia, that both Courts below have erred in law while deciding all the issues against them. The findings recorded are contrary to the given facts and circumstances and also the evidence available on record. The findings recorded are contrary to the given facts and circumstances and also the evidence available on record. There being no iota of evidence qua plaintiffs in possession of the suit land or having been dispossessed forcibly by the defendants, the findings to the contrary are neither legally nor factually sustainable. The evidence available on record is stated to be not appreciated in its right perspective and to the contrary, the findings have been recorded on mere assumptions and presumptions. The judgment and decree passed in both suits have, therefore, been sought to be quashed and suit dismissed. 11. On hearing learned counsel for the parties and going through the record, following points arise for determination in these appeals: 1.) Whether the judgment and decree under challenge in these appeals are not legally and factually sustainable? 2.) Final Order. 12. As noticed above, the respondents-plaintiffs in both suits had sought decree for the recovery of Rs.6,00,000/- each, against the appellants-defendants towards damages, they allegedly suffered on account of the conduct and various acts of omission and commission attributed to the latter and as a result of which they suffered irreparable loss and injury not only to their person but to reputation also. The acts of omissions and commission have been explained by the plaintiffs in paragraphs 11, 12 and 13 of the plaint which reads as follows: “11. That the defendants No.1 to 4 forced their entry after the stay order was issued by the Hon’ble Supreme Court. The defendants No.1 to 4 started threatening and harassing the plaintiff through various means. The defendants proclaimed that if the plaintiff and his father including all the family members do not leave the suit property and hand over the suit property to the defendants they would be physically harmed and in order to facilitate entry in the suit property pasted a hand bill out side the property wherein a warning had been issued to all the tenants residing in the suit property. This was an intentional and deliberate act, the defendants No.1 to 4 broke upon two small rooms in a portion of the suit property and after taking away a sewing machine and khaddi had placed their own locks on these two small rooms. The plaintiff submitted a complaint to the SHO of the concerned Police Station and defendants No.1 to 4 were summoned to the Police Station. The plaintiff submitted a complaint to the SHO of the concerned Police Station and defendants No.1 to 4 were summoned to the Police Station. The defendants No.1 to 4 had so much influence with the SHO and his subordinate staff that instead of action taken against the present defendants the SHO threatened the plaintiff with dire consequences and arrested him. The plaintiff was taken to Police Station, although he was seriously ill at that time. He was threatened by the present defendants in the presence of the police that if he pursued the matter further he would be thrashed and taught a lesson. 12. That a certified copy of the order of the Hon’ble Supreme Court dated 16.1.1998 was produced before the SHO on 26.1.1998 and on seeing this, the defendants No.1 to 4 observed that such orders could be purchased or procured. In spite of all this defendants No.1 to 4 were allowed to leave the Police Station and no action was taken against the defendants by the police. On the same day, i.e. 26.1.1998 all the defendants came to the residence of the plaintiff and threatened with dire consequences, if the possession of the property was not handed over to them, the defendants also stated that if the plaintiff or his family members did not get out the said property they would be killed and physically harmed. The defendants had thus committed criminal trespass and criminal intimidation without any jurisdiction. It is submitted that had the SHO taken action against the defendants and arrested them with criminal offences which they had committed the situation would not have arisen at the instant. The defendants even disobeyed the orders of the Hon’ble Supreme Court dated 26.1.1998. 13. That the plaintiff had no option but to file a petition for Contempt before the Hon’ble Supreme Court which was registered as Contempt Petition No.67/99. This Contempt Petition came up for hearing/consideration on 4.4.2000. Ms. Madhu Mool Chandani, Advocate had put in appearance on behalf of the respondents/defendants No.1 to 3 and made a statement before the Hon’ble Supreme Court that, out of two rooms possession of one room had already been taken over by the present plaintiff. She further stated that defendants No.1 to 3 will give possession of second room also. The defendants were allowed to comply with the order of the Hon’ble Apex Court within four weeks. She further stated that defendants No.1 to 3 will give possession of second room also. The defendants were allowed to comply with the order of the Hon’ble Apex Court within four weeks. When the Contempt Petition was again taken up on 10.3.2000, the Ld. Counsel appearing for defendants No.1 to 3 made a statement before the Hon’ble Supreme Court that key of the second room was not readily available, although the room was lying vacant. The Hon’ble Supreme Court in the circumstances observed that the plaintiff may taken over possession of the room even on breaking the lock if necessary. This shows the conduct of defendants No.1 to 3 and the least regard they had for the rule of law. In this Contempt Petition the plaintiff had stated that the stay order which was passed by the Hon’ble Supreme Court had not been complied with by the present defendants and in spite of the knowledge of the stay order the defendants No.1 to 4 had forced their entry into the suit property on 26.1.1998 forcibly. It may be stated that although the appeal is still pending before the Hon’ble Supreme Court. This Contempt Petition was finally disposed of on 10.3.2000 with the observation that since possession has been regained by the plaintiff, no further action was necessary.” 13. The damages the respondents-plaintiffs claimed on different heads are as under: “17. That plaintiff was so much disturbed from the acts and conduct of defendants No.1 to 4, that he remained hospitalized for many days at Civil Hospital, Kalpa and at Indira Gandhi Medical College, Shimla. He suffered a heart attack. Even today he is on medicine. Ever since the judgment of the Hon’ble High Court in RSA No.475/89, and till his filing an appeal before the Hon’ble Supreme court and obtaining stay orders on 16.1.1998, the defendants No.1 to 4 had been continuously harassing him, causing him mental tension, carrying malicious/against him in his relations, the plaintiff has suffered irreparable loss, personal injury to his reputation. The plaintiff is thus filing the instant suit for damages: 1. Damages for medical expenses Incurred Rs.50,000/- 2. Damages for torture and Mental harassment Rs.4,00,000/- 3. Damages for loss of reputation. Rs.1,50,000/- Total damages claimed. Rs.6,00,000/- 14. The plaintiff is thus filing the instant suit for damages: 1. Damages for medical expenses Incurred Rs.50,000/- 2. Damages for torture and Mental harassment Rs.4,00,000/- 3. Damages for loss of reputation. Rs.1,50,000/- Total damages claimed. Rs.6,00,000/- 14. As noticed hereinabove, the present lis has arisen from a previously instituted suit bearing No.40/74 filed by the defendants herein against the respondents-plaintiffs for declaration to the effect that sale deed of a piece of land executed by their predecessor-in-interest late Shri Niranjan, defendant No.4 in favour of the respondents-plaintiffs was illegal, null and void and mutation attested on the basis thereof in their names is also null and void and not binding on the defendants herein. Anyhow, that suit came to be dismissed by learned Senior Sub Judge, Kinnaur at Recong Peo and the appeal preferred in the District Court also met the same fate as it was dismissed by learned District Judge, Shimla. This Court in RSA No.475 of 1989, however, reversed the judgment and decree passed by both Courts below and decreed the suit vide judgment and decree dated 28.7.1997. The present respondents-plaintiffs had taken the matter to the Hon’ble Apex Court by way of filing a petition seeking leave to appeal and the Apex Court vide order dated 16.1.1998 stayed the operation of the judgment and decree passed by this Court. 15. The defendants after the judgment and decree passed by this Court in RSA No.475 of 1989 on 28.7.1997, however, started pressurising the respondents-plaintiffs to hand over the possession of the suit land and the house in existence thereon, which as per the evidence to be discussed hereinafter, was not in their possession. It is such coercive steps and threatening held out by the defendants to the plaintiffs and the tenants they inducted in the suit house allegedly led in harassment as well as mental and physical torture to the plaintiffs besides their reputation lowered down, hence the suit for recovery of Rs.6 lacs by each of the respondents-plaintiffs against the defendants. 16. It is such coercive steps and threatening held out by the defendants to the plaintiffs and the tenants they inducted in the suit house allegedly led in harassment as well as mental and physical torture to the plaintiffs besides their reputation lowered down, hence the suit for recovery of Rs.6 lacs by each of the respondents-plaintiffs against the defendants. 16. It is seen from the judgment and decree under challenge that learned trial Judge has assessed the damages by taking into consideration the use and occupation charges qua two rooms @ Rs.5000/- per month and awarded damages to the tune of Rs.1,25,000/- for the period from 26.1.1998 to 10.3.2000 plus Rs.1300/- rent of the two rooms realized by the defendants from the tenants and Rs.25,000/- towards the loss he sustained on account of pain and sufferings. Therefore, a sum of Rs.1,51,300/- in all was awarded as damages in favour of respondent-plaintiff Bharat Bhushan against his claim of Rs.6 lacs. As regards deceased respondent-plaintiff Girdhari Lal, the suit filed by him has also been decreed, however, only for the recovery of Rs.25,000/- on account of pain and sufferings caused to him. 17. Before coming to the correctness of the findings recorded by learned trial Court, it is desirable to discuss the nature of the damages, the respondents-plaintiffs allegedly suffered on account of the so called acts of omission and commission attributed to the defendants. The damages are of two kinds, i.e. general and special. The general damages are not required to be proved specifically for the reason that the same are legally considered to be pecuniary reparation for the damage having arisen from an inquiry, hence cannot be separately pleaded or proved. On the other hand, special damages are in the form of pecuniary loss, such as, medical expenses incurred upon for the bodily harm or loss of business or any other pecuniary loss which can be calculated with all exactness and accuracy. In an action of tort, the wrong doer is liable to pay all the damages flowing from the wrongful act directly. 18. In order to succeed in a suit for recovery of damages, plaintiff is required to plead and prove that the defendant in spite of knowing fully well that he is not entitled to a relief for want of sufficient grounds acted with ulterior motive. 18. In order to succeed in a suit for recovery of damages, plaintiff is required to plead and prove that the defendant in spite of knowing fully well that he is not entitled to a relief for want of sufficient grounds acted with ulterior motive. If the plaintiff pleads and proves the damages caused to him in accordance with the above legal parameters, Court should grant substantial damages towards the loss caused to the person, property and reputation of the plaintiff. 19. In the case in hand, this Court has decreed the suit for the relief of declaration and possession in favour of the defendants while allowing the appeal (RSA No.475/89) they preferred vide judgment dated 28.7.1997. The operation of the judgment and decree passed by this court was stayed by the Hon’ble Apex Court in an appeal preferred by the respondents-plaintiffs herein vide order dated 16.1.1998. The possession of the suit land and also the house in existence thereon was with the respondents-plaintiffs. The judgment and decree passed by this Court in RSA No.475/89 had definitely extended a right in favour of the defendants to initiate execution proceedings for the recovery of the possession of the suit property. The execution petition, as per the testimony of Shri Ramesh Negi PW4 was filed on 7.1.1998 i.e. well before the interim order passed by the Apex Court on 16.1.1998. The proceedings in the execution petition came to be stayed on 30.4.1998 on production of stay order passed by the Hon’ble Supreme Court by the respondents-plaintiffs, in the trial Court. The complaint is that the defendants well before the institution of the execution petition had forcibly occupied two rooms of the house in existence over the suit land and started collecting rent also from the tenants. Since the onus to prove so is on the plaintiffs therefore, it is desirable to make reference to the evidence as has come on record by way of their own testimony and also the witnesses they examined. The examination-in-chief of both plaintiffs, who stepped into the witness box as PW1 and PW2 is reproduction of the contents of the plaints in verbatim. It is not proved from their testimony in the examination-in-chief as to when they were actually dispossessed from the two rooms. 20. If coming to the testimony of PW1 in the cross-examination, the report was lodged by him in the Police Station on 26.1.1998. It is not proved from their testimony in the examination-in-chief as to when they were actually dispossessed from the two rooms. 20. If coming to the testimony of PW1 in the cross-examination, the report was lodged by him in the Police Station on 26.1.1998. He also tells us about some report lodged in the Police Station in the month of December, 1997, at such a stage when copy of stay order was not received by him, however, no other and further evidence to corroborate the same has been produced. As regards the report lodged on 26.1.1998, the copy thereof is Ext.PW5/A proved by Shri Surat Ram PW5, the then I.O. Police Station, Recong Peo. The testimony of PW5, if gone into as a whole, reveals that during the course of investigation he conducted, no quarrel between the parties qua the property in dispute was found to have taken place. Even the parties did not pick up any quarrel in his presence in the Police Station in his presence qua the possession of the property in dispute. 21. Anyhow, from the evidence so come on record, it is proved that at the instance of deceased plaintiff Girdhari Lal the report Ext.PW5/A was lodged in Police Station, Recong Peo on 26.1.1998. PW1 Girdhari Lal has admitted that as per the judgment and decree passed by this Court, the defendants were declared owners of the suit land. He also admitted that they were legally entitled to file execution petition to get the judgment and decree executed. He also admitted that the day when the defendants filed the execution petition in the trial Court, they were not served with the stay order passed by Hon’ble Supreme Court. Similar is the version of PW-2 Bharat Bhushan in his cross-examination. He also tells us that report in Police Station was lodged against the defendants on 26.1.1998, however, deny the suggestion that on the report so lodged, the police failed to take any action, as according to him both parties were called to Police Station. Therefore, he has stated contrary to the version of his father Girdhari Lal PW1, as according to him no action was taken by the police on the report lodged on 26.1.1998. Therefore, he has stated contrary to the version of his father Girdhari Lal PW1, as according to him no action was taken by the police on the report lodged on 26.1.1998. He has also contradicted PW1 on the aspect of lodging a report prior to 26.1.1998, because the suggestion that prior to 26.1.1998, no report was lodged against the defendants, has been admitted by him to be correct, whereas as per the version of his father PW1, prior to 26.1.1998, report was lodged by him in the month of December, 1997. 22. PW2 also admits the filing of execution petition by the defendants in the Court of Senior Sub Judge, Kinnaur, well before the Hon’ble Supreme Court passed the stay order. The suggestion that the tenants at their own sweet will made the payment of rent to the defendants though has been denied by this witness, however, the suggestion so put to this witness reveals that defendants collected the rent from the tenants. 23. Now if coming to the evidence as has come on record by way of the testimony of defendant Tej Ram, who has stepped into the witness box as DW1, in his cross-examination, has admitted the construction of a house over the suit land by the plaintiffs. Also that the possession of the suit property was not handed over to the defendants by any one in execution of the judgment and decree passed by this Court in their favour. In the same breath he, however, has stated that the possession of the suit property was with them and not with the plaintiffs. He further admits that the possession of the suit property was delivered by them to the plaintiffs consequent upon the order passed by the Supreme Court. He has blown hot and cold qua construction of the suit house, as at one stage he has stated that the same was constructed by his father, however, in the same breath admitted the suggestion that one house over the suit land was constructed by the plaintiffs. 24. If coming to the testimony of DW-2 Chander Prakash, while stating that he had taken on rent residential portion of the house of the plaintiff, has proved plaintiffs’ case qua existence of their house over the suit land and he having been inducted as tenant by them therein. 24. If coming to the testimony of DW-2 Chander Prakash, while stating that he had taken on rent residential portion of the house of the plaintiff, has proved plaintiffs’ case qua existence of their house over the suit land and he having been inducted as tenant by them therein. As per his further version, he had been paying the rent of accommodation under his use and occupation to the plaintiffs. Later on he was informed by the defendants that they had been successful in the case they filed in the Hon’ble High Court and asked him to pay rent to them instead of the plaintiffs. The defendants, however, did not pick up any quarrel with the plaintiffs in his presence. In his cross-examination he has stated that finding dispute qua the ownership and possession of the house between the parties, he vacated the same. 25. The re-appraisal of the evidence as aforesaid, leads to the only conclusion that the plaintiffs’ case qua the defendants started interference in their possession over the suit property after the appeal they preferred was allowed by this Court, stands duly proved from the evidence discussed hereinabove. 26. The filing of execution petition on 7.1.1998 is not a circumstance to be taken against the defendants for the reason that by that time, the Hon’ble Supreme Court had not passed stay order in the appeal, the plaintiffs preferred. The interim order was passed on 16.1.1998. Though the defendants have expressed their ignorance qua the same, however, Rapat Ext.PW5/A dated 26.1.1998 disclose the factum of filing the appeal by the plaintiffs in the Supreme Court. Though defendant No.1 claims that he was not present on 26.1.1998 at Recong Peo and rather at Nalagarh, his place of posting, however, PW-5 Surat Ram, IO is specific in stating that the said defendant was present in the Police Station and he even was interrogated also in the Police Station on that day. Therefore, it would not be improper to conclude that if not earlier, at least on 26.1.1998, the defendants came to know about the pendency of appeal in the Supreme Court and the order staying the judgment and decree passed by this Court. The defendants, as per own testimony of DW-1, by that time had occupied two rooms in the suit house and they did not vacate the same till the contempt proceedings initiated against them and the orders Exts. The defendants, as per own testimony of DW-1, by that time had occupied two rooms in the suit house and they did not vacate the same till the contempt proceedings initiated against them and the orders Exts. P6 and P7 passed in the contempt proceedings on 4.2.2000 and 10.3.2000, respectively. It is recorded in the order Ext.P6 that learned counsel representing the defendants made a submission before the Apex Court that out of two rooms, possession of one room was already taken over by the plaintiffs and the possession of the second room was undertaken to be given by the defendants to them. On the next date, i.e. 10.3.2000, the Hon’ble Apex Court was apprised by learned counsel, representing the defendants that since the key of the second room was not readily available, therefore, the same irrespective of lying vacant, the possession thereof could not be given to the plaintiffs. It is on such statement, Hon’ble Apex Court has permitted the plaintiffs to take possession of the room by breaking open the lock, if necessary and disposed of the contempt proceedings. Meaning thereby that two rooms were occupied by the defendants without initiating execution proceedings and order in this regard passed by the Executing Court, as the execution petition later on was stayed on production of the stay order by the plaintiffs before learned trial Court. The possession of the rooms could only be got delivered to the plaintiffs-respondents at the intervention of the Hon’ble Apex Court in contempt proceedings. While the possession of one room was already given on 4.2.2000, the Apex Court ordered the plaintiffs to take the possession of the second room even by breaking open the lock vide order dated 10.3.2000, Ext.P-7. 27. The acts of omission and commission on the part of the defendants including taking over the possession of the suit property even without any order passed by the competent Court in execution proceedings definitely constitutes cruelty mental as well as physical towards the plaintiffs. They are, therefore, entitled to the recovery of damages against the defendants. 28. The question that the damages as awarded are just and reasonable has also to be adjudicated upon in the light of the evidence available on record. The defendants as noticed hereinabove, had taken possession of two rooms forcibly from the plaintiffs. They are, therefore, entitled to the recovery of damages against the defendants. 28. The question that the damages as awarded are just and reasonable has also to be adjudicated upon in the light of the evidence available on record. The defendants as noticed hereinabove, had taken possession of two rooms forcibly from the plaintiffs. Although cogent and reliable evidence qua exact date and month has not been produced by the plaintiffs, yet the date of reporting the matter to the police, i.e. 26.1.1998, by them has rightly been taken as the date of their dispossession, because the Rapat Rojnamcha Ext.PW5/A entered at their instance stands proved from their own testimony and also that of PW-2 SI Surat Ram, the then IO, Police Station, Recong Peo. Learned Trial Court has assessed the damages on account of forcible dispossession of the plaintiffs from two rooms @ Rs.5000/- per month w.e.f. 26.1.1998 till 10.3.2000, the day when the Apex Court directed the plaintiffs to take back the possession of another room also, may be by breaking open the lock. The period of dispossession has, therefore, been worked out by learned trial Court as 25 months, in all. On behalf of the appellants-defendants, it has been urged that Rs.5000/- was not at all rent of 2 rooms in that area during the period from January, 1998 to March, 2000 and also that even as per own case of the plaintiffs, the defendants had collected rent of two rooms amounting to Rs.1300/- in all. It has, therefore, been urged that rent of 2 rooms was not more than Rs.500/- per month. 29. As rightly observed by learned trial Court that in a case of this nature where the plaintiffs have been dispossessed forcibly without resorting to due process of law, it is not the rental value to be taken into consideration and rather the harassment caused to them and loss to their reputation caused by such illegal acts attributed to the defendants-appellants should weigh with the Court. However, irrespective of the conclusion so drawn by this Court, assessment of Rs.5000/- per month towards the damages payable to the plaintiffs was slightly on higher side. I, therefore, reduce the same to Rs.3000/- per month. Therefore, the plaintiff Bharat Bhushan in Civil Suit No.11 of 2001, on this score, is entitled to a sum of Rs.75,000/- as damages. 30. However, irrespective of the conclusion so drawn by this Court, assessment of Rs.5000/- per month towards the damages payable to the plaintiffs was slightly on higher side. I, therefore, reduce the same to Rs.3000/- per month. Therefore, the plaintiff Bharat Bhushan in Civil Suit No.11 of 2001, on this score, is entitled to a sum of Rs.75,000/- as damages. 30. As regards the damages @ Rs.25,000/- each assessed and awarded by learned trial Court towards harassment as well as pain and sufferings caused to the plaintiffs on account of the acts of omission and commission attributed to the defendants-appellants is concerned, no interference qua the same in this appeal is warranted. The payment of Rs.1300/- by the defendants to the plaintiffs, on account of rent as collected by them from the tenants, is absolutely justified and no interference qua the same is also required. Final Order In view of what has been said hereinabove, RFA No.71 of 2005 partly succeeds and the same is accordingly allowed. The amount of Rs.1,25,000/- towards damages awarded on account of forcible dispossession of plaintiff-respondent Bharat Bhushan is reduced to Rs.75,000/-. The impugned judgment and decree will stand modified only to this extent. The present appeal, however, being without any merit is dismissed and the judgment and decree passed by learned trial Court affirmed. No order so as to costs. Both appeals are disposed of accordingly.