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Himachal Pradesh High Court · body

2015 DIGILAW 1815 (HP)

Kr. Uday Singh v. Kali Ram

2015-12-08

RAJIV SHARMA

body2015
JUDGMENT : RAJIV SHARMA, J. 1. This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge, Shimla, H.P., dated 2.1.2003, passed in Civil Appeal No. 76-S/13 of 2000. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the predecessor-in-interest of plaintiff-respondent No. 1 Sh. Kali Ram and Chajju Ram have filed a suit against the respondents-defendants No. 3 & 4, namely, State of Himachal Pradesh and Executive Engineer for permanent prohibitory injunction from constructing Nerwa Paban road over the land defined in Khata Khatauni No. 5/6 comprising Kh. No. 1457, measuring 9-2 bighas and Khata Khatauni No. 6/7 min, comprising Kh. No. 1508/1506, measuring 4-11 bighas, situated in Chak Mukhranldi, Pargana, Peauntra, Tehsil Chopal, Distt. Shimla, H.P. (hereinafter referred to as the suit land). According to the averments contained in the plaint, they alongwith the proforma defendants were in possession of the suit land. There is an orchard over the suit land. The H.P. PWD, started the construction of Nerwa Paban road in the year 1995 and alignment of the road through the suit land was also carried out. 3. The suit was contested by defendants No. 3 & 4. It was admitted that the plaintiffs have raised orchard over the suit land. The road in question was being constructed through the Government land. The orchard of the plaintiffs was at a distance of 25 meters away from the road. It was denied that the road was passing through Kh. No. 1508/1506. The proforma defendants did not contest the suit. 4. The learned Sub Judge Ist Class, Chopal, Distt. Shimla, framed the issues on 29.6.1999. The suit was decreed vide judgment dated 30.9.1999. The appellants, who were not parties to the Civil Suit No. 23-1 of 1996 moved an application under Order 41 Rule 1 CPC for permission to assail the decree. The application was allowed by the learned first appellate Court on 6.1.2002. The learned Addl. District Judge, Shimla, dismissed the appeal on 2.1.2003. Hence, this regular second appeal. 5. The regular second appeal was admitted on 3.4.2003 on the following substantial questions of law: “1. The application was allowed by the learned first appellate Court on 6.1.2002. The learned Addl. District Judge, Shimla, dismissed the appeal on 2.1.2003. Hence, this regular second appeal. 5. The regular second appeal was admitted on 3.4.2003 on the following substantial questions of law: “1. Whether the findings of the Courts below are perverse, based on misreading of oral and documentary evidence, particularly writ petition marked “X” Jamabandi PW-1/B, PW-1/C and Tatima PW-1/D and ignores admissible and relevant evidence, demarcation report and the statement of plaintiff in the demarcation proceedings marked A & B? 2. Whether in view of the fact that the plaintiff had admitted that no part of the road was on Kh. No. 1457 and on demarcation were proved that the road was 25 ft. away from the land of the plaintiff and the Nerwa Pawan road had only been inaugurated was being used by the general public including the appellant, the plaintiff was entitled to the discretionary relief of injunction contrary to the public interest involved?” 6. Mr. K.D.Sood, Sr. Advocate, appearing on behalf of the appellants, on the basis of the substantial questions of law framed, has vehemently argued that the Courts below have not correctly appreciated the oral as well as documentary evidence, including revenue record. He then contended that the plaintiffs were not entitled for grant of discretionary relief of permanent prohibitory injunction. On the other hand, Mr. G.D.Verma, Sr. Advocate, for the respondents has supported the judgments and decrees of the learned Courts below. 7. Since both the substantial questions of law are inter-connected, hence are taken up together for discussion to avoid repetition of evidence. 8. I have heard the learned Senior Advocates and have also gone through the judgments and records of the case carefully. 9. PW-1 Chajju Ram deposed that the suit land is about 13-½ bighas. It was comprised in Kh. No. 1457 and 1508/1506. The apple orchard was existing on the suit land. The defendant while constructing Nerwa-Paban road used bulldozer over the suit land without the consent of the plaintiff. Notice Ext. PW-1/A was also issued to the defendants. He has placed on record copy of jamabandis Ext. PW-1/B and PW-1/C on record. 10. PW-2 Lachhmi Singh has corroborated the statement of PW-1 Chajju Ram. According to him also, defendants were threatening to raise construction over the suit land without acquiring the land. 11. Notice Ext. PW-1/A was also issued to the defendants. He has placed on record copy of jamabandis Ext. PW-1/B and PW-1/C on record. 10. PW-2 Lachhmi Singh has corroborated the statement of PW-1 Chajju Ram. According to him also, defendants were threatening to raise construction over the suit land without acquiring the land. 11. PW-3 Parmanand deposed that defendants were constructing road over the suit land without paying compensation. The plaintiffs have never given consent for the construction of road. 12. PW-4 Kali Ram has also corroborated the statement of PW-1 Chajju Ram. He also deposed that the defendants have not acquired the land nor any notice was served in this behalf. The fruit bearing apple orchard existed over the suit land. 13. PW-5 Gulab Singh has supported the version of the plaintiffs. According to him, the defendants were threatening to raise construction of road through the suit land. 14. DW-1 P.K.Tandon and DW-2 A.D.Dhiman, have denied that defendants were raising construction of Nerwa-Paban road through the suit land. 15. According to DW-2 A.D. Dhiman, the construction of the road was undertaken in the year 1995 to 1997 and the land of the plaintiffs was at a distance of 25 meters from the road. No loss was caused to the apple orchard of the plaintiffs. The defendants, in their written statement, have taken a specific stand that no road was carved out through Kh. No. 1508/1506 belonging to the plaintiffs and the road was constructed through the existing mule road. Thus, the plea raised by the appellants that plaintiffs were obstructing the construction of the road cannot be believed. The suit land could not be used by the State without acquiring the same. It is also proved from Ext. PW-1/B, copy of Jamabandi for the year 1987-88 and PW-1/C that the plaintiffs are the owners of the suit land. According to this revenue record, there existed apple orchard over the suit land and some part of the land is also cultivable. The Courts have correctly appreciated the oral as well as the documentary evidence, available on record. The appellants were not party to the lis decided by the learned Sub Judge, Chopal on 30.9.1999. In case they were aggrieved, they should have filed separate suit for redressal of their grievances. The substantial questions of law are answered accordingly. 16. The Courts have correctly appreciated the oral as well as the documentary evidence, available on record. The appellants were not party to the lis decided by the learned Sub Judge, Chopal on 30.9.1999. In case they were aggrieved, they should have filed separate suit for redressal of their grievances. The substantial questions of law are answered accordingly. 16. Consequently, there is no merit in this appeal and the same is dismissed. No costs.