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2015 DIGILAW 818 (HP)

Ram Saran v. Gorakh Ram

2015-07-03

RAJIV SHARMA

body2015
Judgment : Justice Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Hamirpur, H.P., dated 20.11.2002, passed in Civil Appeal No.02 of 1996. 2. Key facts, necessary for the adjudication of this regular second appeal are that the predecessor-in-interest of Sh. Gorakh Ram and Khembo Ram, respondents-plaintiffs (hereinafter referred to as the plaintiffs) instituted a suit for permanent prohibitory injunction against the predecessor-in-interest of appellants-defendants namely, Sh. Ram Saran (hereinafter referred to as the defendant). According to the plaintiffs, they along with other co-sharers were owners-in-possession of the land comprised in Khata No. 34 min, Khatoni No. 67 min, Kh. No. 239, measuring 2 kanals 6 marlas, situate in Tika Doli Sujanpur, Tappa Bhaleth, Sub Tehsil Sujanpur, Distt. Hamirpur, H.P. (hereinafter referred to as the suit land). The defendant has no right, title or interest over the suit land. The defendant being a head-strong and quarrelsome person, has started giving illegal and unwarranted threats by forcibly raising construction over the suit land. 3. The suit was contested by the defendant. According to the defendant, his land adjoins the land of the plaintiffs. The plaintiffs were threatening to dispossess the defendant by raising construction. 4. The replication was filed by the plaintiffs. The defendant also filed counter claim under Order 8 Rule 6-A CPC. He was owner-in possession of the land comprised in Khata No. 35 min, Khatoni No. 68 min, Kh. No. 241, measuring 8 kanals 16 marlas, situate adjacent to the suit land and the plaintiffs were threatening to dispossess him under the garb of stay order. The written statement was also filed to the counter claim by the plaintiffs. According to them, the defendant has constructed the house over a part of Kh. No. 239, despite the stay orders granted by the trial Court. The learned Senior Sub Judge, Hamirpur, H.P. framed the issues on 6.1.1993. The learned Senior Sub Judge, Hamirpur, H.P, decreed the suit on 13.11.1995. The defendant, feeling aggrieved, preferred an appeal before the learned District Judge, Hamirpur. The learned District Judge, Hamirpur, dismissed the same on 20.11.2002. Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial question of law on 22.9.2003: “1. Whether report of the Local Commissioner Ext. The defendant, feeling aggrieved, preferred an appeal before the learned District Judge, Hamirpur. The learned District Judge, Hamirpur, dismissed the same on 20.11.2002. Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial question of law on 22.9.2003: “1. Whether report of the Local Commissioner Ext. LC/1 being contrary to the instructions of the Financial Commissioner and against the High Court Rules and orders could not have been read in evidence and impugned judgments and decrees solely passed upon the same, thus, stand vitiated and liable to be quashed and set aside?” 6. Mr. Ajay Sharma, Advocate, for the appellants, on the basis of the substantial question of law framed, has vehemently argued that the report of the Local Commissioner Ext. LC/1, is contrary to the instructions of the Financial Commissioner and also against the High Court Rules and Orders. He also argued that the cross-objections preferred by his client have not been decided in accordance with law. On the other hand, Mr. Anand Sharma, Advocate, for the respondents has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 8. Sh. Sarwan Ram, general power of attorney of the plaintiffs, has appeared as PW-1. According to him, the ad-interim injunction was granted on 25.9.1992. The defendant, though stopped the construction for 4-5 days, however, has again started the same. The defendant has started digging foundations over the suit land for the purpose of construction of house. The plaintiffs requested the defendant not to do so, but the defendant did not stop the work. The Local Commissioner was appointed, but the defendant did not stop the construction work. He denied the suggestion that defendant has constructed the house on his own land, though he has stated that about 3-4 marlas of the suit land has been covered by the defendant under the house. 9. The defendant has appeared as DW-1. According to him, he has constructed his house over Kh. No. 241, owned and possessed by him. He got the land demarcated in the year 1991 and thereafter he dug the foundations for his house and completed the house in the month of February, 1992. Thereafter, there was ad-interim injunction from the Court. 9. The defendant has appeared as DW-1. According to him, he has constructed his house over Kh. No. 241, owned and possessed by him. He got the land demarcated in the year 1991 and thereafter he dug the foundations for his house and completed the house in the month of February, 1992. Thereafter, there was ad-interim injunction from the Court. According to him, the plaintiffs wanted to encroach upon his land comprising in Kh. No. 241. In his cross-examination, he admitted that his brother Anant Ram has also filed a civil suit against the plaintiffs. According to him, no Local Commissioner went on the spot. 10. DW-2 Sh. Girdhari Lal testified that the defendant has constructed his house over Kh. No. 241. He was resident of Village Doli whereas the suit land is situated in Tikka Sujanpur. 11. DW-3 Sant Ram also belongs to Village Doli. According to him, the demarcation of the land was not got conducted. According to the defendant, he had completed the construction of the house in the month of February, 1992, however, DW-3 Sant Ram mason has admitted that he has in fact started raising the construction of the house of the defendant in the year 1992. 12. Sh. Kuldeep Kumar, Advocate was appointed as Local Commissioner in an application filed under Order 26 Rule 9, read with Section 151 CPC, which was registered as CMA No. 536 of 1994. He was directed to visit the spot and report whether some construction was being raised on the spot and the nature and extent thereof. Sh. Kuldeep Kumar, Advocate, visited the spot and found the construction being raised on the spot. He recorded the statements of the plaintiffs and also the brother of the defendant. 13. Sh. Sohan Lal, Naib Tehsildar, Sujanpur, was appointed as Local Commissioner to demarcate the suit land as well as Kh. No. 241 on the spot and to find out whether any encroachment over the suit land has been made by the defendant or not. The Local Commissioner, visited the spot on 31.1.1993. He submitted the report Ext. LC/1. 14. It is evident from the perusal of the report that the plaintiffs and the defendant were present on the spot. The defendant has agreed with the Local Commissioner’s report. The objections filed with the Local Commissioner’s report were also dismissed. The Local Commissioner, visited the spot on 31.1.1993. He submitted the report Ext. LC/1. 14. It is evident from the perusal of the report that the plaintiffs and the defendant were present on the spot. The defendant has agreed with the Local Commissioner’s report. The objections filed with the Local Commissioner’s report were also dismissed. The Local Commissioner has demarcated the land strictly as per the instructions issued by the Financial Commissioner. Both the parties had agreed to the measurement and mode of demarcation. The parties have admitted the demarcation to be true and correct. No objection was raised by any of the parties on the spot. The statements of the parties are on record i.e. Ext. LC/2. The Local Commissioner has found encroachment of one marla by the defendant as per ‘Sajra Latha’ Ext. LC/3 on Kh. No. 239/1. The demarcation was carried out strictly as per the instructions issued by the Financial Commissioner as well as by this Court. 15. Now, as far as the counter claim raised by the defendant is concerned, issue No. 2 was specifically framed by the trial Court on 6.1.1993. Issues No. 1 & 2 were tried together. Issue No. 1 was decided in favour of the plaintiffs and issue No. 2 was decided against the defendant. The findings of the learned trial Court are based on correct appreciation of oral as well as documentary evidence and it cannot be said that the counter claim preferred by the defendant was not at all adjudicated upon. The defendant has not even raised this question while preferring an appeal before the learned first appellate Court. Moreover, no substantial question of law as to whether the counter claim was not adjudicated upon was framed at the time of admission of this Regular Second Appeal. This Court has still gone into the merits of this issue, raised by the defendant for the first time before this Court, in order to do complete justice between the parties. 16. Consequently, there is no merit in this appeal and the same is dismissed.