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Himachal Pradesh High Court · body

2016 DIGILAW 1976 (HP)

Bhupinder Singh v. Devinder Singh

2016-09-15

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. This appeal has been filed by the appellants/defendants against the judgment and decree passed by the Court of learned District Judge, Mandi in Civil Appeal No. 36 of 2003 dated 13.01.2005 vide which, learned appellate Court while allowing the appeal filed therein by the present respondent No. 1, has set aside the judgment and decree passed by the Court of learned Senior Sub Judge, Mandi in Civil Suit No. 108/1999 dated 18.01.2003 and decreed the suit so filed by the plaintiff for mandatory injunction by directing the appellants/defendants to remove the construction raised by them on the portion of suit land shown by pink colour in map Ex. PW3/A within 3 months from the date of said judgment. 2. This appeal was admitted on 13.09.2005 on the following substantial questions of law:- “1. Whether the first appellate Court erred in ignoring the material evidence on record which if considered the first appellate Court would have reached the opposite conclusion?” 3. Brief facts necessary for the adjudication of the present case are that respondent No. 1/plaintiff (hereinafter referred to as ‘the plaintiff’) filed a suit for permanent prohibitory and mandatory injunction against the present appellants/defendants (hereinafter referred to as ‘the defendants) on the grounds that land comprised in Khata Khatauni No. 117/715, bearing Khasra Nos. 2201, 2202, 2203 and 2525/2205, Kita 4 measuring 544-27 Sq. mtrs. situated at Mauja Magwain/366/8, Tehsil Sadar, District Mandi was jointly owned by plaintiff, defendant No. 1 as well as proforma defendants, as per Jamabandi for the year 1994-95. As per the plaintiff, the aforesaid Khasra numbers were adjacent to each other and they consisted one plot and all the owners of these Khasra numbers by mutual consent had divided this plot in four parts in the year 1990 as the plaintiff had shown his “willingness” to raise construction over the joint land. Further, as per the plaintiff, the plot allocated to him was in two parts on the spot and one portion was at higher level/elevation as compared to the other. Similar was the location of the plot of the defendants. According to the plaintiff, he started raising construction over a part of the portion of his plot which was at lower level in the year 1991 and completed one story in the same year. Similar was the location of the plot of the defendants. According to the plaintiff, he started raising construction over a part of the portion of his plot which was at lower level in the year 1991 and completed one story in the same year. He left two feet vacant land from the boundary line in between plot of the plaintiff and defendants and the wall of his house. Further, as per the plaintiff, he extended eves of his slab on the ground floor on that vacant space to the extent of 1½ feet. Defendants also started raising construction in the year 1992 at the lower level over his plot and he suggested to the plaintiff that he would also attach the eves of his slab with the eves of their house on the boundary of two plots and both of them also agreed to keep some vacant space on the boundary of their plot and also agreed to keep said space as common path to go to both the houses and as such, on the vacant space on the boundary of both the houses, stairs were made and since then, both the parties were enjoying those stairs as common for the purpose of going to their houses. Further, as per the plaintiff, defendants with the malafide intention to use these stairs for their exclusive purpose, started raising construction of latrine on the front from where there was a bifurcation of path to both the houses since 13.08.1999 and defendants completed it within two days when the plaintiff and his family members were away from the suit premises and in this manner, defendants completely blocked the common path and he also covered the area beneath the eves of the plaintiff’s house. As per the plaintiff, defendants were also using the wall of the plaintiff as common wall to that latrine. On these basis, a suit was filed by the plaintiff praying for decree of mandatory injunction as well as permanent prohibitory injunction against the defendants. 4. Defendants No. 1 and 2 in the written statement filed by them, denied the claim of the plaintiff by stating therein that the plaintiff had no enforceable cause of action to institute the suit which otherwise was time barred. 4. Defendants No. 1 and 2 in the written statement filed by them, denied the claim of the plaintiff by stating therein that the plaintiff had no enforceable cause of action to institute the suit which otherwise was time barred. According to the defendants, the factum of plaintiff having completed his construction in the year 1991 was admitted, but rest of the contentions of the plaintiff were denied. According to the said defendants, plaintiff had carried out construction in excess of his share. Defendants denied any agreement regarding the vacant space to be kept as path to go to the respective houses and stairs of plaintiff and defendants. According to defendants No. 1 and 2, they had not given any such right of common use to the plaintiff. It was denied by the defendants that there was any common wall in between constructions carried by plaintiff and defendants No. 1 and 2. Existence of a common path, stair case etc. was denied. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues:- “1. Whether the plaintiff is entitled for mandatory injunction as prayed? OPP 2. Whether the plaintiff is entitled for Permanent Prohibitory Injunction as prayed? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the suit of the plaintiff is barred by period of limitation? OPD 6. Relief. 6. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed:- “Issue No. 1 : No. Issue No. 2 : No. Issue No. 3 : No. Issue No. 4 : No. Issue No. 5 : No. Relief : Suit dismissed as per operative part of judgment.” 7. Accordingly, vide judgment and decree dated 18.01.2003, learned trial Court dismissed the suit of the plaintiff. 8. Feeling aggrieved by dismissal of his suit, plaintiff filed an appeal. Learned appellate Court vide judgment and decree dated 13.01.2005 accepted the said appeal and decreed the suit of the plaintiff for mandatory injunction by directing the defendants to remove the construction raised by them on the portion of the suit land shown by pink colour in map Ex. 8. Feeling aggrieved by dismissal of his suit, plaintiff filed an appeal. Learned appellate Court vide judgment and decree dated 13.01.2005 accepted the said appeal and decreed the suit of the plaintiff for mandatory injunction by directing the defendants to remove the construction raised by them on the portion of the suit land shown by pink colour in map Ex. PW3/A. Judgment so passed by learned first appellate Court has been challenged by way of present appeal. 9. I have heard the learned counsel for the parties and have also gone through the records of the case as well as the judgments passed by both the learned Courts below. 10. A perusal of the judgment passed by learned trial Court demonstrates that it was held by learned trial Court that plaintiff did not produce any site plan to demonstrate that both plaintiff and defendants had kept vacant space towards each others plots as agreed between them and had also connected their respective slabs and had agreed to use three feet space between two houses as common path and had also constructed stairs, though it was admitted by the plaintiff that he had got plan of his house sanctioned which was lying with him. Learned trial Court further held that there was no written agreement/partition placed on record regarding the factum of leaving 1 ½ feet space by both the parties. It was further held by learned trial Court that no demarcation or measurement of the area of the house of the plaintiff and defendants was placed on record and on these basis, it was difficult to believe the version of the parties with regard to leaving of vacant space and construction of common stairs by both the parties. It was further held by learned trial Court that the plaintiff could have had produced the plan of the house of the defendants in case he had made any deviation or had encroached upon more area than that was sanctioned by the Municipal Committee. It was further held by learned trial Court that it was admitted case of both the parties that the suit land was still joint and some portion of the same was vacant which was also joint and was liable to adjusted at the time of final partition. It was further held by learned trial Court that it was admitted case of both the parties that the suit land was still joint and some portion of the same was vacant which was also joint and was liable to adjusted at the time of final partition. On these basis, it was held by learned trial Court that it could not be said that the plaintiff was in exclusive possession of any portion of the suit land and he was entitled to any relief of mandatory or prohibitory injunction until the suit land was partitioned in accordance with law. 11. Learned appellate Court while reversing the said findings held that it was admitted case of the parties that the entire suit land was joint and a part of it was allotted to the plaintiff in the year 1990 for raising construction of his house. It was further held by learned appellate Court that it had come in the statement of the plaintiff that he constructed his house in the year 1990 and the defendants constructed their house in the year 1992 and both kept one and half feet vacant land in between their houses to be used as common path. It was further held by learned appellate Court that according to plaintiff while he was away, defendants No. 1 and 2 constructed a latrine on the common path and blocked the same in the year 1999 and for this purpose, defendants also used one of the walls of the house of the plaintiff. It was further held by learned appellate Court that the path in dispute and the stairs in dispute were on the portion which was under the joint possession of the plaintiff and the defendants and on these basis, learned appellate Court held that it can further be presumed that the stairs might have been constructed jointly by the parties and by construction of latrine and bath room by the defendants, the user of the stairs has been denied by the plaintiff. While arriving at these conclusions, learned appellate Court relied upon the report of the Local Commissioner, in which as per learned appellate Court it was mentioned that both latrine on the ground floor and bath room on the first floor had been constructed by the defendants under the projections and slab of the house of the plaintiff also. While arriving at these conclusions, learned appellate Court relied upon the report of the Local Commissioner, in which as per learned appellate Court it was mentioned that both latrine on the ground floor and bath room on the first floor had been constructed by the defendants under the projections and slab of the house of the plaintiff also. It was further held by the learned appellate Court that the contention of the learned counsel for the respondents therein (i.e. the present appellants) to the effect that the suit land had not been partitioned between the parties by metes and bounds and hence plaintiff cannot claim exclusive possession of the stairs was true, but for both the parties, i.e. plaintiff and the defendants. On these basis, it was held by learned appellate Court that even the defendants cannot claim exclusive ownership and possession of the stairs. It was further held by learned appellate Court that the factum of obstruction being caused by the defendants despite objection of the plaintiff was evident from the statement of the plaintiff and that of PW-2 Netar Singh, who was related both to the plaintiff and the defendants. On these basis, it was held by learned appellate Court that defendants had raised construction of their latrine and bath room despite objection of the plaintiff and by their this act, the right of the plaintiff to use the property had been adversely affected. Accordingly, while allowing the appeal, learned appellate Court decreed the suit of the plaintiff for mandatory injunction directing the defendants to remove the construction raised by them in the portion of the suit land shown by pink colour in map Ex. PW3/A. 12. In the present case, it is a matter of record that during the pendency of the appeal before the first appellate Court, a Local Commissioner was appointed who submitted his report dated 11.01.2005, which has been taken into consideration by learned appellate Court while deciding the appeal. As per records, no objection was filed to the said report of Local Commissioner by either of the parties. The relevant part of the report of the Local Commissioner is quoted hereinbelow:- “i. Whether by construction of the latrine in the ground floor and bath room, in the first floor, defendant Bhupinder has covered the projection of the house of the appellant Devinder? The relevant part of the report of the Local Commissioner is quoted hereinbelow:- “i. Whether by construction of the latrine in the ground floor and bath room, in the first floor, defendant Bhupinder has covered the projection of the house of the appellant Devinder? On this respect, it is submitted that on the spot Bhupinder Singh respondent has constructed a Latrine on the ground floor and bath room in the 1st floor and has constructed half of the abovesaid latrine under the projected slab (Chhaja) of Devinder appellant which is about 16 Inch in Breadth and 3 feet in length and has also constructed a bath room in the first floor in the like manner. ii. Whether the wall of the house of Devinder has also been included by the defendant in his latrine and bath room? With respect to this point, it is submitted that no wall relating to the house of Devinder has been included by the defendant Bhupinder. iii. Whether both the parties are having projection over the stairs in dispute? With respect point No. 3, it is submitted that Devinder appellant has 19 Inch and defendant Bhupinder has 21 Inch projection over the stairs in dispute.” 13. Relying upon the report of the said Local Commissioner, it was held by the learned appellate Court that both the plaintiff and defendants were having projections of their houses towards the alleged common path and projection of the house of the plaintiff measures 19 inches and that of the defendants measures 21 inches over the stairs in dispute. It was further held by the learned appellate Court that it was also mentioned in the report that both latrine on the ground floor and bath room on the first floor had been constructed by the defendants upon the projections and slab of the house of the plaintiff also. On these basis, it was concluded by learned appellate Court that the projection was constructed to cover the area of the house and the area of the house can be taken to the extent to which the projection goes. On these basis, it was concluded by learned appellate Court that the projection was constructed to cover the area of the house and the area of the house can be taken to the extent to which the projection goes. Thereafter, learned appellate Court went on to hold that the contention of learned counsel for the respondents therein, i.e. the present appellants to the effect that house of the plaintiff cannot be considered up to the level to which the projection of his house goes and the area in between the house of the plaintiff and the house of the defendants was in possession of the defendants cannot be accepted because “the area under the house is to be presumed of the person who owns the house.” On these basis, it was held by learned appellate Court that it can safely be said that path in dispute and the stairs in dispute were on the portion which was under the joint possession of the plaintiff and the defendants and appellate Court further went on to hold that “if it is so, it can further be presumed that the stairs might have been constructed jointly by the parties and by construction of latrine and bath room by the defendants the user of the stairs has been denied to the plaintiff.” 14. Before the learned trial Court, there were specific issues framed; (i) whether the plaintiff is entitled for mandatory injunction as prayed?; and further (ii) whether the plaintiff was entitled for permanent prohibitory injunction?. After appreciating the evidence which was placed on record both by the plaintiff and the defendants, it was held by learned trial Court that there was neither any written family partition nor any agreement adduced on record by the plaintiff regarding the parties having agreed to keep vacant space of 1 ½ feet towards the plots of each other. It was further held by learned trial Court that there was no demarcation or measurement of the area of the house of the plaintiff and the defendants and, therefore, it was difficult to believe the version of the parties with regard to leaving of vacant space and construction of common stairs by both the parties. It was further held by learned trial Court that there was no demarcation or measurement of the area of the house of the plaintiff and the defendants and, therefore, it was difficult to believe the version of the parties with regard to leaving of vacant space and construction of common stairs by both the parties. Learned trial Court further held that plaintiff did not produce any site plan, though it was the case of the plaintiff that he had got the plan of his house sanctioned and this was available with him. It was further held by learned trial Court that there was no evidence regarding the total area and the area which in fact had come in the respective share of the parties and it was an admitted fact of both the parties that the suit land was still joint and some portion of the land which was vacant was also joint and was liable to be adjusted at the time of final partition. On these basis, it was held by learned trial Court that it cannot be said that the plaintiff was in exclusive possession of any portion of the suit land and he was not entitled for the relief of mandatory and prohibitory injunction till the suit was partitioned. These findings given by learned trial Court were assailed in the appeal. Learned appellate Court rather than adjudicating the appeal by discussing the findings arrived at by learned trial Court and thereafter adjudicating on the basis of the contentions urged by both the parties as to whether the findings so arrived at by learned trial Court were sustainable or not went on to set aside the judgment and decree passed by learned trial Court by arriving at conclusions based on assumptions and presumptions. This is evident from the findings returned in the judgment passed by learned appellate Court wherein after coming to the conclusion that path in dispute and the stairs in dispute were on the portion which was under the joint possession of the plaintiff and the defendants, it was further held by learned appellate Court that it can be presumed that the stairs might have been constructed jointly by the parties and by construction of latrine and bath room by the defendants, the user of the stairs has been denied to the plaintiff. 15. 15. I am afraid that the findings so arrived at by learned appellate Court are not sustainable. The findings of fact by a Court of law cannot be based on presumptions. On the basis of material adduced on record by both the parties, the Court has to give a definite finding. 16. Learned trial Court after appreciating material on record held that the plaintiff failed to prove that he was in exclusive possession of any portion of the suit land and on these basis, learned trial Court declined the relief of mandatory and prohibitory injunction in favour of the plaintiff. This Court is not making any observation as to whether the finding so returned by learned trial Court was correct or not. However, in my considered view, in case the finding arrived at by learned trial Court was to be set aside or distinguished by learned appellate Court, then it was obvious that after taking into consideration the reasonings behind the findings so arrived at by learned trial Court, learned appellate Court should have had returned its independent findings which were to be arrived at on the basis of material on record and not on the basis of conjectures, surmises or presumptions. However, this has not been done by the learned appellate Court in the judgment under challenge. 17. It is well settled law that the first appellate Court is the final Court of fact ordinarily and therefore a litigant is entitled to a full, fair and independent consideration of the evidence at the appellate stage and anything less than this is unjust to him. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court and first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on question of fact and law. It is settled law that while reversing a finding of fact, the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate court had discharged the duty expected of it. It is settled law that while reversing a finding of fact, the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate court had discharged the duty expected of it. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues involved in the case alongwith the contentions put forth and pressed by the parties for decision by the appellate Court. 18. In view of the above salutary principles, I am of the considered view that the learned appellate Court has failed to discharge the obligation placed on it as first appellate Court by deciding the appeal on presumptions rather than returning its findings by coming close quarters with the reasoning assigned by the learned trial Court and thereafter assigning its own reasons for arriving at a different finding. Substantial question of law is answered accordingly. 19. In view of the discussion held above, the appeal is allowed and judgment and decree dated 13.01.2005 passed by the Court of learned District Judge, Mandi in Civil Appeal No. 36 of 2003 are set aside. The case is remanded back to learned appellate Court with a direction to decide the appeal afresh on merits. Parties through their counsel are directed to put in appearance before the learned appellate Court on 17.10.2016. Keeping in view the fact that case pertains to the year 1999, this Court hopes and trusts that learned appellate Court shall adjudicate upon the appeal as expeditiously as possible. No order as to costs. Miscellaneous applications, if any, also stands disposed of. Registry is directed to return back the records of the case to learned appellate Court forthwith.