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2016 DIGILAW 670 (HP)

Lachhmi Ram v. Roop Ram

2016-05-04

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. This Regular Second Appeal under Section 100 of the Code of Civil Procedure (for short the ‘Code’) is preferred against the concurrent findings recorded by the learned Courts below whereby the suit filed by the plaintiff/appellant (hereinafter referred to as the plaintiff) for injunction was though partly decreed, but his claim for damages and mandatory injunction was ordered to be dismissed. The facts, in brief, may be noticed thus. 2. The plaintiff filed a suit for permanent prohibitory and mandatory injunction and for recovery of damages on the allegations that he is owner in possession of double storied house situate over Khasra No. 436 which was constructed by him in the year 1975 by spending huge amount of money. The defendants No.1 to 3/respondents (hereinafter referred to as the defendants) had started digging work just below his house in a rash and negligent manner thereby causing danger to the house of the plaintiff. Eventually, the house collapsed on 09.09.2005 and whatever little remained, the same developed crakes thus causing damage of Rs.1,22,000/-. 3. The defendants contested the suit by filing written statement raising therein various preliminary objections like cause of action, mis-joinder of necessary parties, non-valuation of the suit property and maintainability etc. On merits, it was averred that the suit land was joint between the parties and there was no rash and negligent act on the part of the defendants which may have led to the collapse of the house of the plaintiff, as alleged. 4. The learned Trial Court framed the following issues:- “1. Whether the plaintiff is entitled for decree of Rs.1,22,000/-as damages caused to house of plaintiff due to negligent acts of defendants with interest as claimed? OPP. 2. Whether the plaintiff is entitled for decree of mandatory injunction as claimed? OPP. 3. Whether the plaintiff is entitled for decree of permanent prohibitory injunction as prayed? OPP. 4. Whether the plaintiff has no cause of action as alleged? OPD. 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD. 6. Whether the suit is bad for mis-joinder of defendants No.2 & 3 as alleged? OPD. 7. Whether the suit is not maintainable as alleged? OPD. 8. Whether the house existing over Khasra No.436 was joint property of plaintiff & defendants, if so, its effect? OPD. 9. OPD. 6. Whether the suit is bad for mis-joinder of defendants No.2 & 3 as alleged? OPD. 7. Whether the suit is not maintainable as alleged? OPD. 8. Whether the house existing over Khasra No.436 was joint property of plaintiff & defendants, if so, its effect? OPD. 9. Whether the house existing over Khasra No.436 was constructed by the plaintiff as claimed? OPP 10. Relief.” 5. The learned trial Court after recording the evidence and evaluating the same partly decreed the suit for injunction, whereas, the claim for damages was dismissed. 6. Aggrieved by the judgment and decree, the plaintiff approached the first appellate Court which too dismissed the appeal and it is against the findings recorded by the learned Courts below that the plaintiff has filed the instant second appeal. 7. Mr. Anupinder Rohal, learned counsel for the appellant has vehemently argued that the findings recorded by the learned Courts below are totally perverse and based on misreading, mis-appreciation and misconstruction of pleadings of the parties as also oral and documentary evidence available on record. I have heard the learned counsel for the parties and gone through the records of the case. 8. The specific case of the plaintiff as set out in the plaint was that he in the year 1975 had constructed a house over Khasra No.436 which was in his exclusive possession, though the suit property was joint between the parties. To prove this fact, the plaintiff has placed on record copy of jamabandi for the year 2003-04 Ex.PW3/B wherein Khasra No.439 is recorded in the joint ownership and possession of the co-owners. He has further placed on record copy of jamabandi for the year 2003-04 Ex.PW3/C wherein Khasra No.436 is again recorded in the ownership of the co-sharers, whereas, it is recorded in the exclusive possession of the plaintiff. 9. However, during the cross-examination, the plaintiff has categorically stated that the disputed house was situate over Khasra Nos.439 and 440 and not over Khasra No.436 which evidently is not the case set up in the plaint. In this manner, the plaintiff has contradicted his own case that his house which was situate over Khasra No.436 had been damaged on account of unscientific digging carried out by defendants No.1 to 3. In this manner, the plaintiff has contradicted his own case that his house which was situate over Khasra No.436 had been damaged on account of unscientific digging carried out by defendants No.1 to 3. Once, the plaintiff himself was not sure regarding the precise location of his house and further his cross-examination being in total variation to his pleaded case in the plaint, the learned Courts below, in my considered view, committed no illegality or irregularity in dismissing the suit for damages. 10. As noted by the Hon’ble Privy Council in Siddik Mahomed Shah versus Mt.Saran and others AIR 1930 PC 57 and thereafter by the Hon’ble Supreme Court in M/s Trojan and Co. versus RM.N.N. Nagappa Chettiar AIR 1953 SC 235 when the evidence is not in line with the pleadings and is at variance with it, as in this case in virtual self contradiction, adverse inference has to be drawn and the evidence cannot be looked into or relied upon. 11. In Kashi Nath versus Jaganath (2003) 8 SCC 740 , the Hon’ble Apex Court observed that in case of finding of fact, the High Court cannot re-appreciate the evidence and interfere with the concurrent findings of fact of the Court below. It is also held that when there is variance between pleadings and evidence, such evidence cannot be relied upon. However, the adverse inference is to be drawn when the pleadings and evidence are self-contradictory. 12. Insofar as the injunction is concerned, as observed earlier, the defendants were duly restrained by the learned Courts below from raising any further construction or changing the nature of the suit land as comprised in Khasra No.439. 13. The findings recorded by both the Courts below are pure findings of fact which normally cannot be interfered with by this Court in exercise of its powers under Section 100 of the Code. 14. No question of law much less substantial question of law arises for consideration. Consequently, the appeal is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.