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2016 DIGILAW 816 (HP)

Partap Chand v. Bali Ram (died) through his LRs.

2016-05-16

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. This appeal stands directed against the impugned judgment of the learned District Judge, Hamirpur, Himachal Pradesh, whereby it allowed the appeal preferred before it by the plaintiff who stood aggrieved by the judgment and decree of the learned trial Court whereunder the latter dismissed his suit. 2. The facts necessary for rendering a decision on the instant appeal are that plaintiff had claimed a decree for permanent prohibitory injunction restraining the defendants from raising any construction or changing the nature of the land comprised in Khata No. 286 min, Khatoni No. 428 min, khasra No. 668, as described in jamabandi for the year 1992-93 situated in Tika Chowki Kankari, Mouza Mehlta, Tehsil and District Hamirpur or for taking forcible possession of the suit land or any part thereof and in case the defendants succeed in raising any construction over the suit land or any part thereof during the pendency of the suit in that event a decree for possession by way of demolition was claimed. The said reliefs had been claimed by the plaintiff on the grounds that the plaintiff is a co-owner in joint possession of the suit land whereas the defendants are stranger to it. 3. The suit of the plaintiff was resisted by defendants on the ground that the suit is hit by doctrine of lis-pendense, maintainability and non joinder of necessary parties. On merits, the defendants not disputed the ownership of plaintiff over the suit land and pleaded that there is no boundary wall between the suit land and adjoining land comprising of Khasra No. 666 owned and possessed by the defendants and the said wall had been constructed by them as per demarcation given by local commissioner, hence neither the defendants intended to encroach nor encroached upon the suit land and averred that the demarcation dated 15.7.1997 has become final. 4. In the replication filed on behalf of the plaintiff the averments as contained in the plaint were reiterated and those of the written statement contrary to the plaint were refuted. 5. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP. 2. Whether in the alternative the plaintiff is entitled to the decree for possession by way of demolition, as alleged? OPP. 3. 5. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP. 2. Whether in the alternative the plaintiff is entitled to the decree for possession by way of demolition, as alleged? OPP. 3. Whether the suit is hit by doctrine of lispendense? OPD. 4. Whether the suit bad for non-joinder of necessary parties? OPD. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the suit is not properly verified, as alleged? OPD. 7. Relief. 6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff whereas the learned First Appellate Court had allowed the appeal preferred before it by the plaintiff. 7. Now the defendants have instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 1.06.2007, this Court admitted the appeal on the hereinafter extracted substantial questions of law:- 1. Whether the demarcation report Ext.PW-5/A is contrary to the prescribed procedure laid down for demarcation of the land by the Financial Commissioner, Himachal Pradesh, therefore, the same was required to be rejected? 2. Whether the demarcation report Ext.PW-5/A have not been carried out with the aid of Mussavi and since three permanent points were not fixed, nor adjoining area were measured therefore no reliance could be placed upon the report Ext.PW-5/A and Tatima Shajra Ext.PW-5/B? 3. Whether in view of the contents of the demarcation report Ext.PW-5/A whereby the parties are shown to have compromised the dispute, therefore, the suit for injunction and mandatory injunction could not be entered? Substantial questions of law No. 1 to 3 8. 3. Whether in view of the contents of the demarcation report Ext.PW-5/A whereby the parties are shown to have compromised the dispute, therefore, the suit for injunction and mandatory injunction could not be entered? Substantial questions of law No. 1 to 3 8. The learned counsel appearing for the defendants/appellants has rested his entire espousal before this Court for rendering inefficacious the findings borne on Ext.PW-5/A proven by PW-5 with a depiction therein of the defendants/appellants to the extent enumerated therein encroaching upon the land held as owner by the plaintiff/respondent herein, on the anvil of the defendant in his recorded statement appended with the demarcation report displaying his dissatisfaction with the demarcation held by PW-5 besides anchors his submission on (a) in tandem thereof with PW-1 during his cross-examination held by the counsel for the defendants answering in the affirmative the apposite suggestion of his not recording statements of the parties prior to his carrying out the apposite demarcation proceedings is a marked display of PW-5 without recording the consensus ad idem of the contestants qua the fixed points wherefrom he proceeded to hold demarcation of the suit property alongwith the land contiguous to it hence renders the holding of the entire apposite demarcation by PW-5 to be illegal, (b) depiction in his cross-examination communicative of his being unaware qua the apposite Musabi wherefrom he held the apposite demarcation especially when he concedes it to be the relevant document for the holding of a valid demarcation of the suit property alongwith land contiguous to it also stains with an aura of illegality his holding of the apposite demarcation of the suit property, (c) his communicating in his deposition of his not producing at the relevant stage “Zareb” before the contesting parties for facilitating its inspection by them also constituted both the demarcation proceeding besides the demarcation report prepared in sequel thereto to both stand belittled of their respective legal worth, (d) of the recorded statements of the parties at contest depicting interpolations qua the factum of theirs entering a compromise factum whereof stands constituted in the purported interpolated portion of their respective statements spurs an inference of the demarcating officer fabricating the depiction therein qua the aforesaid facet whereupon no sustenance was derivable by the learned first appellate Court to proceed to render a decree of possession by demolition of construction over land comprised in Khasra No. 668/1 shown in Aks Shajra Ext.PW-5/B. 9. The initial contention addressed before this Court for shredding apart the efficacy of Ext.PW-5/A on the facet of PW-5 not prior to his proceeding to hold demarcation of the suit property alongwith land contiguous to it, eliciting under their respective statements recorded by him their consensus ad idem qua the fixed points wherefrom he proceeded to hold the apposite demarcation, rendering hence the demarcation proceedings besides the apposite report prepared in pursuance thereto to stand besmirched, is unacceptable to this Court as given the factum of the presence of the defendants at the time apposite to PW-5 proceeding to hold demarcation of the suit land alongwith land contiguous to it hence even if thereat he omitted to evince their consensus ad idem qua the fixed points ascertained thereat by the demarcating officer whereupon he proceeded to hold the apposite demarcation would not per se render the ascertainment of fixed points by the demarcating officer to vitiate the demarcation proceedings nor would it vitiate the apposite demarcation report prepared in consonance therewith preeminently given upsurgings from the apposite record of the prime factum of the defendant recording his statement thereat whereupon a deduction stands spurred of hence the defendants at the apposite stage recording their presence before the demarcating officer concomitantly wherefrom an ensuing inference stands derived of the latter in their presence ascertaining the fixed points wherefrom he proposed to hold the apposite demarcation inevitably as such disconcurrence by the defendant if any with the aforesaid ascertainment of fixed points by the demarcating officer would yet give leverage to the latter to proceed to hold demarcation unless its stands unearthed by potent evidence adduced on record displaying the factum of the fixed points wherefrom PW-5 proceeded to hold demarcation of the suit property alongwith land contiguous to it standing not determined by him by his referring to the apt musabi. However, when for reasons recorded hereinafter this Court dispels the arguments canvassed by the learned counsel for the defendants of the apposite demarcation report standing vitiated with an infirmity of its standing not proven to be held from the apposite musabi, an apt sequitur thereof is of dehors the non purveying of consent by the defendants to the ascertainment of fixed points by PW-5 wherefrom he proceeded to hold the demarcation not leading to a conclusion of the ascertainment of fixed points by PW-5 standing bereft of any reference by him to the apt musabi contrarily it has to be held of PW-5 by making a reference to the apt musabi his fixing besides determining recognizable points wherefrom he held the apposite demarcation of the suit property alongwith the land contiguous to it. In aftermath it has to be held that when he ascertained besides determined the relevant recognizeable fixed points by his making an allusion to the apposite musabi the apposite demarcation proceedings held by him stand unvitiated with any stain or an aura of illegality. 10. The contention addressed before this Court by the learned counsel for the defendants appellants of PW-5 in his cross-examination echoing of his not depicting in his apposite report of his at the apposite stage producing before the contesting parties the zareb used by him to hold demarcation of the suit property alongwith the land contiguous to it too rendered his measurement to stand flawed is inconsequential as the aforesaid apt echoing by PW-5 in his cross-examination is rather rudderless to foment an inference of the demarcating officer delinking one of the links in the zareb used by him to hold demarcation unless a concert stood assayed by the counsel for the defendant by eliciting its production before the learned trial Court, for facilitating its collation with Aksh Tatima Ext. PW-5/B besides for facilitating an inference of on their intra se collation both suffering incompatibility. For want of the aforesaid endeavour by the defendants would not constrain any conclusion from this Court of the demarcating officer delinking from the apposite zareb one of its links hence his holding a flawed demarcation whereupon no reliance is to be imputed to his report prepared in consonance to its user by him in the apposite proceedings. 11. For want of the aforesaid endeavour by the defendants would not constrain any conclusion from this Court of the demarcating officer delinking from the apposite zareb one of its links hence his holding a flawed demarcation whereupon no reliance is to be imputed to his report prepared in consonance to its user by him in the apposite proceedings. 11. The sinew of the submission of the learned counsel for the defendants reflective of interpolations occurring in Ext.PW-5/A qua the factum of the defendants entering a compromise in the manner as elucidated therein overriding besides effacing the efficacy of Ext.PW-5/A especially when it stands founded upon the purported interpolation occurring in the statement of the defendant, appears to be a merely invented and contrived endeavour on the part of the defendants to belie Ext.PW-5/A especially when PW-4 who produced the demarcation file before the learned trial Court was not at the apposite stage cross-examined by the counsel for the defendants qua PW-5 forging by interpolation the apposite facet therein of the defendant displaying in his statement qua his recording a compromise qua the suit land with the plaintiff respondent. Omission on the part of the learned counsel for the defendants to unearth by subjecting PW-4 to an apposite cross-examination an elicitation devolving upon the aforesaid factum rather contrarily constrains an inference of the defendants acquiescing to the purported interpolated portion of his statement incorporating therein the factum of his recording a compromise with the plaintiff respondent qua the facet depicted therein standing recorded therein in his presence besides at his instance by PW-5 besides of his now standing estopped to contest its legality on the facet aforesaid. 12. Even otherwise the aforesaid submission suffers grave impairment in the face of the statement of the defendant comprised in Ext.PW-5/D standing signatured by him. 12. Even otherwise the aforesaid submission suffers grave impairment in the face of the statement of the defendant comprised in Ext.PW-5/D standing signatured by him. Even if Partap Chand disowns his signatures occurring on Ext.PW-5/D. However, any denial qua the facet aforesaid would be un-worthwhile in the absence of the defendant in sequel to his denying his signatures occurring on Ext.PW-5/D imploring the learned trial Court or the first appellate court to for fastening vigour to his denial to send his signatures borne on Ext.PW-5/D for their comparison by the expert concerned with his standard writings rather constrains an inference of the denial by defendant Partap Chand qua the occurrence of his signatures at Ext.PW-5/D being a mere bald denial whereupon no truth can stand fastened. 13. Moreover, also the counsel for the defendants as displayed by an order rendered on 27.3.2000 by the learned trial Court on an application under Order 13 Rules 1 and 2 CPC preferred before it by the plaintiff respondent wherein a prayer stands recorded for permission to the applicant for producing the demarcation report had thereat portrayed his no objection to the application being allowed which hence prodded the learned trial Court to order for its being allowed, fillips an inference from this Court of especially when the apposite demarcation report stands accompanied by the apposite statements, his abstaining to project any remonstrance before the learned trial Court against both being permitted to be tendered into evidence on the score of theirs standing accompanied by a purportedly interpolated statement of the defendant besides the false signature of the defendant occurring thereon also now estops the counsel for the defendants to contend of (a) Ext.Pw-5/A holding no evidentiary value it constituting an attested copy of the original rendering it hence to be inadmissible for want of its standing proved from its original (b) of the statement of the defendant accompanying Ext.PW-5/A on disclosures whereof the apposite conclusions stood formed in Ext.PW-5/A by the demarcating officer being un-interpolated besides carrying the signature of the defendant. 14. 14. The learned counsel for the defendants contends with PW-5 deposing of his not being aware qua the musabi wherefrom he held demarcation of the suit land alongwith land contiguous to it cannot be ascribed as argued by the counsel for the defendants any import his not at the apposite stage holding any musabi nor hence the ascertaining of fixed points by the demarcating officer can stand flawed as unawareness of PW-5 qua the musabi or his ascertaining fixed points therefrom wherefrom he held demarcation is not construable to be an expression of his not holding any musabi nor also when PW-5 deposes his not depicting in his report of the musabi wherefrom he held the apposite demarcation being also not readable for garnering an inference his holding the apposite proceedings without the aid of any musabi unless PW-4 who produced the apposite demarcation file before the learned trial Court was cross-examined by the learned counsel for the defendants qua the fact of the demarcation file not containing any musabi, hence vitiating the demarcation proceedings whereas when there occurs want of any endeavour on the part of the counsel for the defendants to by eliciting the apt musabi from the records concerned whereupon on its standing collated with Ext.PW-5/A an inference of their intra se incompatibility or incongruity would stand engendered. In sequel, when hence only on the aforesaid endeavour standing assayed by the counsel for the defendants would have manifested the prime factum of its standing not alluded to by the demarcating officer while his ascertaining recognizable points wherefrom he held the apposite demarcation, contrarily it has to be held that the omission aforesaid estops the counsel for the defendants to contend of at the stage apposite to the demarcating officer holding the apposite demarcation his not holding the relevant musabi also the learned counsel for the defendants is estopped to contend of the ascertainment of fixed points by the demarcating officer were on his not making any allusion to the relevant musabi. 10. The result of the above discussion is that the appeal preferred by the defendants/appellants is dismissed and the substantial questions of law are answered in favour of the plaintiff. The judgment and decree rendered by the learned first Appellate Court is maintained and affirmed and the judgment and decree of the learned trial Court is set-aside. Decree sheet be prepared accordingly. The judgment and decree rendered by the learned first Appellate Court is maintained and affirmed and the judgment and decree of the learned trial Court is set-aside. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All pending applications also stand disposed of accordingly. Records be sent back forthwith.