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2017 DIGILAW 1011 (HP)

Charan Dass v. Het Ram

2017-08-31

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. - By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned District Judge, Mandi, in Civil Appeal No. 107 of 2007 dated 09.06.2008, vide which learned Appellate Court while dismissing the appeal filed by the present appellant upheld the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Court No. 1 Mandi, in Civil Suit No. 60-I/2004 decided on 16.03.2007, whereby learned trial Court had dismissed the suit filed by the predecessor-in-interest of the present appellants for permanent prohibitory injunction and in the alternative for vacant possession. 2. This appeal was admitted on 28.08.2008 on the following substantial questions of law:- (a) Whether the learned courts below have misread and mis-appreciated the pleadings as also the evidence, both oral and documentary, especially the statements of PWs 1 to 5, Ex. PA, Ex. PB, Ex. PW-1/A, Ex. D-1, Ex. DW1/A and on account of such misreading and mis-appreciation of evidence the findings as such are vitiated? (b) Whether in a boundary dispute, it was incumbent upon the court to have appointed a court commission suo motu or allowed the application under Order 26 Rule 9 CPC for appointment of commissioner for purpose of elucidation and enabling the court to do complete judgment and whether failure to do so has resulted in the impugned judgment being bad in law and deserves to be set aside? (c) Whether previous demarcation report not relied upon by the first appellate court, which was relied upon by the trial court and on basis of corroboration suit was decreed, it was incumbent upon the learned first appellate court to have appointed a court commission suo motu for the purpose of correct demarcation and whether such failure has resulted in the judgment being vitiated, in view of the judgment of this Hon''ble Court in the case of Beli Ram vs. Mela Ram, 2003(1) SLJ 2004? 3. Brief facts necessary for adjudication of the present appeal are that the predecessor-in-interest of the present appellants Charan Dass, hereinafter referred to as the plaintiff filed a suit for permanent prohibitory injunction and in the alternative for vacant possession against the respondents/ defendants, hereinafter referred to as the defendants, on the pleadings that land comprised in Khewat Khatauni No. 225 min/262 min, Khasra No. 888 measuring 0-5-2 Bigha, situated in Mauja Kehar/ 290, Ill. Rajgarh-Balh, Tehsil Sadar, District Mandi, H.P., was owned and possessed by him and that he was having his residential house on a portion of the same, whereas the remaining suit land was being used by the plaintiff as courtyard and kitchen garden. As per the plaintiff, defendants without any right, title or interest over the suit land, had started causing interference over the same with a motive to raise construction thereupon w.e.f. 04.11.2004. It was further mentioned by the plaintiff that as he was serving in District Kullu, he was unaware about the illegal object of the defendants. He was intimated by his family members telephonically regarding illegal interference and encroachment over the suit land by the defendants and thereafter when the plaintiff came on leave on 12.11.2004, he found that the defendants had encroached upon his land measuring 0-110 Bigha by carrying out illegal construction over Khasra No. 888/1. Despite his request, defendants did not restraint themselves from raising illegal construction on his land and in these circumstances, the suit was filed by the plaintiff praying for the following reliefs:- "It is, therefore, respectfully prayed that in view of the submissions made hereinabove, the suit of the plaintiff may kindly be decreed and a decree for permanent prohibitory injunction restraining the defendants not to cause any interference in the suit land and also not to raise any construction over the suit land in any manner be passed in favour of plaintiff and against the defendants. Further, a decree for vacant possession with regard to the land measuring 0-1-10 bighas shown as khasra No. 888/1 in spot map, may also be passed in favour of the plaintiff and against the defendants. And/or any other relief to which the plaintiff may be found entitled under the facts and circumstances of the case, may also be granted in favour of plaintiff and against the defendants alongwith cost of the suit and justice be done." 4. By way of their written statement, defendants denied the claim of the plaintiff. As per the defendants, they were neither causing interference with the possession of the plaintiff over the suit land nor they had caused any construction over the same. By way of their written statement, defendants denied the claim of the plaintiff. As per the defendants, they were neither causing interference with the possession of the plaintiff over the suit land nor they had caused any construction over the same. The case of the defendants was that son of defendant No.1 had undertaken construction of his separate house over the land comprised in Khasra No. 896 measuring 0-1-16 Bigha which was exclusively owned and possessed by defendant No. 1 to the extent of half share and defendants had not indulged in any construction operations. Illegal construction as alleged by the plaintiff over the suit land was thus denied by the defendants. 5. On the basis of the pleadings of the parties, the following issues were framed by learned trial Court:- 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction and in the alternative for vacant possession of the suit land as claimed for? ... OPP 2. Whether the suit of the plaintiff is false, frivolous and vexatious and is not legally maintainable? ... OPD 3. Whether the plaintiff has no locus standi to file the present suit, as alleged? ... OPD 4. Whether the suit is bad for mi-joinder and non-joinder of necessary parties, as alleged? ... OPD 5. Whether the plaintiff has no enforceable cause of action to file the suit, as claimed for? ... OPD 6. Relief. 6. The issues so framed by learned trial Court were answered as under:- Issue No. 1: No. Issue No. 2: No. Issue No. 3: No. Issue No. 4: No. Issue No. 5: Yes. Relief: The suit of the plaintiff is dismissed for operative part of the judgment. 7. Learned trial Court thus vide its judgment and decree dated 16.03.2007 dismissed the suit of the plaintiff. While dismissing the suit, it was held by learned trial Court that the plaintiff had failed to prove the alleged encroachment made by the defendants over a part of the suit land measuring 0-1-10 Bigha depicted as Khasra No. 888/1 in Tatima Ext. PW4/A. It was further held by learned trial Court that as the plaintiff had failed to prove encroachment over part of the suit land, it could not be accepted that the defendants used to interfere over the remaining part of the suit land as was stated in the Court by PW-1 and PW-3. PW4/A. It was further held by learned trial Court that as the plaintiff had failed to prove encroachment over part of the suit land, it could not be accepted that the defendants used to interfere over the remaining part of the suit land as was stated in the Court by PW-1 and PW-3. Learned trial Court also held that Tatima Ext. PW4/A was not supported by any demarcation report nor PW-4 i.e. Kishori Lal had testified to the effect that he had prepared Tatima Ext. PW4/A after carrying out the demarcation of the land of the plaintiff as well as defendants. Learned trial Court also took note of the fact that PW-5 Ved Parkash, Kanungo, had admitted that he had not carried out any demarcation on the spot. Learned trial Court also held that a perusal of jamabandi Ext.PA which pertained to the suit land demonstrated that the suit land was recorded as "Gair Mumkin Makan" and no part of the same was recorded as vacant land. It also took note of the fact that PW-4 in his cross-examination had admitted that he had issued Tatima Ext. DI pertaining to the construction being raised by the defendants and his son over Khasra No. 896/1 measuring 0-1-16 Bigha which land was owned by defendant No. 1 alongwith other cosharers. On these basis, learned trial Court dismissed the suit of the plaintiff. 8. In appeal, the judgment and decree so passed by learned trial Court was upheld by learned Appellate Court vide judgment and decree dated 09.06.2008. While dismissing the appeal so filed by the plaintiff, it was held by learned Appellate Court that even the witnesses of the plaintiff had admitted that the construction raised by the defendants was not over the suit land. It was held by learned Appellate Court that no useful purpose would be served by appointing a Local Commissioner as the land of the defendants was on higher side and evidence on record clearly suggested that the construction carried out by the defendants was upon their land and not over the suit land. It was held by learned Appellate Court that no useful purpose would be served by appointing a Local Commissioner as the land of the defendants was on higher side and evidence on record clearly suggested that the construction carried out by the defendants was upon their land and not over the suit land. It was also held by learned Appellate Court that a perusal of the statements of the plaintiff''s witnesses especially the statement of PW-4 Kishori Lal and Kanungo PW-5 clearly demonstrated that no demarcation was done by the Kanungo in the presence of the defendants and no demarcation report was on file so as to prove the factum of encroachment, if any, found over the suit land by PW-5. It was on the basis of these findings learned Appellate Court while concurring with the findings of learned trial Court, dismissed the appeal. 9. I have heard learned counsel for the parties and also gone through the records of the case as well as the judgments and decrees passed by both learned Courts below. 10. I will deal with the three substantial questions of law independently. (a) Whether the learned courts below have misread and mis-appreciated the pleadings as also the evidence, both oral and documentary, especially the statements of PWs 1 to 5, Ex. PA, Ex. PB, Ex. PW-1/A, Ex. D-1, Ex. DW1/A and on account of such misreading and mis-appreciation of evidence the findings as such are vitiated? 11. A perusal of the statements made by the plaintiff''s witnesses as well as a perusal of Ext. PA, Ext. PB, Ext. PW1/A, Ext. D-1 and Ext. DW1/A, demonstrates that there is neither any misreading nor any mis-appreciation of the evidence by learned Courts below. Concurrent findings recorded by both learned Courts below against the plaintiff that the plaintiff had failed to prove any encroachment over the suit land by the defendants are duly borne out from the records of the case. Ext. PW4/A stands prepared by PW-4. A perusal of the statement of PW-4 demonstrates that in his cross-examination he admitted it to be correct that Tatima Ext. D-1 was prepared by him as per which the construction in issue was being raised by the defendants and his son over Khasra No. 896/1 measuring 0-1-16 Bigha. Now, admittedly, this is not the suit land. Suit land is Khasra No. 888/1. D-1 was prepared by him as per which the construction in issue was being raised by the defendants and his son over Khasra No. 896/1 measuring 0-1-16 Bigha. Now, admittedly, this is not the suit land. Suit land is Khasra No. 888/1. PW-5 Kanungo Ved Parkash deposed in the Court that he had not carried out any demarcation of the disputed land. It has also not come in the statement of PW-4 that Tatima Ext. PW4/A was prepared by him in the presence of the parties after demarcating the land of the plaintiff and defendants. In this background, when we peruse the testimonies of PW-1, PW-2 and PW-3, perusal of the same demonstrates that it is not categorically borne from their statements that there was any encroachment over the suit land by the defendants. In fact, Ext. PA which is a copy of jamabandi of the suit land pertaining to the year 1996-97 contains the entry of "Gair Mumkin Makan". Same is true with regard to the contents of Ext. PB which is jamabandi of the suit land as well as Khasra No. 887 pertaining to the year 1996-97. Now, incidentally there is no Ext. PW1/A on the record as it finds mentioned in the substantial questions of law. 12. Be that as it may, in view of above discussion, in my considered view, there is neither any misreading nor any mis-appreciation of either the statements of plaintiff''s witnesses or of Ext. PA and Ext. PB by learned Courts below. Further a perusal of Ext. D-1 as well as Ext. DW1/A also demonstrate that there is no misreading of the said documents by learned Court below. This is for the reason that learned Courts below have not believed Ext. D-1. However, yet they have dismissed the claim of the plaintiff on the ground that the plaintiff has failed to substantiate on record through cogent evidence that the suit land stood encroached upon by the defendants and they had carried out construction over the same. The findings so returned by both learned Courts below are duly borne out from the records of the case and the same are not result of either misreading or mis-appreciation of evidence. The substantial question of law is answered accordingly. The findings so returned by both learned Courts below are duly borne out from the records of the case and the same are not result of either misreading or mis-appreciation of evidence. The substantial question of law is answered accordingly. (b) Whether in a boundary dispute, it was incumbent upon the court to have appointed a court commission suo motu or allowed the application under Order 26 Rule 9 CPC for appointment of commissioner for purpose of elucidation and enabling the court to do complete judgment and whether failure to do so has resulted in the impugned judgment being bad in law and deserves to be set aside? 13. Admittedly, at the time of filing of the suit, no demarcation report was appended with the plaint by the plaintiff in support of his case. The application filed by the plaintiff under Order 26 Rule 9 C.P.C. was dismissed by learned trial Court vide order dated 12.01.2007. While dismissing the said application it was held by learned trial Court that it was not a boundary dispute between the parties but the plaintiff had filed the suit for possession of the land encroached upon by the defendants and it was fairly well settled that local investigation can be ordered in order to elucidate the matter in controversy but not to create evidence in favour of any of the party. Learned trial Court further held that had it been boundary dispute simplicitor, then it would have been a different matter but as the plaintiff had alleged the encroachment over a specific portion of the land then it was for the plaintiff to have had proved the alleged encroachment. The order so passed by learned trial Court on the application so filed under Order 26 Rule 9 C.P.C. attained finality. 14. In my considered view, a perusal of the pleadings of the parties as well as the respective evidence led by both the parties in respect of their case, demonstrates that the dispute in between the parties is not a boundary dispute simplictor, the plaintiff has categorically alternatively prayed for vacant possession of the suit land. Averments made in Para-3 of the plaint were that when the plaintiff came back to the place where the suit land was situated on 12.11.2004, he found that illegal construction had been started by the defendants. Averments made in Para-3 of the plaint were that when the plaintiff came back to the place where the suit land was situated on 12.11.2004, he found that illegal construction had been started by the defendants. Now when there was a specific allegation of encroachment made by the defendants over the suit land, onus was upon the plaintiff to have had proved the same. In the absence of there being any material on record to prove and substantiate that the suit land stood encroached upon by the defendants, such evidence could obviously not have been permitted to be created in the garb of application under Order 26 Rule 9 C.P.C. During the course of arguments, learned counsel for the appellant could not satisfactorily respond as to why no demarcation report was appended with the plaint by the plaintiff in support of his contention. In the facts and circumstances of the present case, it cannot be said that it was incumbent upon the Court to have had appointed Court commission suo motu or allowed the application under Order 26 Rule 9 C.P.C. to do justice between the parties. It is settled principle of law that he who alleges has to prove. After the allegation of encroachment stood made by the plaintiff against the defendants, onus was upon him to prove the said allegation. It was not for the Court to create evidence in favour of the plaintiff to prove the said fact. Therefore, there is no illegality committed by learned Courts below by not allowing the application so filed by the plaintiff under Order 26 Rule 9 for the appointment of the Local Commissioner. The substantial question of law is answered accordingly. (c) Whether previous demarcation report not relied upon by the first appellate court, which was relied upon by the trial court and on basis of corroboration suit was decreed, it was incumbent upon the learned first appellate court to have appointed a court commission suo motu for the purpose of correct demarcation and whether such failure has resulted in the judgment being vitiated, in view of the judgment of this Hon''ble Court in the case of Beli Ram vs. Mela Ram, 2003(1) SLJ 2004 ? 15. There is no demarcation report on record which purportedly was earlier relied upon by learned trial Court but was not relied upon by learned Appellate Court. 15. There is no demarcation report on record which purportedly was earlier relied upon by learned trial Court but was not relied upon by learned Appellate Court. In fact, no demarcation report was filed by the plaintiff before learned trial Court. Only three exhibits were filed by the plaintiff i.e. two jamabandis Ext. PA and Ext. PB and one Tatima Ext. PW4/A. It has come on record that no demarcation was carried out when Tatima Ext. PW4/A was prepared. Therefore, here it is not a case where a demarcation report relied upon by learned trial Court erroneously was not relied upon by learned Appellate Court. The substantial question of law is answered accordingly. 16. In view of above discussion, as there is no infirmity with the judgments and decrees passed by both learned Courts below, therefore, while affirming the same, this appeal is dismissed being devoid of any merit. Miscellaneous application(s) pending, if any, stand disposed of. Interim order, if any, also stands vacated.