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2017 DIGILAW 1200 (HP)

Budhu v. Lal Man

2017-10-30

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal has been maintained by the appellant/plaintiff (hereinafter referred to as “the plaintiff”), laying challenge to the judgment and decree, dated 02.07.2005, passed by the learned District Judge, Mandi, District Mandi, H.P., in Civil Appeal No. 116 of 2003, whereby the appeal filed by the respondents/defendants (hereinafter referred to as “the defendants”) against the judgment and decree, dated 31.10.2003, passed by the learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi, H.P., in Civil Suit No. 33 of 2002, decreeing the suit filed by the plaintiff, was allowed. 2. The key facts of the case can tersely be summarized as under: The plaintiff by maintaining a suit for permanent prohibitory and mandatory injunction averred that he is exclusive owner-in-possession of the land comprised in Khewat Khatauni No. 122 min/146, Khasra No. 1384, measuring 0-1-8 bighas, situated in Mauja Chachiot/54, Tehsil Chachiot, District Mandi, H.P. (hereinafter referred to as “the suit land”). As per the revenue record, there was an entry qua existence of a gaimumkin house on the suit land, but the same had fallen and the suit land is in ownership and possession of the plaintiff. The plaintiff has further averred that the defendants/respondents (hereinafter referred to “the defendants”) without having any right, title and interest forcible encroached some portion of the suit land and during the pendency of the suit they succeeded in raising the construction of a single room over khasra No. 1384/1, measuring 0-0-16 bighas. As per the plaintiff, the construction, so raised, and possession of the defendants over the above land is wholly wrong, illegal and unauthorized, as they have no right, title and interest over the suit land, thus the plaintiff sought that his possession be restored by demolition of the unauthorized construction of a room and the possession of the land be also restored to the plaintiff. 3. The defendants, by way of filing written statement, contested and resisted the suit of the plaintiff. They raised preliminary objections, viz., maintainability, locus standi, cause of action and valuation. On merits, the defendants contended that as per the revenue record their residential house had been existing on the suit land, thus the allegations of the plaintiff are baseless and vague. The existence of the residential house of the defendants belies the plea of the plaintiff that the defendants are interfering over the suit land. On merits, the defendants contended that as per the revenue record their residential house had been existing on the suit land, thus the allegations of the plaintiff are baseless and vague. The existence of the residential house of the defendants belies the plea of the plaintiff that the defendants are interfering over the suit land. As per the defendants they carried out renovation of their old house, which was existing over abadi deh land, bearing khasra No. 1385, which is adjoining to the suit land and no construction had been raised on the suit land. The defendants further averred that only on the basis of apprehension the plaintiff filed the suit. 4. The learned Trial Court on 03.08.2002 framed the following issues for determination and adjudication: “1. Whether the plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for? OPP 2. Whether the plaintiff is entitled for relief of mandatory injunction? OPP 3. Whether the plaintiff has no locusstandi to file the present suit? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the suit of the plaintiff is not maintainable in the present form as alleged? OPD 6. Whether the suit of the plaintiff is bad for the purpose of valuation of Court fee and jurisdiction, as alleged? OPD 7. Relief.” 5. After deciding issues No. 1 and 2 in favour of the plaintiff, issues No. 3 to 5 against the defendants and issue No. 6 in favour of the defendants, the suit of the plaintiff was decreed. Subsequently, the defendants preferred an appeal before the learned Lower Appellate Court, which was allowed, vide impugned judgment dated 02.07.2005, hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law: “1. Whether the learned First Appellate Court has committed grave and manifest error by setting aside the judgment and decree of Ld. Trial Court ignoring the spot map and testimony of PW-4, which has resulted in mis-carriage and failure of justice to the appellant? 2. Whether the judgment and decree of Ld. First Appellate Court are not justified under law by not appointing Local Commissioner or remanding the case back for appointment of Local Commissioner in order to ascertain the encroachment made by the respondents, which has materially prejudiced the case of the appellant as a whole? 3. 2. Whether the judgment and decree of Ld. First Appellate Court are not justified under law by not appointing Local Commissioner or remanding the case back for appointment of Local Commissioner in order to ascertain the encroachment made by the respondents, which has materially prejudiced the case of the appellant as a whole? 3. Whether the judgment and decree of Ld. First Appellate Court is perverse to the fact that the plaintiff can file a fresh suit for demolition of encroachment, if any, made by the defendants, which has materially prejudiced the case of the appellant as a whole?” 6. I have heard the learned Counsel for the appellants and the learned Senior Counsel for the respondents. 7. The learned Counsel for the appellant has argued that the judgment of the learned Lower Appellate court is against law and fact and has been passed only on surmises and conjectures. He has further argued that the learned Lower Appellate Court has mis-interpreted, mis-appreciated and mis-construed the oral as well as documentary evidence, especially the spot map and statement of PW-4, Shri Amar Singh. He has argued that the appeal be allowed and the judgment of the learned Lower Appellate Court be set aside and that of the learned Trial Court be restored. Conversely, the learned Senior Counsel for the respondents has argued that the learned Lower Appellate Court has not committed any error and rightly appreciated the material on record. He has further argued that the judgment of the learned Lower Appellate Court is the result of proper appreciation of evidence to its true and correct perspective. He has prayed that the appeal be dismissed. 8. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 9. At the very outset, it is seen that the defendant was son of the brother of maternal grand father of the plaintiff and he is now owner-in-possession alongwith the plaintiff, as the maternal grand father of the plaintiff was having no issue and it is only the plaintiff who inherited him. Admittedly, the plaintiff is owner of land comprised in Khasra No. 1384, measuring 0-1-8 bighas and the defendants, in their written statement, did not specifically deny this fact. Jamabandi for the year 1999-2000, Ex. PA, also demonstrates this fact. Admittedly, the plaintiff is owner of land comprised in Khasra No. 1384, measuring 0-1-8 bighas and the defendants, in their written statement, did not specifically deny this fact. Jamabandi for the year 1999-2000, Ex. PA, also demonstrates this fact. Precisely, the defendants’ stand is that they have not raised any construction of new house or room and their construction is on adjoining Khasra No. 1385. The defendants have relied upon agreement, Ex. D-1, to show that the dispute was amicably settled on 13.03.1984 inter se the parties, whereby the land underneath the cowshed of defendant, Shri Lal Man etc. was left and in exchange adjoining house was given, but examination of this document nowhere reveals the Khasra No., which was given by the plaintiff to the defendant and also there is no mention of area, which was exchanged inter se the parties. It is indeed difficult to ascertain whether agreement, Ex. D-1, is qua the suit land or to some other land. Thus, the agreement, Ex. D-1, cannot be connected to the suit land. 10. The plaintiff has appeared in the witness-box as PW-1 and he has deposed that the defendants have encroached upon the suit land. The plaintiff has stated that he got the land demarcated, but the order of the Tehsildar has not been produced on record. As per the plaintiff, agreement, Ex. D-1, was signed by him, but he has not entered any such agreement. He has also admitted that his house and the house of the defendants are single room houses and he has a cow-shed adjoining the same. PW-2, Shri Om Chand, Patwari, has deposed that he demarcated the suit land and prepared tatima, Mark ‘X’. Similar is the statement of PW-3, Shri Sanjay Vardhan. PW-4, Shri Amar Singh, Kanungo, has deposed that on 04.07.2002 he, alongwith Patwari, visited the spot and prepared tatima, Mark ‘X’ and found that a room has been raised by the defendant over the suit land. He has further deposed that he gave note Mark ‘X’ on Ex. PW-4/A. This witness admitted in his cross-examination that said note was prepared on 10.07.2002. Similar is the version of PW-5, Shri Khem Chand, Halqua Patwari. 11. He has further deposed that he gave note Mark ‘X’ on Ex. PW-4/A. This witness admitted in his cross-examination that said note was prepared on 10.07.2002. Similar is the version of PW-5, Shri Khem Chand, Halqua Patwari. 11. Apparently, the above discussion of the evidence, which has come on record, shows that as per the plaintiff, the defendants, after encroaching the suit land, have raised construction over 0-0-16 bighas, which approximately comes to 18 square meters. This has been ascertained on the basis of demarcation report, Mark ‘X’, where the Kanungo has depicted encroachment, but there is nothing on record that how and on whose orders PW-4, Shri Amar Singh, Kanungo, has conducted the demarcation and in whose presence, meaning thereby that the encroachment was not proved on record at all. The testimonies of PW-4 and PW-5 also make it clear that no demarcation report was prepared on the spot or lateron. Neither the Kanungo has given any demarcation report in presence of the defendants nor there is anything on record, which is suggestive of the fact that defendants were present on the spot when the demarcation was conduct by PW-4, Shri Amar Singh, Kanungo, on 04.07.2002. Now, in the absence of any report by Kanungo or order of Tehsildar qua conferment of said report, it cannot be said that the defendants have encroached upon the suit land by covering 0-016 bighas of Khasra No. 1384/1. The statements of PW-4, Shri Amar Singh, Kanungo and PW-5, Shri Khem Chand, Patwari, which show that the newly constructed room is over Khasra No. 1384/1 and is 0-0-16 bighas, are baseless and cannot be relied upon. At the same point of time, there is nothing that the plaintiff ever moved any application before the Court for appointment of Local Commissioner to ascertain the encroachment, as he alleged. Further, there is nothing on record to show that the Kanungo was competent or he was appointed under some order of the Tehsildar, he followed any procedure and he summoned the parties before preparing report, Mark ‘X’. On the other hand, defendant, Shri Lal Man, while appearing as DW-1 has denied the case of the plaintiff. He has deposed that he did not raise any construction on the suit land and he only replaced roof of the old house. On the other hand, defendant, Shri Lal Man, while appearing as DW-1 has denied the case of the plaintiff. He has deposed that he did not raise any construction on the suit land and he only replaced roof of the old house. Similar are the statements of DW-2, Shri Rajinder Pal, DW- 3, Shri Shankar Dass and DW-4 Shri Maya Ram. In nitty gritty, the dispute is a boundary dispute and oral and documentary evidence do not establish encroachment by the defendants. Certainly, the relief of injunction cannot be granted on surmises and conjectures and only because the plaintiff has proved his title over the suit landhe cannot be held entitled for the relief of equitable injunction. 12. In these circumstances, it is clear that the plaintiff has failed to prove his case. The learned counsel for the appellant has argued that this Court may appoint Local Commissioner so that the encroachment could be ascertained, but I do not find any merit in the submission of the learned counsel for the plaintiff, as when there was opportunity with the plaintiff, no application was moved and now the court cannot be used to create evidence. It is the plaintiff, who has to stand on his own legs. Further, in view of the facts discussed hereinabove, this Court does not find any necessity to appoint Local Commissioner, when there is nothing on record to even suppose that the defendants have encroached upon the land of the plaintiff. 13. From the above, it is clear that the judgment passed by the learned Lower Appellate Court is after appreciating the evidence to its true and correct perspective and the documents have also been properly appreciated and no illegality has been committed by the learned Lower Appellate Court. There is no error, so the substantial question of law No. 1 is answered accordingly. Substantial question of law No. 2 is answered holding that as the plaintiff has failed to bring anything on record that there is any encroachment by the defendants, the Court is not required to appoint Local Commissioner on its own just because the plaintiff alleged something. In the present case, the evidence has been properly appreciated by the learned Lower Appellate Court, as there was no necessity to appoint Local Commissioner. 14. In the present case, the evidence has been properly appreciated by the learned Lower Appellate Court, as there was no necessity to appoint Local Commissioner. 14. As far as the judgment and decree of the learned Lower Appellate Court are concerned, the learned Lower Appellate Court has appreciated each and every aspect of the matter and the evidence on record to its true and correct perspective. There is nothing on record to show that the learned Lower Appellate Court has not considered any material evidence to its true perspective, therefore, the judgment and decree have been passed by the learned Lower Appellate Court in accordance with law. Substantial question of law No. 3 is answered accordingly. 15. In view of what has been discussed hereinabove, the appeal, which sans merits, deserves dismissal and is dismissed accordingly. However, keeping in view the relationship of the parties, they are left to bear their own costs. The appeal, so also pending applications, if any, stands disposed of.