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2017 DIGILAW 1292 (HP)

Pritam Chand v. Satish Mehta

2017-11-23

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The plaintiff instituted a suit against the defendant claiming therein, a, decree for mandatory injunction as well as for permanent prohibitory injunction. The plaintiff's suit stood dismissed by the learned trial Court. In an appeal carried therefrom by the aggrieved plaintiff before the learned First Appellate Court, the latter Court allowed the plaintiff's appeal, whereupon, it rendered a decree of mandatory injunction, directing, the defendant, to, within two months remove the stair case constructed by him upon the suit land. Further, a decree for permanent prohibitory injunction was rendered, by the learned First Appellate Court, for restraining the defendant from interfering with the user of the path by the plaintiff and his family members. The defendant standing aggrieved by the impugned rendition recorded by the learned First Appellate Court, concerts, to assail it by preferring an appeal therefrom before this Court. 2. Briefly stated the facts of the case are that there is “Sharyam” path in the land comprised in Khata-Khatauni No.99/144, Khasra No.221, measuring 0-02-40 hectares in Chak Alaong as per Misal Haquiat 1997-98. It is averred that through the said path the plaintiff along with his family members, go to bazar, fields and the main road along with other villagers and it has been in the use of the plaintiff and other persons for the last more than 70 years. The user of the plaintiff is continuous without any interruption and as of right. It is averred that in the month of July, 2004, the defendant interfered with the right of the plaintiff in the disputed path by erecting a stair on it. The defendant further started raising a structure on the disputed path. The spot was shown to Patwari Halqua and Vice President, Panchayat and thereafter the plaintiff obtained the tatima of the spot showing the encroachment and interference by the defendant in the disputed path. 3. The defendant contested the suit and filed written statement. It is pleaded that the construction is not raised on the disputed path but it is raised on abdideh land comprised in khasra No.214. He denied of having raised any construction upon the disputed path. Visit to the disputed path by the Patwari Halqua and Vice President of the Panchayat is also denied. 4. It is pleaded that the construction is not raised on the disputed path but it is raised on abdideh land comprised in khasra No.214. He denied of having raised any construction upon the disputed path. Visit to the disputed path by the Patwari Halqua and Vice President of the Panchayat is also denied. 4. The plaintiff/respondent herein filed replication to the written statement of the defendant/appellant, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled for the relief of mandatory injunction? OPP. 2. Whether the plaintiff is entitled for relief of permanent injunction? OPP. 3. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the plaintiff/respondent before the learned First Appellate Court, the first Appellate Court allowed the appeal and reversed the findings recorded by the learned trial Court. 7. Now the defendant/appellant herein has instituted the instant Regular Second Appeal before this Court assailing the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 03.12.2008 this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether in the absence of direct and specific evidence regarding construction of stairs on suit land/path, the ld. First Appellate Court is justified in decreeing the suit of the plaintiff? Substantial questions of Law No.1: 8. Suit khasra number 221 is reflected in Ex.PW2/A, exhibit whereof is a copy of missal haquiat appertaining thereto, to be a “Sharyam Rasta”. The plaintiff, for proving the factum of the defendant/appellant, raising a stair case thereon, AND his concomitantly obstructing the defendant from enjoying his easementary rights of trudging upon it, for his accessing his homestead, relied upon Ex.PW1/C. The learned Appellate Court imputed sanctity thereto. Imputation of sanctity vis-a-vis Ex.PW1/C, ensued, from the defendant/appellant recording his statement before PW-1, with echoings therein, of his acquiescing to his raising construction upon suit khasra number 221. Imputation of sanctity vis-a-vis Ex.PW1/C, ensued, from the defendant/appellant recording his statement before PW-1, with echoings therein, of his acquiescing to his raising construction upon suit khasra number 221. Any imputation of sanctity vis-a-vis Ex.PW1/C, by the learned First Appellate Court, merely, upon the Patwari, recording a statement of the defendant/appellant, embodying, therein his aforestated acquiescence, cannot per se impute any grave solemnity vis-a-vis Ex.PW1/C nor it would estop the defendant/appellant, from, contesting the tenacity, of the articulations borne in Ex.PW1/C, unless, (a) a wholesome reading of the testification rendered by PW-1, underscores, of his unveiling therein, of his holding a valid demarcation of suit khasra No.221; (b) of the plaintiff pressing for an adjudication/pronouncement, of, an order upon his application filed before the learned trial Court, under the provisions of Order 26, Rule 9 of the CPC, (c) want of endeavours whereof would per se render a converse conclusion, of even the plaintiff tacitly undermining the vigour of Ex.PW1/C. 9. For determining, qua apposite compliances being metedby PW1, with the apt provisions (i) for thereupon rendering a firm concomitant conclusion, of, PW-1 holding a valid demarcation of the suit khasra number, recorded in the revenue record as “Shareyam Rasta”, an allusion to clause 10.3 of Chapter 10 of the Himachal Pradesh Land Records Manual is imperative. Clause 10.3 thereof reads as under: “10.3 Papers with application of Demarcation:- An interested person shall submit an application for demarcation in duplicate. The following documents shall be filed with the original application. 1. A copy of latest Jamabandi. 2. A copy of previous settlement map. 3. A copy of map prepared during consolidation, if consolidation operations have been conducted in the estate. 4. A copy of tatima Shajra if the demarcation of sub-divided khasra number is involved. 5. Process fee as prescribed under the rules.” A perusal whereof underscores, the factum of the Revenue Officer concerned while proceeding, to hold demarcation, his being enjoined to thereat possess, a copy of the previous settlement map. For gauging whether the aforesaid trite cannon, stood proven, by the Patwari, who testified as PW-1, a, wholesome reading of his testification is imperative. An incisive perusal thereof, especially, the one embodied in his cross-examination, underscores, of his making a communication therein, of his holding the relevant demarcation, with his possessing the “latha” and “Khatauni” of the relevant suit khasra number. An incisive perusal thereof, especially, the one embodied in his cross-examination, underscores, of his making a communication therein, of his holding the relevant demarcation, with his possessing the “latha” and “Khatauni” of the relevant suit khasra number. Obviously, hence, with his, not, naturally possessing at the relevant time, the relevant musabi, whereas, his possessing it thereat, was, peremptory, given a mandate qua it, occurring in the afore extracted provisions borne in Clause 10.3 of the Himachal Pradesh Land Records Manual, (i) thereupon, Ex.PW1/C, warrants its being discarded nor it carries any probative legal vigour, for nailing a conclusion of the defendant, by purportedly raising a stair case, upon suit khasra number, his hence, preventing the plaintiff to trudge upon suit khasra No.221, for hence his accessing his homestead. Any conclusion recorded by the learned First Appellate Court, whereby, it imputed grave solemnity thereto, is obviously unwarranted, rather is un-amenable for interference. As aforestated, the mere factum of the defendant/appellant recording a statement before the Patwari, who prepared Ex.PW1/C, with occurrence of an echoing therein, personificatory of his acquiescence, of, his raising a stair case upon khasra No.221, would not estop him, to assail the tenacity of Ex.PW1/C, unless, Ex.PW1/C stood proven, to be validly prepared by its author. However, with this Court concluding, of, Ex.PW1/C standing prepared by its author, in gross detraction of the apposite canons, (ii) thereupon, the defendant/appellant Pritam Chand's statement, recorded by the Patwari also his acquiescing therein qua his raising constructions upon khasra number 221, would yet not foist any probative tenacity vis-a-vis EXPW1/C. Contrarily, with the plaintiff, despite, his moving an application, cast under the provisions of Order 26, Rule 9 of the CPC, yet his not pressing for an adjudication being rendered thereon, rather fosters an inference of his tacitly not accepting the trite factum of Ex.PW1/C, holding any evidentiary value, for, resting the contentious issue of defendant/appellant Pritam Singh by purportedly raising a stair case upon suit khasra No.221, his obstructing any user by him, of, the recorded Shareyam Rasta, for his accessing his homestead. 10. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are not based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has excluded germane and apposite material from consideration. 10. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are not based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the defendant/appellant and against the plaintiff/respondent. 11. In view of above discussion, the present Regular Second Appeal is allowed. In sequel, the judgment and decree rendered by the learned first Appellate Court is set aside and the suit of the plaintiff is dismissed. Consequently, the judgment and decree rendered by the learned trial Court in C.S. No. 154/1 of 2004 is maintained and affirmed. All pending applications also stand disposed of. No order as to costs.