Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1341 (HP)

Rup Lal v. Mast Ram

2017-12-05

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal is directed against the concurrently recorded verdicts by both the learned Courts below, upon, the plaintiff's suit for possession of suit land, as delineated in the plaint, whereby, both the latter Courts' proceeded to dismiss the plaintiff's suit. 2. Briefly stated the facts of the case are that the plaintiff is owner of the suit land and the defendants have no rights, title or interest in the suit land and there is a house of the plaintiff over khasra No.576/313, which has been constructed by him about five years back. The plaintiff had left about four feet land for the purpose of passing he water of his house as well as rainy water but the defendants raised construction in the suit land in his absence and they have constructed a danga over the same without the permission and consent of the plaintiff due to which the water has accumulated near the wall and is causing damage to the house of the plaintiff. The plaintiff asked the defendants to remove the danga so constructed by him in the suit land but of no use. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections qua cause of action and estoppel. It has been stated that defendant No.1 purchased land comprising khasra No. 517/313/1, measuring 0-00-44 hectare from Sh. Balak Ram, which is adjoining to the suit land and the defendants have constructed danga in their own land during 1998 in the presence of the plaintiff and his family members. Patwari also called by the Pradhan and the said danga was constructed after demarcation in the year 1998 by the Patwari and Kanungo. Even Sub Divisional Magistrate has also visited the spot and got demarcated the land in which danga was found in the land of the defendants but the plaintiff has filed the present suit to harass the defendants. 4. The plaintiff/appellant herein filed replication to the written statement of the defendants/respondents herein, wherein, he denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court, struck, the following issues inter-se the parties at contest:- 1. Whether the plaintiff is owner of the suit land? OPP. 2. Whether the defendants have encroached upon the suit land? OPP. 3. 5. On the pleadings of the parties, the learned trial Court, struck, the following issues inter-se the parties at contest:- 1. Whether the plaintiff is owner of the suit land? OPP. 2. Whether the defendants have encroached upon the suit land? OPP. 3. Whether the plaintiff is entitled for decree of possession? OPP. 4. Whether the suit is not legally maintainable? OPD. 5. Whether there is no enforceable cause of action? OPD. 6. Whether the plaintiff is estopped to file the suit? OPD. 7. Whether the suit is hit by principle of acquiescence? OPD. 8. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom, by the plaintiff/appellant, before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 7. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal before this Court, wherein, he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on26.03.2007, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether the two Courts below could not have passed the final judgment in the matter without affording an opportunity to the appellant plaintiff to seek demarcation of the boundary of the adjoining properties of the parties or to prove the report of demarcation, if some demarcation had already been carried out and both the parties were party to the demarcation application? Substantial question of Law No.1. 8. The fulcrum, of, the entire controversies engaging the parties at contest, squarely rests, upon, the validity, of, tatima borne in Ex.PW2/A. Ex.PW2/A makes earmarkings, of, (i) upon khasra No.576/313/1, a, danga being erected by the defendants. Carving of the aforesaid apt decreeable khasra number, in Ex.PW2/A, is, from khasra No. 576/313, khasra number whereof, as divulged by the apposite jamabandi, comprised in Ex.P-1 is owned and possessed by the plaintiff. Carving of the aforesaid apt decreeable khasra number, in Ex.PW2/A, is, from khasra No. 576/313, khasra number whereof, as divulged by the apposite jamabandi, comprised in Ex.P-1 is owned and possessed by the plaintiff. With the afore referred specific portion, of, khasra No.576/313 being evidently also owned and possessed by the plaintiff AND its being encroached, upon, by the defendants, by theirs raising a danga thereon, may constitute evidence, of, probative vigour also in respect thereto, an executable decree was renderable. However, both the learned Courts below disimputed probative solemnity vis-a-vis Ex. PW2/A, (ii) solely on the ground of demarcation report, in sequel whereof it stood prepared, being neither tendered into evidence nor it being proved by its author. The validity of the reasons ascribed by both the learned Courts below, for theirs refusing to assign probative vigour, to Ex.PW2/A, is to be fathomed from the testification of PW-3 and DW-1. 9. PW-3 in his testification comprised in his examination-in-chief, make echoings of Ex.PW2/A, being prepared by the Patwari subsequent, to his holding demarcation. The counsel for the defendants held him, to a close scathing cross-examination, wherein affirmative suggestions were purveyed to him, (a) of the Tehsildar concerned being present at the relevant stage, of, his holding demarcation of the contiguous estates of the parties at contest, (b) affirmative suggestion whereof evinced an affirmative response from him. (c) A further affirmative suggestion was put, to, PW-3 by the learned counsel for the defendant, of his also accompanying the SDM concerned, at the time, when, the latter carried demarcation, of, the respective contiguous estates of the parties at contest, suggestions whereof evinced an alike affirmative respondent from PW-3. A communication also occurs in his testification, borne in his cross-examination, of, at the relevant time, of, his conducting demarcation, of, the contiguous estates of the parties at contest of (d) his carrying aks musabi and (e) his placing reliance thereon, for the relevant purpose AND (f) thereafter his holding an accurate demarcation. (g) He also echoes, in his cross-examination, of, his demarcation being affirmed by the Tehsildar concerned, besides he negatives the suggestion put to him, of, his demarcation holding variance, with, the demarcation previously conducted by the SDM concerned. In concurrence with the aforesaid, testification rendered by PW-3, recitals are visibly borne in Ex.PW2/A, of, the latter exhibit, being prepared in consonance with the demarcation held on 7.6.1999 by PW-3. 10. In concurrence with the aforesaid, testification rendered by PW-3, recitals are visibly borne in Ex.PW2/A, of, the latter exhibit, being prepared in consonance with the demarcation held on 7.6.1999 by PW-3. 10. DW-1 in his cross-examination, makes, a disclosure, of, ademarcation being held on 12.06.2000, of, the contiguous estates of the plaintiff and the defendants AND in consonance therewith, he makes a disclosure therein, of a tatima being also prepared. However, the aforesaid purported demarcation held on 12.06.2000, of, the adjoining estates of the parties to the lis, has, not been adduced into evidence. 11. Nowat, bearing in mind the aforesaid relevant testifications rendered by PW-2 and DW-1, does constrain this Court, to conclude, of, in the learned Courts below refusing to ascribe evidentiary worth vis-a-vis Ex.PW2/A, (I) merely, on the ground of the demarcation report being neither tendered nor proven by PW-3, its author, thereupon, both being hence de-facilitated to render a decree, for possession of the specific portion of khasra No.576/313, whereto a separate khasra No. 576/313/1 is ascribed, (ii) being hence for the hereinafter assigned reasons, grossly fallacious. (a) With Ex.PW2/A holding clear graphical recitals, of, its preparation being in consonance with the demarcation held on 7.6.1999 by PW-3; (b) PW-3 while stepping into the witness box, his corroborating the aforesaid note occurring in EX.PW2/A; (c) the counsel for the defendant while subjecting PW-3, to cross-examination, putting affirmative suggestions vis-a-vis him, of the demarcation conducted by him being affirmed by Tehsildar AND; (d) of, the Tehsildar accompany PW-3 at the stage of the latter holding demarcation, of the contiguous estates of the contesting parties; (e) of demarcation being held by PW-3, in consonance with his adhering, to, the apt recitals borne in the aks musabi, which he carried with him, at, the apposite stage of his holding demarcation of the contiguous estates, of, the parties at contest; (f) PW-3 negativing, a suggestion put to him, of, the demarcation conducted, by him holding variance with the prior thereto demarcation held by the SDM concerned. (g) Furthermore, the effect(s) of the defendants hence obviously acquiescing, to the veracity(ies), of, the aforestated apposite affirmative responses meted by PW- 3 vis-a-vis in tandem therewith apposite affirmative suggestions, ARE, as a corollary thereof, (h) of the defendants obviously hence also acquiescing, to, the validity of the demarcation conducted by PW-3, besides given theirs not eliciting the demarcation report, prepared in sequel to the demarcation, conducted by the SDM concerned, for theirs hence making a concert, to, bely the testification rendered by PW-3, in his cross-examination, of, the demarcation held by him, in consonance whereof Ex.PW2/A stood prepared, rather holding variance therewith. (i) Contrarily, with the defendants' counsel only mechanically concerting, to elicit from PW-3, of, Ex.PW2/A not holding concurrence with the apt demarcation held by the SDM concerned, rather fortifyingly impute(s) validation thereto. (j) Reitertedly, when it has not been demonstrably objected to nor when Ex.PW2/A is evidently, not, demonstrated to bear dis-concurrence therewith. In aftermath, when PW-3 makes, all the aforestated responses in his testification, thereupon, this Court conclude(s), of, the defendants acquiescing, to, the validity of preparation of Ex.PW2/A also its preparation being preceded, by a valid demarcation conducted by PW-3, of, the contiguous estates of the parties at contest. (k) Conspicuously, rather the defendants' counsel, not, yet making any concert, to elicit from PW-3 or from the plaintiff or from the records, the demarcation report, in sequel, whereof Ex.PW2/A was prepared by the patwari concerned, (l) especially given occurrence of a note therein, of, its preparation being sequelled, by PW-3 validly holding demarcation(s), of the contiguous estates, of, the parties at contest. Consequently, absence of the aforestated concert(s) by the defendants, to, confront PW-3 with the demarcation report prepared by him, rather theirs purveying vis-a-vis him, all the aforesaid apposite suggestion, whereto he purveyed affirmative responses, whereupon, he pronounced upon the validity of Ex.PW2/A besides qua validity(ies) of the demarcation conducted prior thereto by him, cannot, obviously at this belated stage, render them empowered, to make a frail effort, to, invalidate Ex.PW2/A, (m) merely, as untenably concluded by both the learned Courts below, of, the demarcation report prepared by PW-3 being neither tendered into evidence nor proven by him. Conspicuously, reiteratedly when all the aforesaid endeavours, despite, being available at the appropriate stage, to, the defendants, yet remaining omitted to be availed by them, (n) thereupon, they are estopped to invalidate Ex.PW2/A, solitarily, upon, demarcation report, evidently prepared, in consonance thereto, being not tendered into evidence. Accordingly, substantial question of law is answered in favour of the plaintiff/appellant and against the defendants/respondents. In view of the above, CMP No. 321 of 2006 and CMP No. 410 of 2006, are rendered infructuous, hence, are dismissed. 12. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court are not based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have excluded germane and apposite material from consideration. 13. In view of the above discussion, the instant appeal is allowed and the impugned judgments and decrees rendered by both the learned Courts below are set aside. Consequently, the suit of the plaintiff is decreed and the plaintiff/appellant herein is held entitled for vacant of possession of suit land shown as Khasra No. 576/313/1 in Ex.PW2/A, by way of demolition of the danga raised thereon. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back.