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2017 DIGILAW 54 (HP)

Santosh Kumar v. Sudesh Kumari

2017-01-12

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT Chander Bhusan Barowalia, J. —The present regular second appeal is maintained under Section 100 CPC by the appellants/defendants (hereinafter referred to as "the defendants") laying challenge to the judgment and decree passed by the learned Additional District Judge, Hamirpur, in Civil Appeal No. 67 of 2011, RBT-01/2014, dated 25.03.2014, whereby judgment and decree, dated 18.06.2011, passed by learned Civil Judge (Junior Division) Barsar, District Hamirpur, H.P., in Civil Suit No. 102/2005, allowing the suit of the respondent/plaintiff (hereinafter referred to as "the plaintiff") for permanent prohibitory and mandatory injunction, was affirmed. 2. Succinctly, the facts giving rise to the present appeal are that the plaintiff maintained a suit in the Court of first instance seeking fixation of boundaries, through demarcation, with consequential relief of permanent prohibitory and mandatory injunction qua the land comprised in Khata No. 199, Khatauni No. 232, Khasras No. 1281, 1282, measuring 14 marlas (as per jamabandi for the year 1991-92), situated in Tika Barsar, Tappa Panjgran, Tehsil Barsar, District Hamirpur, H.P. (hereinafter referred to as "the suit land" for the sake of convenience). Alternatively, the plaintiff sought the relief of mandatory injunction by demolition of construction raised by the defendants over the suit land during the pendency of the suit. As per the plaintiff, she is owner-in-possession of the suit land and the land of the defendants is adjoining to her land. The dispute qua boundary was persisting inter se the plaintiff and the defendants. The defendants initiated digging work and garnered the construction material on the spot during third week of July, 2005, so as to forcibly raise the construction. The plaintiff requested not to raise any construction till the boundaries of their lands are finalized, but the defendants did not desist. The defendants also deracinated the boundary of the suit land. 3. Conversely, the defendants, by way of filing the written statement, resisted the suit of the plaintiff. They took preliminary objections viz., maintainability, cause of action, locus standi, suit is barred by Order 2, Rule 2 CPC and the entire suit land is built up area having shops and there is no vacant land thereon. As per the defendants, their land is comprised of Field No. 1278/1 and a suit for permanent injunction against the plaintiff was filed by them, which was decreed on 05.09.2000. As per the defendants, their land is comprised of Field No. 1278/1 and a suit for permanent injunction against the plaintiff was filed by them, which was decreed on 05.09.2000. The suit land was got demarcated from Tehsildar (Settlement), Barsar, vide case No. 1 of 2001, dated 22.11.2001. As per the defendants, Khasra No. 1278/1 is identifiable and distinguishable on the spot, thus the plea of the plaintiff for fixation of the boundary is unwarranted. Ultimately, the defendants prayed that the suit may be dismissed. 4. The plaintiff, by filing replication, reiterated her claim and denied the contentions of the defendants. 5. The learned Trial Court on 18.01.2006 framed the following issues for determination and adjudication: "1. Whether the plaintiff is entitled for a decree of fixation of boundaries by way of demarcation as prayed? OPP 2. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction as prayed? OPP 3. Whether the plaintiff is entitled for a decree of mandatory injunction as prayed? OPP 4. Whether the plaintiff has no cause of action? OPD 5. Whether the suit of the plaintiff is not maintainable in the present form? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Whether the suit is barred by Order 2, Rule 2 of CPC? OPD 8. Whether the suit land stands covered and there exists no vacant portion as alleged? OPD. 9. Whether defendant is adjoining owner of the suit land and has raised construction on his own land? OPD. 10. Relief. Issue No. 1 became infructuous, as it was unearthed while deciding the suit that the boundaries of the suit land have already been fixed in demarcation conducted on 29.06.2010. Thus, there was no necessity for fresh demarcation. Issues No. 2, 3 were decided in favour of the plaintiff, issues No. 4 to 9 were decided against the defendants and the suit of the plaintiff was decreed. Thus, there was no necessity for fresh demarcation. Issues No. 2, 3 were decided in favour of the plaintiff, issues No. 4 to 9 were decided against the defendants and the suit of the plaintiff was decreed. The said judgment and decree assailed by defendants by filing an appeal under Section 96 CPC in the learned lower Appellate Court, which was dismissed, hence the present regular second appeal, which was admitted for hearing on the following substantial question of law: "Whether the findings of the learned trial Court as well as first Appellate Court are result of complete misreading and misinterpretation of the evidence and material on record and against the settled position of law?" 6. I have heard the learned Senior Counsel/Counsel for the parties and also gone through the record in detail. 7. The learned Senior Counsel for the appellant has argued that the learned Courts below have committed illegality in not appreciating the fact that new demarcation cannot be given when earlier demarcation exists. He has also argued that the final demarcation shows that there was no vacant land with the respondent and no decree could have been passed in favour of the respondent. The learned Senior Counsel has further argued that the findings with regard to the present suit, being barred under Order 2, Rule 2 CPC, have not been recorded by the learned lower Appellate Court, thus, the findings, as recorded by the learned Lower Appellate Court below, are no findings. On the other hand, the learned counsel for the respondent has argued that the earlier demarcation nowhere shows that plaintiff has no vacant land. Earlier demarcation only showed that on the land of the respondent/plaintiff there is structure, but that does not mean that only structure is existing and this interpretation is against the basic revenue law. She has further argued that the judgment and decree passed by the learned Courts below are just and reasoned, thus there is no substantial question of law involved in the instant appeal. She has argued that the respondent/plaintiff were never associated in earlier demarcation and the law, as settled by this Hon''ble High Court that in the new demarcation the boundaries cannot be changed, is not applicable at all. She has argued that the respondent/plaintiff were never associated in earlier demarcation and the law, as settled by this Hon''ble High Court that in the new demarcation the boundaries cannot be changed, is not applicable at all. In rebuttal, the learned counsel for the appellants has argued that the findings rendered by both the learned Courts below are perverse and so the appeal is required to be allowed on this count only. 8. In order to appreciate the rival contentions of the parties, I have gone through the record in detail. 9. Respondent/plaintiff appeared in the witness-box as PW-1 and deposed in her affidavit that appellants/defendants in the year 2005 started digging the suit land and collected construction material and dug the boundary of the suit land and they also encroached upon the suit land despite the stay order. The plaintiff in her cross-examination admitted that the earlier suit as well as the appeal by her, qua the suit land, stood dismissed. She has further stated that she obtained demarcation initially in the month of October, 1999. She has constructed three shops on the suit land while the defendants have constructed five shops. The defendants obtained demarcation of his land from Tehsildar. She has admitted that there is a vacant space available on the suit land behind the shops. She has stated that the defendant started the construction work on 21st July, 2005. 10. PW-2, Shri Prem Chand, has deposed that in the month of July, 2005, the defendants threatened to forcibly raise construction over the suit land and had collected the construction material. He has further deposed that when the spot was being inspected by the learned Advocate, he was present there. In his cross-examination he has admitted that the defendants got the suit land demarcated in his presence. PW-3, Shri Prithi Chand, likewise deposed that during the month of July, 2005, defendants started digging the suit land and also threatened to encroach upon the same. Despite the stay order, defendants encroached upon the suit land. He has further deposed that in his presence, the suit land was inspected by learned Advocate and at that point of time the defendants were raising construction. This witness, in his cross-examination divulged that plaintiff had purchased the suit land in the year 1981 and the same was demarcated thrice in his presence. He has further deposed that in his presence, the suit land was inspected by learned Advocate and at that point of time the defendants were raising construction. This witness, in his cross-examination divulged that plaintiff had purchased the suit land in the year 1981 and the same was demarcated thrice in his presence. He has admitted that defendants are owners of Field No. 1278/1, however, he has denied that shops of the defendants are situated in the said field. He volunteered that shops of the defendants are on the suit land. He has denied that the shops have been constructed by the defendants prior to filing of the suit and the same have been constructed after the stay order. 11. PW-5, Shri Kamal Nain, deposed that on 19.08.2005 he inspected the suit land and gave his report, Ex. PW-5/E, after recording the statements of the persons present there. He has further stated that he had not taken any help from Patwari nor he has prepared the site plan on the spot. PW-7, Shri Shakeen Chand, Naib Tehsildar, Bhota, produced the record of demarcation case No. 77 of 2006 and proved on record the documents, Ex. PW-7/A to Ex. PW-7/G. PW-8, Shri Dharam Pal Dogra, Naib Tehsildar (Settlement) (Retired) has deposed that the record of demarcation Case No. 33 of 2006 was remanded for fresh demarcation and for such demarcation he issued summonses to the parties for 30.10.2009, but the demarcation could not be completed, then he visited the spot on 29.06.2010 and conducted the demarcation in presence of Smt. Sudesh Kumari, Shri Sanjay Kumar, Shri Satish Kumar (Halqua Patwari), Kanungo and legal representatives of Shri Ram Parkash, who were impleaded as party on the application filed by the plaintiff on 17.09.2009. Statements of Smt. Sudesh Kumari, Shri Prem Chand, Shri Mohinder Singh and Shri Suresh Kumar were recorded after starting the demarcation. During the demarcation, it was found that the defendants had encroached upon the suit land. He admitted that the construction over the suit land was old one. Defendant, Ram Parkash, deposed that he is in possession of the suit land comprised of Field No. 1278/1 and he has already constructed his shop over the same. He has also filed a suit qua such land against the plaintiff, which stands decreed in his favour. He had obtained demarcation of this land on 22.11.2001. Defendant, Ram Parkash, deposed that he is in possession of the suit land comprised of Field No. 1278/1 and he has already constructed his shop over the same. He has also filed a suit qua such land against the plaintiff, which stands decreed in his favour. He had obtained demarcation of this land on 22.11.2001. In his cross-examination he has admitted that the plaintiff is owner of the suit land. He has also admitted that in July, 2005, he was restrained by the Court from raising construction over the suit land. He has denied that any Advocate visited and inspected the suit land. He admitted that compromise mark ''A'' was entered into between the parties on 26.06.2009. He admitted his signatures on statement, Ex. PW-4/C. He denied that during the visit of the learned Advocate, he was raising construction and stated that he started the construction work in December, 2004 and finished the same in February, 2005. 12. Shri Udho Ram (DW-2) stated that the defendants have constructed the shops over their own land since long. In his cross-examination this witness did not disclose that the defendants uprooted the boundary of the suit land in July, 2005. He also could not tell that anyone inspected the suit land. He deposed that plaintiff has two shops and defendants have four shops. DW-4, Shri Jai Chand, Tehsildar deposed that he demarcated the land of the defendants and gave his report, Ex. DW-3/P. He started the demarcation from Fields No. 1270, 1278/1, 1278/6 and 1278/8. This witness admitted that Fields No. 1278/1, 1278/6 and 1278/8 were to be demarcated. Defendant, Shri Naresh Kumar (DW-5) stated that the plaintiff obtained the demarcation behind his back without any information. During his cross-examination he has admitted his signatures on the summons, Ex. PZ. The ownership of the plaintiff over the suit land was admitted by this witness. He has also admitted that shops depicted in photograph, Ex. PZ-4, have been constructed by them, however, he has volunteered that the same have been constructed in Field No. 1278/1. He also admitted that they have not obtained any demarcation after filing of the suit by the plaintiff. He denied that his brothers signed document, Ex. PW-7/C. Lastly, he has denied that they have encroached upon the suit land. 13. PZ-4, have been constructed by them, however, he has volunteered that the same have been constructed in Field No. 1278/1. He also admitted that they have not obtained any demarcation after filing of the suit by the plaintiff. He denied that his brothers signed document, Ex. PW-7/C. Lastly, he has denied that they have encroached upon the suit land. 13. One of the specific question which was raised in the appeal before the learned lower Appellate Court was with regard to the fact that the suit was barred under Order 2, Rule 2 CPC. The learned lower Appellate Court while dealing with this issue has simply referred the law on the point and thereafter held that the earlier suit was filed on a different cause of action. The learned lower Appellate did not discuss anything with regard to cause of action in the earlier suit and cause of action in the present suit. The contention of the defendants was brushed aside simply by writing a single line that the earlier suit was on a different cause of action. 14. While appreciating the arguments of the learned counsel for the parties, this Court came to the conclusion that the findings in a single line on this issue are no findings. The learned Lower Appellate Court did not discuss how the earlier suit was filed on a different cause of action and what was the cause of action in that earlier suit and what is the cause of action in the present suit. The findings were recorded without even discussing the relief claimed in the earlier suit, the relief claimed in the present suit, what was the cause of action in the earlier suit and what is the cause of action in the present suit, the findings are no findings in the eyes of law. 15. The law is settled that whenever the court is dealing with a point, it should give its clear findings with reasons after discussing that point. The learned Lower Appellate Court discussed the law with regard to Order 2, Rule 2 (3) in paras 17 and 18 of the its judgment, however, in para 20, the learned Appellate Court gave its findings only in a single line, that is, "However, the previous suit was filed on a different cause of action.". This is no finding. The learned Lower Appellate Court discussed the law with regard to Order 2, Rule 2 (3) in paras 17 and 18 of the its judgment, however, in para 20, the learned Appellate Court gave its findings only in a single line, that is, "However, the previous suit was filed on a different cause of action.". This is no finding. Therefore, the findings, with regard to Order 2, Rule 2 CPC as recorded by the learned Lower Appellate Court, are the result of misreading and misinterpretation of the material on record, hence in the eyes of law are no findings. So the substantial question of law is answered in the affirmative and as a result of which, the judgment and decree of the learned Lower Appellate Court is set aside with a direction the learned Lower Appellate Court to rehear the matter afresh and give its findings after appreciating the evidence, law and the material which has come on record. 16. Resultantly, the appeal is allowed and disposed of, however, in view of peculiar facts and circumstances of the case, parties are left to bear their own costs. 17. The parties are directed to appear before the learned Lower Appellate Court on 20th January, 2017. The Registry is also directed to send the records of the case forthwith.