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Himachal Pradesh High Court · body

2018 DIGILAW 2040 (HP)

Harpreet Singh v. Subhash Chand

2018-11-20

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The instant appeal stands directed against the concurrently recorded verdicts by both the learned Courts below, whereunder, they dismissed the plaintiff''s suit for rendition of a decree, for permanent prohibitory injunction besides in the alternative for rendition, of, a decree, for mandatory injunction, and, for possession of the suit khasra numbers. 2. Briefly stated the facts of the case are that the plaintiff claimed himself to be owner in possession of land bearing Khasra No.432, situated in Mini Secretariat, Nalagarh and that the alleged encroachment of the suit land to the extent of 1.16 square meters, 5.80 meters in length 0.20 meters in width by the defendant and on which the defendant was alleged to have raised walls of his shops. The defendant was stated to have purchased the land measuring 173.99 sq. meters, but has wrongly and illegally raised the wall on the old foundation of the plaintiff by way of encroachment and for removal of the encroachment and for possession, the suit was filed by the defendant. 3. The defendant contested the suit and filed written statement, wherein, he had denied the claim of the plaintiff. The defendant through admitted of his having purchasing the land measuring 173.99 square meters but denied having made any encroachment on the land of the plaintiff. He leveled counter allegations and denied the making of any encroachment by raising wall on the existed foundation. It was alleged that the plaintiff used the wall of the defendant without raising his own walls. It was also alleged that he had also filed a suit earlier against the plaintiff and the present suit is not maintainable and the earlier suit between the parties is pending and prayed for dismissal of the suit. 4. The plaintiff filed replication to the written statement of the defendant, 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 defendant has encroached upon the suit land without any right title or interest? OPP 3. Whether the suit is not maintainable? OPD. 4. Whether the plaintiff is having no locus standi? OPD. 5. Whether the plaintiff is owner of the suit land? OPP. 2. Whether the defendant has encroached upon the suit land without any right title or interest? OPP 3. Whether the suit is not maintainable? OPD. 4. Whether the plaintiff is having no locus standi? OPD. 5. Whether the plaintiff has no come to the court with clean hands?OPD. 6. 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 herein 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 assail the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 17.12.2008, 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 questions of law:- 1. Whether both the learned Courts below have misread and mis-interpreted the documentary evidence on the record and has come to a conclusion which is not sustainable in the eyes of law? 2. Whether the failure of the Lower Appellate Court in not getting the are of 41.34 sq. meters demarcated has resulted in the miscarriage of justice, if so the appeal deserves to be allowed remanded back to the Lower Appellate Court? 3. Whether the ld. Lower Appellate Court has failed to take into consideration the finding of the ld. Trial Court on issue No.1 and issue No.2, if so its effect? Substantial questions of Law No.1 to 3: 8. The plaintiff''s suit, whereunder, he sought rendition of a decree of permanent prohibitory injunction, and, of mandatory injunction, vis-a-vis, the suit khasra numbers, is, anvilled, upon, a demarcation report, borne in Ex.P-4. Trial Court on issue No.1 and issue No.2, if so its effect? Substantial questions of Law No.1 to 3: 8. The plaintiff''s suit, whereunder, he sought rendition of a decree of permanent prohibitory injunction, and, of mandatory injunction, vis-a-vis, the suit khasra numbers, is, anvilled, upon, a demarcation report, borne in Ex.P-4. The efficacy of the afore demarcation report, embodied in Ex.P-4, (a) is, omnibusly eroded, given, in an earlier litigation, inter se the parties at contest, and, appertaining to suit khasra numbers, Khasra number whereof, visibly holds analogity, vis-a-vis, the khasra number hereat; (b) in suit whereof, the plaintiff herein was arrayed as defendant; (c) a conclusive verdict standing rendered thereon, whereunder, the hereat defendant, therein suing, as, plaintiff, hence, succeeded, in obtaining a decree for permanent prohibitory injunction, vis-a-vis, the suit khasra number(s), (d) and, the afore demarcation report stood adduced therein into evidence, and, rather stood pronounced to be infirm. Fortifying conclusivity to the judgments, and, decrees rendered respectively, by, the learned trial Court, and, the learned First Appellate Court, verdicts whereof stand respectively borne in Ex. D-1, and, in Ex.PA, is, acquired (i) by the factum of the verdict, of, dismissal of the review petition, by the learned First Appellate Court, as stood, reared therebefore, against the pronouncement, borne in EX.PA, rather standing affirmed by this Court, in, a verdict rendered upon C.R. No.70 of 2007, wherethrough, the order of dismissal of the review petition, directed, against the verdict borne in Ex.PA, hence, stood assailed. In aftermath, with immense formidable conclusivity, standing, acquired by Ex.PA, and, with the suit khasra numbers in both, the earlier suit, and, in the extant suit being similar, and, besides the apt litigating parties also holding analogity, (ii) thereupon, the principle of res judicata is attractable, vis-a-vis, the extant plaintiff'' suit, (iii) conspicuously, when the reliance in the instant suit, is, anvilled upon Ex.P-4, exhibit whereof, comprises, a, demarcation report, reliance whereon also stood placed, in, the earlier suit, and, rather stood rejected, (iv) thereupon, on anvill of Ex.P-4, no decree being renderable, vis-a-vis, the suit khasra numbers, and, qua the plaintiff. 9. 9. Be that as it may, the learned counsel for the appellant, has, contended with much vigour, that, dehors any purported lack of tenacity being bestowable, upon, Ex.P-4, yet with Ex.P-4, comprising a demarcation report, rendered by the Demarcating Officer concerned, during, the pendency of the suit, and, with occurrence therein, of, echoings rather holding leanings towards the plaintiff, and, hence, on anvill thereof, the plaintiff''s suit being decreeable. However, any reliance thereupon, at this stage hence is misplaced, (i) given the parties, recording a compromise, borne in Ex.P-14, and,on anvill thereof, the Assistant Collector 2nd Grade concerned, opining, that, hence with the compromise occurring, inter se, the litigating parties, (ii) thereupon, the report is not Kable Samayat , and, also with the contesting parties not placing tenacious reliance, upon, Ex.P-10, and, upon Ex.P14, (iii) thereupon, the placing, of, any reliance thereon, at this belated stage is inapt, more so, when as aptly concurrently concluded by both the learned Courts below qua the report borne in Ex.P-10, being drawn in gross transgression, of, the mandate contained in the H.P. Land Records Manual. 10. 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 being based upon a proper and mature appreciation of evidence on record. While rendering the findings, both the learned Courts below have not excluded germane and apposite material from consideration. Substantial questions of law No.1 to 3, are answered in favour of the respondent/defendant, and, against the appellant/plaintiff. 11. In view of above discussion, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the concurrently recorded judgment(s) and decree(s) by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.