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2018 DIGILAW 388 (HP)

Yoginder Paul v. Rup Lal

2018-03-19

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The plaintiffs' suit for rendition of a decree, for permanent prohibitory injunction besides for rendition of a decree, for mandatory injunction by way of apposite demolitions, stood decreed by the learned trial Court. In an appeal carried therefrom, by the defendant, before the learned First Appellate Court, the latter Court allowed his appeal besides obviously reversed the trial Court's judgment and decree. 2. Briefly stated the facts of the case are that the plaintiff has filed a suit for permanent prohibitory injunction and for possession by way of demolition against the defendant. It has been pleaded that he and his brothers, namely, Roshan Lal, Desh Raj, Onkar Chand and mother Smt. Rupan Devi are owner in possession over the land in suit comprised in Khata No.77, Khatoni NO.92, Khasra No.931, measuring 0 Kanal 15 Marlas, as per jamabandi for the year 1966-97 (hereinafter referred to as the suit land), situated at Tika Paplah, Tappa Mowa, Tehsil Bhoranj, District Hamirpur, H.P. It is further averred that the plaintiff, his brother and mother have exchanged the entire Khasra number with owner Shri Parkash etc., who are in exclusive possession over the land in suit and as such the plaintiff has become owner in possession this land in suit with his brothers and mother. It is alleged that defendant is stranger to the suit land, who is coowner of the adjoining land, who has started digging the land in suit, for the purpose of raising illegal construction. The plaintiff requested the defendant several times to admit his claim qua the suit land, but all in vain, hence, the present suit has been filed. The cause of action is stated to have accrued in favour of the plaintiff and against the defendant on 27.2.2001. 3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections of maintainability, cause of action and estoppel etc. On merits, it is claimed that defendant had already constructed his house in the year 1992-93 over his own land comprised of Khasra No.932, which he purchased from Shri Kiali Ram and Rattan Chand of village Paplah to the extent of 0Kanal 15 Marlas. It is further claimed that the plaintiff has no cause of action. The suit land was being demarcated by revenue expert in the year, 1991. It is further claimed that the plaintiff has no cause of action. The suit land was being demarcated by revenue expert in the year, 1991. During course of demarcation, pucca bannas were fixed by the revenue expert and the defendant has constructed his house within less than his share. It is alleged that the plaintiff has started interference in the land of defendant comprised of Khasra No.932. The defendant has spent huge amount for the construction of his house in the year 1991 and at that time the plaintiff did not raise any objection qua the same. Therefore, on the grounds above, the dismissal of suit is sought by the defendant. 4. 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 entitled to the relief of permanent prohibitory injunction as prayed for? OPP. 2. Whether the plaintiff is entitled for the relief of possession by way of demolition as prayed for? OPP. 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has no cause of action in the present suit? OPD. 5. Whether the plaintiff is estopped to file the present suit by his own act or conduct? OPD. 6. Whether the suit is bad for non joinder of necessary parties? OPD. 7. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom, by the defendant/respondent herein before the learned First Appellate Court, the latter Court allowed the appeal and reversed the findings recorded by the learned trial Court. 6. 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, on 9.9.2007, 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 questions of law:- 1. When the appeal came up for admission, on 9.9.2007, 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 questions of law:- 1. Whether the impugned judgment passed by the learned First Appellate Court is the result of total misreading and misappreciation of pleadings and evidence adduced on record and resultant findings and conclusions are wrong and incorrect, as such, such issues are liable to be determined afresh under Section 103 CPC? 2. Whether the learned Court below has committed error of law in discarding the demarcation report (Ex. PW3/B) and thereby, the judgment and decree passed by learned trial Court in favour of appellant/plaintiff was illegally and incorrectly reversed? Substantial questions of Law No.1 & 2: 7. The Revenue Officer concerned, in pursuance to his holding demarcation of the adjoining estates, of the parties at contest, prepared an apposite report, and, during the course of his testification tendered it into evidence, whereat, it was exhibited as Ex.PW3/B. A perusal of Ex.PW3/B, underscores, the trite factum (i) of the defendant while holding construction, upon, land owned and possessed by him, as comprised in khasra No.932, his deviating therefrom onto the land of the plaintiff, comprised in Khasra No.931. (ii) The encroachment, hence, made by the defendant upon the plaintiff's land, carries dimensions of one Karam in width and five karams in length. The learned trial Court had accepted the report of the Local Commissioner concerned, borne in Ex.PW3/B, whereas, the learned First Appellate Court discarded its legal worth. Since, the demarcation, conducted, of the adjoining estates of the parties at contest, by the demarcating officer, was, anvilled upon a musabi borne in Ex.PW3/C also with its standing conducted n the presence of the parties at contest,(iii) besides when preceding the revenue officer concerned hence holding demarcation of the adjoining estates, of the parties at contest, his from Ex.PW3/C, ascertaining the relevant fixed points, (iv) whereafter, he relayed them onto the relevant site, (v) thereupon, prima facie per se, hence, the aforesaid determinations made from the apt record, and, also carrying of demarcations by the Revenue Officer concerned, cannot be construed, to be either flawed or faulted. (v) In original musabi, borne in Ex.PW3/C, the western dimension, of Khasra No.931 is visibly depicted to be 9 Karams, (vi) whereas, the Local Commissioner has construed the western dimension of Khasra No.931, to be rather carrying a dimension, of 6 karams. The Local Commissioner at the end of his cross-examination, has, rendered an affirmative echoing, to an affirmative suggestion, (vii) of in case, his taking the depicted dimensions in the musabi, of Khasra No.931, being 9 karams, thereupon, there would occur variation(s) in the determination, of fixed points. The aforesaid admission made by PW-3, at the end, of his testification, tacitly underscores, (viii) the factum of the aforesaid mis-derivation, of the western dimensions, of Khasra No. 931, from 9 Karams, as disclosed in the musabi borne in Ex.PW3/C, to 6 Karams, (ix) hence, per se sequelling an error in the demarcation, conducted by him of the adjoining estates of the parties at contest. Significantly, hence, the further sequel thereof, is that, the report furnished by PW-3, exhibited as Ex.PW3/B, being unwrothy of credence, nor on its anvil, any inference being derived, of hence, the defendant in raising the construction upon his land, comprised in Khasra No.932, his deviating onto the land of the plaintiff, borne in Khasra No.931. The further reason for making the aforesaid conclusion, (x) is of both PW-3 and DW2, unanimously echoing in their respective testifications, of their existing a 'galli', separating the constructions, made by the plaintiff and the defendant, upon their respective adjoining estates. The aforesaid existence of a gali, and its rather separating, the constructions, made upon their respective estates, by the litigants concerned, also underscores, an inevitable inference, of there being a gross error, in the holding of demarcation by PW-3, (xi) besides sequelly, a gross error hence seeping into his report, borne in ex.PW3/B, rendering it to be susceptible to acceptance. Even though, PW-3 for rendering, his rather credibly construing the western dimension, of khara No.931, as 6 karams, from its denoted dimensions, of 9 Karams in the musabi, borne in Ex.PW3/C, and also has concerted to validate it, by ascribing the reason, of, old Khasra No.1495/1173 being partitioned between the co-owners, and, in the apposite partition, the western dimensions thereof being indicated as 6 karams, yet he omitted to adduce, any evidence in respect thereof. Even if, the aforesaid alterations, hence, occurred, in the western dimensions of old khasra number(s) upon their partition, (xii) yet all compatible alterations, were, enjoined to be depicted besides carried also in the Aks musabi, borne in Ex.PW3/C, (xiii) whereas, the aforesaid purported alterations, in the western dimensions, of unpartitioned khasra No. 1495/1173, from, its hitherto dimension(s) of 9 Karams, to 6 Karams, has visibly remained unaffected, in Aks musabi, borne in EX.PW1/C, (xiv) thereupon, the aforesaid validation concerted to be meted by PW-3 vis-avis his taking the western dimension of the apt khasra number, as 6 Karams from 9 Karams,, is rendered enfeebled nor is amenable to acceptance. 8. Be that as it may, the learned counsel appearing, for the plaintiff/appellant, has contended that with the reasons ascribed by the learned First Appellate Court, for its hence upon the aforesaid anvil, rather discarding the report of the demarcation Officer, borne in Ex.PW3/B, being visibly not in consonance with the objections, in respect thereof reared by the defendant/respondent, hence any dis-imputation of credence by the learned First Appellate Court vis-a-vis Ex.PW3/B, is not credit worthy. However, the aforesaid contention is rudderless, for the reasons (a) the defendant/appellant rather rearing objection No.3, objection whereof, directly appertains to the aforesaid error, made, by the demarcating Officer concerned, in his conducting the demarcation of the adjoining estates of the parties at contest, (b) error whereof is engendered by his drawing erroneous dimensions, of the apposite zone, of khasra No.931, (c) even if assumingly no pointed objection in respect thereof, stood raised, the courts of law are not barred, to in case evidence unfolding the aforesaid pervasive infirmity rather surges-forth, to hence, revere the infirmities nor are barred to hence invalidate the demarcation, conducted by the demarcating Officer concerned. 9. The learned counsel appearing for the plaintiff/appellant, has contended with vigour, that in case any infirmity, exists in the report furnished by the demarcating officer, yet this Court holding ample jurisdiction, to order for carrying, of, a fresh demarcation in accordance with law. 9. The learned counsel appearing for the plaintiff/appellant, has contended with vigour, that in case any infirmity, exists in the report furnished by the demarcating officer, yet this Court holding ample jurisdiction, to order for carrying, of, a fresh demarcation in accordance with law. However, the aforesaid submission is unacceptable, for this Court, (a) given the demarcation conducted by the Revenue Officer concerned, being evidently conducted in gross transgressions, of denotations, in Aks musabi, of the western side of khasra No.931, being 9 Karams, and, also rather his overriding the aforesaid scribed denotations therein, of the, western dimensions of khasra No.931, and, his untenably computing them to be six Karams, (b) especially when he also, for the reasons aforestated, ascribes rather a tenuous besides a weak reason, qua facet aforesaid, (c) thereupon, in case a fresh demarcation is ordered, the dispute existing inter se the parties at contest would, yet remain unrested, (d) unless, musabi borne in Ex.PW1/C, is subjected to correction, in settlement proceedings, for hence bringing it, as testified by PW-3, in consonance with the pre-consolidation record, whereat, upon partition, of, khasra No.1495/1173, hence, alterations purportedly occurred in the western side of Khasra No. 1495/1193, from, 9 karams to six karams, besides preponderantly when awaiting corrections thereto, if any, required, and, if imperative would render any nowat demarcation, to be also susceptible to skepticism. (e) Even otherwise, the aforesaid submission made by the counsel for the appellant/plaintiff is inefficacious, for the reason, the plaintiff's suit, being merely for rendition of a decree of permanent prohibitory injunction, as also, for rendition of a decree of mandatory injunction, pointedly in respect of a cause of action, arising on 27.2.2001, whereat, the defendant purportedly started excavation work purportedly upon the plaintiff's land. However, uncontrovertedly, and, even as testified by the plaintiff, the constructions raised by the defendant, appertain, to the year 1992. However, in respect thereto, no trite averment is cast in the plaint, of its, existing upon khasra No.931, owned and possessed by the plaintiff. It appears, that as soon as a demarcation report, was prepared by PW-3, especially with its preparation evidently occurring prior to the plaintiff stepping into the witness box, thereupon, the latter fashioning, and, orienting his testification, in consonance therewith. It appears, that as soon as a demarcation report, was prepared by PW-3, especially with its preparation evidently occurring prior to the plaintiff stepping into the witness box, thereupon, the latter fashioning, and, orienting his testification, in consonance therewith. However, the aforesaid oriented testification, of the plaintiff merely, for bringing it, in consonance with Ex.PW3/B, prepared earlier therewith, cannot overcome, the omissions of the plaintiff, to plead in the plaint, of constructions uncotrovertedly raised, in the year 1992, by the defendant, being raised upon khasra No.932, khasra No. whereof is owned and possessed by the defendant, more so, when no demarcation report was appended with the plaint. Obviously, hence, in case the aforesaid espousal of the counsel, for the plaintiff is accepted, it would tantamount to this Court proceeding to afford relief, on anvil, of, for reasons aforestated, of, yet an invalid demarcation report rather surging forth, also it would tantamount, to this Court, rendering a decree in respect of construction qua wherewith, no relief has been espoused in the plaint, importantly, when no application stands yet moved by the plaintiff, wherein, he weeks the leave of the court, to incorporate, in the plaint, pleadings or reliefs, in consonance with the invalid report, of the demarcating officer, whereupon, unnecessary litigation would hence spur. 10. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court being based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Substantial questions of law No.1 and 2 are answered in favour of the respondent and against the appellant. 11. In view of above discussion, there is no merit in the instant appeal and it is dismissed accordingly. Consequently, the judgment and decree rendered by the learned First Appellate Court in Civil Appeal No.72 of 2004 is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.