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2018 DIGILAW 880 (HP)

Jai Kishan v. Sita Ram

2018-05-14

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for permanent prohibitory injunction, as well as in alternative, for, rendition of a decree for possession qua the suit khasra number(s), was, hence decreed. 2. Briefly stated the facts of the case are that the plaintiff Sita Ram on 16.8.1999 had instituted a civil suit for permanent injunction against the defendants on the averments that he along with others is joint owner in possession of land bearing Khata No.133 min, Khatoni No.134 min, Khasra No.3390, measuring 4 kanals, 18 marlas, situate in Tika Jajri, Mouza and Sub Tehsil Dhatwal, District Hamirpur. The defendants had no right, title or interest upon the suit land. The defendants had started interfering with the ownership and possession of the plaintiff over the suit land w.e.f. first week of August, 1999. The defendants had been cutting grass from the suit land. They had also started digging the same with a view to construct a road through the suit land. The defendants had been requested not to do so, but without any result and hence the suit for permanent injunction against the defendants. It is also averred that in case the defendants were successful in taking forcible possession of the suit land, a decree for possession be passed. 3. The defendants contested the suit and filed written statement, wherein, he has taken preliminary objections inter alia maintainability, non joinder of necessary parties and want of cause of action. On merits, the defendants had admitted the ownership and possession of the plaintiff and others over the suit land. It had been stated in the books of the Collector the description of the suit land had been recorded “Nullah”. However, a road had been passing through the suit land. The road through the suit land had been constructed with the consent of the plaintiff, some times in 1995-96. The vehicles were stated passing through the suit land. It had also been averred that at the time of the consolidation operation, all the proprietors had agreed to contribute a portion of their holding for road. The plaintiff had also consented for such contribution and the road had been constructed long back. The plaintiff was not entitled to any relief much less to the discretionary relief of permanent injunction. 4. The plaintiff had also consented for such contribution and the road had been constructed long back. The plaintiff was not entitled to any relief much less to the discretionary relief of permanent injunction. 4. The plaintiff filed replication to the written statement of the defendant(s), 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 entitled to the injunction prayed for?OPP. 2. Whether the plaintiff is entitled to a decree for possession as claimed? OPP. 3. Whether the plaintiff has a cause of action?OPP. 4. Whether the suit is not maintainable in the present form?OPD. 5 Whether the suit is bad for non joinder of necessary parties?OPD. 6. Whether there exists a road on the spot as alleged. If so, its effect?OPD. 7. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the defendants/appellants 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 defendants/appellants herein, have instituted the instant Regular Second Appeal, before, this Court, wherein they assail the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 22.10.2014, admitted the appeal instituted by the defendants/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the first appellate Curt has acted with illegality while dismissing the appeal on the ground that those, who were affected by the suit had not been appealed and only few of them have filed the appeal? 2. Ether the first appellate court's finding that writing Mark-A being not signed by all the persons, who are recorded as joint owners of the suit land cannot be acted upon especially when such other persons (recorded as joint owners) re not even party to the litigation? 3. Whether the writing Mark-A is binding upon the respondents?\ 4. Whether the finding of the Courts below is contrary to the facts and erroneous? 3. Whether the writing Mark-A is binding upon the respondents?\ 4. Whether the finding of the Courts below is contrary to the facts and erroneous? Substantial questions of Law No.1 to 4: 8. The espousal addressed before this Court, by the learned counsel, for the defendants/appellants, is, anvilled upon Mark-A, and, with the plaintiff in his cross-examination, hence, admitting qua the signatures occurring thereon, in red circle, rather belonging to him, (i) thereupon, with recitals occurring therein, making bespeakings, of his, along with other co-signatories thereto, hence, meteing their respective consents, for, the construction of road, upon the suit land, AND, in consonance with the apt survey, and, also hence all signatories thereto, permitting qua carrying, of, road construction activity, upon their respective lands, (ii) whereupon, he, hence, contends, that, even if Mark-A, is, only a photo copy, and, hence remained not proved, from, its original, nor any application, for secondary evidence, hence, being adduced, for, tendering a photo copy of the original, (iii) rather not rendering, it, to either unreadable or inadmissible nor irrelevant, given, the plaintiff in his cross-examination, admitting, his signatures, occurring, thereon in red circle. The aforesaid contention, has immense force and palpably rather germinates, from, the factum of the plaintiff, admitting, his signatures, to occur, in red circle, of, Mark-A, (iv) thereupon, it is rendered admissible besides readable, dehors it being merely a photo copy, of, the original besides dehors, contents thereof being not proved from its original or dehors no affirmative order being pronounced upon any apposite application, for tendering besides proving the apt photo copy, of, the apt original. However, even if this Court hence concludes, of, Mark-A being admissible besides readable in evidence, yet would not provide, any capitalization, to, any further argument, of the learned counsel, appearing for the defendants/appellants, qua on anvil thereof, hence, the concurrently rendered judgments and decrees, pronounced, by both the learned Courts below, rather being fallible. However, even if this Court hence concludes, of, Mark-A being admissible besides readable in evidence, yet would not provide, any capitalization, to, any further argument, of the learned counsel, appearing for the defendants/appellants, qua on anvil thereof, hence, the concurrently rendered judgments and decrees, pronounced, by both the learned Courts below, rather being fallible. The reason for making the aforesaid conclusion, arises, from the factum of (a) there occurring a candid display, in Mark-A, of, all the signatories thereto including the plaintiff, agreeing, for construction of road, in consonance, with, the apt survey, (b ) thereupon, it was imperative for the defendants, to place reliance thereon, and, thereafter to tender besides adduce, in evidence, the apposite survey, in consonance wherewith, the signatories to Mark-A, including the plaintiff, echoed in Mark-A, their apposite acquiescences vis-a-vis the construction, of, a road thereon, (c) whereas, with, the apposite survey rather remaining unadduced into evidence nor any precise or specific delineations, hence occurring in Mark-A, specifically appertaining, to the suit khasra number, owned and possessed, by the plaintiff, thereupon, the defendants, are, estopped, to stake any claim thereon. 9. Be that as it may, the learned counsel appearing, for the defendants/appellants, has also made an effort, to belittle the worth, of, the aforesaid inferences by his alluding to the cross-examination, of, the plaintiff, wherein he makes communication(s), of, Mark-A, hence, appertaining, to construction of a road, occurring in proximity, to the abode of the plaintiff, (i) hence, thereupon, he contends that the aforesaid echoings, are, in concurrence with Mark-A, hence the plaintiff's suit, was amenable, to dismissal. However, the aforesaid submission carries no force nor weight, reiteratedly given, the defendants not placing on record, the apt survey hence with depiction(s) therein, of it, bearing consonance, with, the aforesaid admission rather occurring, in the cross-examination, of, the plaintiff, besides with Mark-A not carrying any echoings therein, for hence, stirring any inference, of, its rather concurring, with, the aforesaid echoings, made by the plaintiff, in his cross-examination, reiteratedly, hence renders it, to warrant its rejection. 10. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being 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 not excluded germane and apposite material from consideration. 10. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being 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 not excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the respondent/plaintiff and against the appellants/defendants. 11. In view of the above discussion, there is no merit in the instant Regular Second Appeal and it is dismissed accordingly. In sequel, the judgments and decrees rendered 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.