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2019 DIGILAW 1090 (HP)

Rattanu v. Lakhu

2019-08-02

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, Judge(Oral): By way of this appeal, the appellant has prayed for the following relief: ?It is, therefore, respectfully prayed that this appeal may very kindly be allowed and the impugned judgment and decree, dated 07.05.2007, passed by the learned District Judge, Bilaspur, in Civil Appeal No. 3 of 2006, whereby he has affirmed the judgment and decree dated 5.11.2005, passed by learned Civil Judge (Senior Division), Bilaspur in Civil Suit No. 30/1 of 2000 may very kindly be quashed and set aside and consequently decreeing the suit of the plaintiff/appellant with costs throughout.? 2. Brief facts necessary for the adjudication of the present appeal are that appellant-plaintiff (hereinafter referred to as =the plaintiff') filed a suit for permanent prohibitory injunction against the respondents-defendants (hereinafter referred to as =the defendants'), inter alia, on the ground that he was owner in possession of the suit land comprised in Khewat No. 426, Khatauni No. 654, Khasra Nos. 871 and 886, measuring 0.11 bigha, situated in Village Panjgain, Pargana and Tehsil Sadar, District Bilaspur, H.P. and the defendants who had no right, title or interest over the same, were threatening to build a house over the suit land, for which, they had also collected construction material. As per the plaintiff, he had requested the defendants not to raise any construction or interfere with the suit land, but they were not paying any heed, hence the suit for permanent prohibitory injunction against the defendants. 3. The defendants by way of their written statement contested the suit and took the stand that they were not giving any threats to build any house over the suit land nor they were raising any construction over the same by collecting any construction material and in fact the suit stood filed by the plaintiff falsely without any cause. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues: ?1.Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for? OPP. 2. Whether the plaintiff in the alternative is entitled to a decree for vacant possession of the suit land? OPP. 3. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD. 4. Whether this Court has no jurisdiction to hear and decide the suit? OPD. 5. Relief.? 5. OPP. 2. Whether the plaintiff in the alternative is entitled to a decree for vacant possession of the suit land? OPP. 3. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD. 4. Whether this Court has no jurisdiction to hear and decide the suit? OPD. 5. Relief.? 5. These issues were decided by the learned Trial Court as under: ?Issue No. 1: No. Issue No.2: No. Issue No. 3: No. Issue No. 4: No. Relief: The suit of the plaintiff is dismissed as per operative part of the judgment.? 6. The suit was dismissed by the learned Trial Court by holding that the plaintiff had not produced any evidence on record to demonstrate that defendants were either interfering in the suit land or had raised any construction over the same. Learned Court held that as the plaintiff had filed suit against the defendants alleging that they were raising construction over the suit land, hence onus to prove this fact was upon the plaintiff and the statement of the plaintiff as well as other two witnesses who had deposed in favour of the plaintiff did not prove the said fact. Learned Court also held that there was no other evidence on record to prove the allegation of the plaintiff and the statement of the plaintiff and other two witnesses did not demonstrate that the defendants had raised any construction over the suit land. Learned Court further held that the case of the defendant was that they had raised construction over their own land and not over the suit land. Learned Court observed that the plaintiff had not filed any Tatima to pin-point where the construction had been raised by the defendants and in the absence of any documentary record on file, merely on the basis of oral, uncertain and vague statements of the plaintiff and his witnesses, no relief could be granted to the plaintiff, as it was not clear from the evidence on record that the defendants had raised any construction over the suit land. 7. These findings in appeal were upheld by the learned Appellate Court. 7. These findings in appeal were upheld by the learned Appellate Court. Learned Appellate Court held that there was no reason to disbelieve the version of defendant-Lakhu Ram, who had entered the witness box as DW-1 and had deposed that he had raised construction over his own land, which version of his was duly corroborated by the statement of DW-2-Parma Nand. While rejecting the contention of the plaintiff that as there was boundary dispute, therefore, Local Commissioner was required to be appointed to resolve the same, learned Appellate Court held that there was no legal force in the said contention, because the plaintiff has to stand upon his own legs to prove the facts narrated in the plaint, on the basis of evidence led by him and in the plaint, there was no such allegation that there was a boundary dispute between the parties. On the contrary, it was quite apparent that plaintiff was well aware of his boundary and for this reason, he had made a specific allegation that defendants had theretened to raise construction over the suit land. Learned Appellate Court, thus, while upholding the findings returned by the learned Trial Court, dismissed the appeal by holding that there was no infirmity with the findings of the learned Trial Court that as the plaintiff had failed to prove his case, therefore, he was not entitled for permanent prohibitory injunction or mandatory injunction. 8. Feeling aggrieved, the plaintiff has filed the present appeal, which was admitted on 24.09.2008 on the following substantial questions of law: ?1. Whether the impugned judgment and decree is result of misreading and mis-appreciation of oral as well as documentary evidence particularly Ex.D-4 and Ex.PA on record? 2. Whether the learned Courts below are justified in dismissing the suit without waiting for the report of the Local Commissioner, who was appointed by the Court vide its order dated 18.07.2005?? 9. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by the learned Courts below as well as the record of the case. 10. I will deal with both the substantial questions of law independently. Substantial Question of law No. 1: ?1. Whether the impugned judgment and decree is result of misreading and mis-appreciation of oral as well as documentary evidence particularly Ex.D-4 and Ex.PA on record?? 10. I will deal with both the substantial questions of law independently. Substantial Question of law No. 1: ?1. Whether the impugned judgment and decree is result of misreading and mis-appreciation of oral as well as documentary evidence particularly Ex.D-4 and Ex.PA on record?? Ex.-D4 is the copy of demarcation report, dated 10.01.2002 and Ex. PA is the copy of Jamabandi for the year 1996-97 pertaining to Khasra Nos. 871 and 886. Learned Trial Court held that perusal of the statement of Local Commissioner (PW-5) and his report Ex.-D4 also Musabi Ex.-PX demonstrated that there was a difference of two Karukans, which had not been added in the report of Local Commissioner and as two Karukans were less in the report Ex.-D4, therefore, the report did not tally with the Musabi. On these bases, learned Trial Court held that there was some lapse while preparing the demarcation report, hence the Court was not inclined to accept the same as fully correct. In appeal, learned Appellate Court held that as per order dated 18.07.2005 passed by the learned Trial Court, both the learned counsel for the parties had submitted that report of the Local Commissioner was vague and did not state anything specifically. It held that statement of DW-5 demonstrated that demarcation had not been carried out on the spot as per the instructions issued by the Financial Commissioner (Revenue) and it was writ large from the report as well as copy of Musabi that there was a difference of two Karukans, which were not added in the report of Local Commissioner and as there was infirmity in the said report, the same could not be relied upon. 11. Thus, it is evident from the above that there are concurrent findings to the effect that there was a difference of two Karukans, which were not added in the report of the Local Commissioner as compared to Musabi. A perusal of Musabi Ex.-PX and report of the Local Commissioner Ex.-D4 demonstrates that the findings so returned by the learned Courts below are duly borne out from the record of the case. Thus, it cannot be said that there is a mis-reading or mis-appreciation of the said two documents by the learned Courts below. A perusal of Musabi Ex.-PX and report of the Local Commissioner Ex.-D4 demonstrates that the findings so returned by the learned Courts below are duly borne out from the record of the case. Thus, it cannot be said that there is a mis-reading or mis-appreciation of the said two documents by the learned Courts below. Said findings of fact concurrently recorded in favour of the defendants by the learned Courts below, in the light of the same not being contrary to the evidence on record, call for no interference. Therefore, it cannot be said that the judgments and decrees passed by the learned Courts below are a result of mis-reading or mis-interpretation of either Ex.-D4 or Ex.-PA on record. 12. It is pertinent to mention that it is clearly borne out from the order passed by the learned Trial Court on 18.07.2005 that it was submitted by the learned counsel for the parties before the Court that the report of the Local Commissioner was vague and does not state anything specifically and it does not show where the construction allegedly raised by the defendants falls. In this view of the matter also, it is not understood as to how the appellant can now submit that learned Courts below have erred in discarding the said report of the Local Commissioner. 13. During the course of arguments, learned counsel for the appellant could not point out as to which document on record or statement of which witness has been misread or mis-appreciated by the learned Courts below. On the contrary, a perusal of the findings returned by the learned Courts below when compared to the record of the case, demonstrate that the same are duly borne out from the record of the case. Substantial question of law is answered accordingly. Substantial Question of law No. 2: ?2. Whether the learned Courts below are justified in dismissing the suit without waiting for the report of the Local Commissioner, who was appointed by the Court vide its order dated 18.07.2005?? 14. Record of the learned Trial Court demonstrates that on 18.07.2005, the following order was passed: ?At this stage, both the counsels for the parties have submitted that the report of the Local Commissioner is vague and does not state anything specifically. It does not show where the construction allegedly raised by the defendants falls. 14. Record of the learned Trial Court demonstrates that on 18.07.2005, the following order was passed: ?At this stage, both the counsels for the parties have submitted that the report of the Local Commissioner is vague and does not state anything specifically. It does not show where the construction allegedly raised by the defendants falls. Both the counsels for the parties have requested to appoint another L.C. in order to set at rest the controversy between the parties once for all. In view of this, the request of the counsels for the parties is allowed. Both the counsels for the parties have agreed to appoint the S.D.M., Sadar, District Bilaspur as Local Commissioner. Accordingly, the S.D.M., Sadar, District Bilaspur is appointed as such. He is directed to visit the spot and to demarcate the Khasra No. 886 out of the suit land and fix its boundaries and also to find out whether any construction falls on Khasra No. 886 and by whom the such construction has been raised. His report is called for on or before 20.09.2005. His fee is fixed at Rs.2,000/- to be paid by the plaintiff on the spot. Order be issued accordingly.? However, it is clearly borne out from the subsequent order passed by the Court on 20.09.2005 that S.D.M., Sadar, District Bilaspur did not visit the spot and he had explained the reasons as to why he could not do so. Thereafter, it was agreed by the parties to proceed with the matter without waiting for the report of the Commissioner, who was so appointed by the Court on 18.07.2005. In this view of the matter, the appellant cannot be permitted to submit that the judgments and decrees passed by the learned Courts below, especially the learned Trial Court is bad, as it ought to have waited for the report of the Local Commissioner so appointed on 18.07.2005. Substantial question of law is answered accordingly. 15. In view of the discussions held hereinabove, as there is no merit in this appeal, the same is dismissed, so also pending miscellaneous applications, if any.