Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1305 (HP)

Suman Kumar v. Rattan Lal

2019-09-05

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellants have challenged the judgment and decree passed by the Court of learned Civil Judge (Jr. Divn.), Court No. 2, Ghumarwin, District Bilaspur, H.P. in Civil Suit No. 160/1 of 2006/14, vide which a civil suit filed by the present respondent for permanent prohibitory injunction as also for mandatory injunction stood decreed and the judgment and decree dated 29.07.2017, passed by learned Appellate Court in Civil Appeal No. 17-13 of 2017, whereby the appeal filed by the present appellants against the judgment and decree passed by learned Trial Court was dismissed. 2. Brief facts necessary for the adjudication of the present appeal are that a suit for permanent prohibitory injunction and in the alternative for possession, was filed by the present respondent/plaintiff against the appellants/defendants on the ground that plaintiff, alongwith other co-sharers, was recorded as co-owners in joint possession of the suit land comprised in Khata/Khatoni No. 270/349, Khasra number 328, measuring 0-18 bigha and Khata/Khatoni number 301/353, Khasra number 327, measuring 0-02 bigha, situated in Village Bhapral, Pargna Ajmerpur, Sub Tehsil Bharari, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the 'suit land'). According to the plaintiff, defendants who were strangers to the suit land had started raising construction, initially in their own land which was contiguous to the land of the plaintiff, however, thereafter defendants dismantled the beed which was the boundary between the land of the plaintiff and defendants and opened one door towards the courtyard of the plaintiff and also encroached upon the land of the plaintiff by raising construction upon the same. On these pleadings, the suit was filed praying for a decree of permanent prohibitory/mandatory injunction and in the alternative for possession. 3. Defendants contested the case of the plaintiff and took the stand that neither they had encroached over the suit land nor they had demolished any beed on the spot nor caused any interference over the suit land which belonged to the plaintiff. 4. On the basis of pleadings of the parties, learned trial Court framed the following Issues:- 1. Whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed for? OPP. 2. Whether the plaintiff is entitled for decree of mandatory injunction, as alleged? ...OPP 3. Whether the plaintiff is entitled for decree of possession, as alleged? ..OPP 4. 4. On the basis of pleadings of the parties, learned trial Court framed the following Issues:- 1. Whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed for? OPP. 2. Whether the plaintiff is entitled for decree of mandatory injunction, as alleged? ...OPP 3. Whether the plaintiff is entitled for decree of possession, as alleged? ..OPP 4. Whether the present suit is not maintainable in the present form, as alleged? ..OPD 5. Whether the plaintiff has no locus standi to file the present, as alleged? ..OPD 6. Whether the plaintiff has no cause of action to file the present, as alleged? ..OPD 7. Whether the plaintiff is estopped to file the present suit by his own acts, conduct and deed, as alleged? 8. Whether the present suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? ..OPD 9. Whether the plaintiff is estopped to file the suit by the doctrine of acquiescence delay and latches, as alleged? ..OPD 10. Whether the present suit is not properly valued for the purpose of Court fee and jurisdiction, as alleged? OPD 11. Relief. 5. The Issues so framed were answered as under on the basis of the evidence which was led by the respective parties in support of their respective contentions:- Issue No. 1 : Yes. Issue No. 2 : Yes. Issue No. 3 : Yes. Issue No. 4 : No. Issue No. 5 : No. Issue No. 6 : No. Issue No. 7 : No. Issue No. 8 : No. Issue No. 9 : No. Issue No. 10 : No. Relief : Suit of the plaintiff is decreed as per operative part of judgment. 6. Learned Trial Court decreed the suit in the following terms:- "This suit coming on this 12th day of April, 2017 for final disposal before me Upasna Sharma, Civil Judge (Junior Division), Court No. 2, Ghumarwin, Distt. Bilaspur, H.P. in the presence of Sh. S.K. Sharma, Adv. Ld. Counsel for the plaintiff, Sh. B.S. Dhiman, Adv. Ld. Counsel for the defendants. Learned Trial Court decreed the suit in the following terms:- "This suit coming on this 12th day of April, 2017 for final disposal before me Upasna Sharma, Civil Judge (Junior Division), Court No. 2, Ghumarwin, Distt. Bilaspur, H.P. in the presence of Sh. S.K. Sharma, Adv. Ld. Counsel for the plaintiff, Sh. B.S. Dhiman, Adv. Ld. Counsel for the defendants. It is ordered that the suit of the plaintiff is decreed to the effect that defendants are restrained by way of permanent prohibitory injunction from causing interference over the suit land qua the land in khasra No. 328 land measuring 0-18 bighas and Khata/Khatoni No. 270/349, khasra No. 328 measuring 0-18 bighas and khata/khatoni No. 301/353 khasra No. 327, measuring 0-02 bigha situated in Village Bhapral, Pargna Ajmerpur, Sub Tehsil Bharari, Tehsil Ghumarwin, Distt. Bilaspur, H.P. and defendants are further directed to hand over the vacant possession of khasra No. 327/1 measuring 0-1 biswa shown in tatima dated 16.10.2016 which has been prepared as per the report conducted by local commissioner on said date to the plaintiff within one month from the date of order. No order as to cost is being made." 7. It was held by learned Trial Court that to demonstrate that defendants were interfering over the suit land, plaintiff entered the witness box and deposed to said effect. Learned Trial Court further held that there was on record demarcation report of the Local Commissioner which proved that Suman Kumar etc. i.e. the appellants herein, had carried out construction over khasra No. 327/1, which belonged to the plaintiff, which clearly demonstrated that interference was caused over the suit land by the defendants and hence, the plaintiff was entitled to a decree of permanent prohibitory injunction and also for a decree of mandatory injunction as encroachment stood established upon the suit land by the defendants. 8. Feeling aggrieved, defendants filed an appeal before the learned Appellate Court. 9. Learned Appellate Court while upholding the findings returned by learned Trial Court, dismissed the appeal. Like learned Trial Court, learned Appellate Court also returned the findings that it was an admitted case even of the defendants that they have no right over the suit land, however, their stand was that the construction was carried out by them over their own land and there was no encroachment by them over the land of the plaintiff. Like learned Trial Court, learned Appellate Court also returned the findings that it was an admitted case even of the defendants that they have no right over the suit land, however, their stand was that the construction was carried out by them over their own land and there was no encroachment by them over the land of the plaintiff. Learned Appellate Court further held that in order to ascertain the veracity of the rival claims of the parties, learned Trial Court had appointed a Local Commissioner to demarcate the suit land so as to elucidate the position on the spot and report dated 16.10.2016 of the Local Commissioner, i.e. Tehsildar Ghumarwin, depicted that the land of the plaintiff stood encroached to the extent of 0-1 biswa by the defendants. It further held that suit stood decreed by learned Trial Court on the basis of said report of the Local Commissioner. Learned Appellate Court took into consideration the grounds raised before it with regard to the appointment of Local Commissioner by the trial Court and held that the appellants could not be permitted to raise any objection with regard to appointment of Local Commissioner by learned Trial Court because it was borne out from the record that when the earlier demarcation report of the land in dispute was rejected by the learned trial Court and a fresh Commission for demarcation of the land was issued by the learned Trial Court vide order dated 11.05.2016, said order was passed in the presence of learned Counsel for the parties, including the defendants and the appointment of the Commissioner was not objected to on behalf of the defendants who also associated themselves in the process of demarcation which was subsequently carried out on 16.10.2016, i.e. almost 5 months after the order of demarcation was passed by the learned Trial Court. On these bases, learned Appellate Court held that, that being the case, the defendants could not be allowed to object to the fresh demarcation report simply because the same was not in their favour. Learned Appellate Court also held that said plea of the appellants merited rejection, more so, because no illegality was found in the process of demarcation that was followed by the Local Commissioner. Learned Appellate Court also held that said plea of the appellants merited rejection, more so, because no illegality was found in the process of demarcation that was followed by the Local Commissioner. Learned Appellate Court also took into consideration the fact that the objections which were filed against the demarcation report by the parties were also dealt with and dismissed by learned Trial Court vide separate order on 12.04.2019. Learned Appellate Court also relied upon the judgment of this Court in Kishori Lal vs. Pingla Devi, (1999) 1 ShimLC 221 , wherein it has been held by this Court that report of the Local Commissioner and the evidence recorded by him, shall be evidence in the suit, as also mandated by Order 26, Rule 10 of the Code. On these bases, learned Appellate Court concurred with the findings returned by learned Trial Court and dismissed the appeal. 10. Feeling aggrieved, the appellants have approached this Court by way of regular second appeal. 11. I have heard learned Counsel for the parties and gone through the judgments and decrees passed by learned Courts below. 12. There are concurrent findings returned in favour of the plaintiff and against the defendants by both the learned Courts below that the suit land was being interfered with by the defendants and they had also encroached upon the same. These concurrent findings are pure and simple findings of fact. 13. Learned Counsel for the appellants has argued before this Court that because the appointment of Local Commissioner by the learned Trial Court vide order dated 11.05.2016 was a unilateral act on the part of the learned Trial Court and as it was not passed on any application filed in this regard for appointment of the Local Commissioner by either of the parties, the same renders the judgments and decrees passed by learned Trial Court as also learned Appellate Court as non est because said act of learned Trial Court amounts to creating evidence in favour of the plaintiff. 14. In my considered view, there is no force in the said contention of learned Counsel for the appellants. 14. In my considered view, there is no force in the said contention of learned Counsel for the appellants. Order 26, Rule 9 of the Code of Civil Procedure inter alia envisages that in any suit, in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. 15. A reading of Rule 9 of Order 26 of the Code clearly demonstrates that for issuance of a commission under the provisions of Order 26, Rule 9 of the Code, the Court is not subservient to any application to be filed by either of the parties before the Court. It is the judicial conscious of the Court which has to be satisfied as to whether the appointment of a Commission is necessary for the purpose of elucidating the matter in issue pending between the parties or not. If the Court is of the view that same is necessary for the purpose mentioned in Rule 9 of Order 26 of the Code, then Court can order such Commission and for the said purpose, no application by either of the parties is required. 16. The issue as to whether appointment of Commission will result in creating evidence in favour of a party has to be primarily decided by the Court of law, when either party approaches it for appointment of Commission. On the basis of basic principle of law that he who alleges has to prove, the Court has to cautiously take a decision with regard to the prayer for appointment of Commission keeping in view the fact whether allowing of such application will result in creating of evidence in favour of a party or it will assist in elucidating the matter between the parties. 17. I again reiterate that as far as factual matrix involved in the present appeal is concerned, there are concurrent findings returned in favour of the plaintiff and against the defendants that the defendants have interfered with the suit land and further also encroached upon the suit land. 18. 17. I again reiterate that as far as factual matrix involved in the present appeal is concerned, there are concurrent findings returned in favour of the plaintiff and against the defendants that the defendants have interfered with the suit land and further also encroached upon the suit land. 18. During the course of arguments, learned Counsel for the appellants could not demonstrate that these concurrent findings of fact recorded in favour of the plaintiff and against the defendants were perverse and not borne out from the record of the case. As per him, the infirmity in the judgments and decrees passed by learned Courts below was that the same were passed upon the report of the Local Commissioner, which commission was directed by the learned Trial Court suo motu. I have already dealt with the said issue raised by learned Counsel for the appellants in detail in above part of the judgment. As, in my considered view, there is no substantial question of law involved in the present appeal nor there is any perversity in the findings returned in the judgments and decrees passed by learned Courts below, present appeal being devoid of merit is dismissed. No order as to costs. JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellants have challenged the judgment and decree passed by the Court of learned Civil Judge (Jr. Divn.), Court No. 2, Ghumarwin, District Bilaspur, H.P. in Civil Suit No. 160/1 of 2006/14, vide which a civil suit filed by the present respondent for permanent prohibitory injunction as also for mandatory injunction stood decreed and the judgment and decree dated 29.07.2017, passed by learned Appellate Court in Civil Appeal No. 17-13 of 2017, whereby the appeal filed by the present appellants against the judgment and decree passed by learned Trial Court was dismissed. 2. Brief facts necessary for the adjudication of the present appeal are that a suit for permanent prohibitory injunction and in the alternative for possession, was filed by the present respondent/plaintiff against the appellants/defendants on the ground that plaintiff, alongwith other co-sharers, was recorded as co-owners in joint possession of the suit land comprised in Khata/Khatoni No. 270/349, Khasra number 328, measuring 0-18 bigha and Khata/Khatoni number 301/353, Khasra number 327, measuring 0-02 bigha, situated in Village Bhapral, Pargna Ajmerpur, Sub Tehsil Bharari, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the 'suit land'). According to the plaintiff, defendants who were strangers to the suit land had started raising construction, initially in their own land which was contiguous to the land of the plaintiff, however, thereafter defendants dismantled the beed which was the boundary between the land of the plaintiff and defendants and opened one door towards the courtyard of the plaintiff and also encroached upon the land of the plaintiff by raising construction upon the same. On these pleadings, the suit was filed praying for a decree of permanent prohibitory/mandatory injunction and in the alternative for possession. 3. Defendants contested the case of the plaintiff and took the stand that neither they had encroached over the suit land nor they had demolished any beed on the spot nor caused any interference over the suit land which belonged to the plaintiff. 4. On the basis of pleadings of the parties, learned trial Court framed the following Issues:- 1. Whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed for? OPP. 2. Whether the plaintiff is entitled for decree of mandatory injunction, as alleged? ...OPP 3. Whether the plaintiff is entitled for decree of possession, as alleged? ..OPP 4. Whether the present suit is not maintainable in the present form, as alleged? ..OPD 5. Whether the plaintiff has no locus standi to file the present, as alleged? ..OPD 6. Whether the plaintiff has no cause of action to file the present, as alleged? ..OPD 7. Whether the plaintiff is estopped to file the present suit by his own acts, conduct and deed, as alleged? 8. Whether the present suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? ..OPD 9. Whether the plaintiff is estopped to file the suit by the doctrine of acquiescence delay and latches, as alleged? ..OPD 10. Whether the present suit is not properly valued for the purpose of Court fee and jurisdiction, as alleged? OPD 11. Relief. 5. The Issues so framed were answered as under on the basis of the evidence which was led by the respective parties in support of their respective contentions:- Issue No. 1 : Yes. Issue No. 2 : Yes. Issue No. 3 : Yes. OPD 11. Relief. 5. The Issues so framed were answered as under on the basis of the evidence which was led by the respective parties in support of their respective contentions:- Issue No. 1 : Yes. Issue No. 2 : Yes. Issue No. 3 : Yes. Issue No. 4 : No. Issue No. 5 : No. Issue No. 6 : No. Issue No. 7 : No. Issue No. 8 : No. Issue No. 9 : No. Issue No. 10 : No. Relief : Suit of the plaintiff is decreed as per operative part of judgment. 6. Learned Trial Court decreed the suit in the following terms:- "This suit coming on this 12th day of April, 2017 for final disposal before me Upasna Sharma, Civil Judge (Junior Division), Court No. 2, Ghumarwin, Distt. Bilaspur, H.P. in the presence of Sh. S.K. Sharma, Adv. Ld. Counsel for the plaintiff, Sh. B.S. Dhiman, Adv. Ld. Counsel for the defendants. It is ordered that the suit of the plaintiff is decreed to the effect that defendants are restrained by way of permanent prohibitory injunction from causing interference over the suit land qua the land in khasra No. 328 land measuring 0-18 bighas and Khata/Khatoni No. 270/349, khasra No. 328 measuring 0-18 bighas and khata/khatoni No. 301/353 khasra No. 327, measuring 0-02 bigha situated in Village Bhapral, Pargna Ajmerpur, Sub Tehsil Bharari, Tehsil Ghumarwin, Distt. Bilaspur, H.P. and defendants are further directed to hand over the vacant possession of khasra No. 327/1 measuring 0-1 biswa shown in tatima dated 16.10.2016 which has been prepared as per the report conducted by local commissioner on said date to the plaintiff within one month from the date of order. No order as to cost is being made." 7. It was held by learned Trial Court that to demonstrate that defendants were interfering over the suit land, plaintiff entered the witness box and deposed to said effect. Learned Trial Court further held that there was on record demarcation report of the Local Commissioner which proved that Suman Kumar etc. No order as to cost is being made." 7. It was held by learned Trial Court that to demonstrate that defendants were interfering over the suit land, plaintiff entered the witness box and deposed to said effect. Learned Trial Court further held that there was on record demarcation report of the Local Commissioner which proved that Suman Kumar etc. i.e. the appellants herein, had carried out construction over khasra No. 327/1, which belonged to the plaintiff, which clearly demonstrated that interference was caused over the suit land by the defendants and hence, the plaintiff was entitled to a decree of permanent prohibitory injunction and also for a decree of mandatory injunction as encroachment stood established upon the suit land by the defendants. 8. Feeling aggrieved, defendants filed an appeal before the learned Appellate Court. 9. Learned Appellate Court while upholding the findings returned by learned Trial Court, dismissed the appeal. Like learned Trial Court, learned Appellate Court also returned the findings that it was an admitted case even of the defendants that they have no right over the suit land, however, their stand was that the construction was carried out by them over their own land and there was no encroachment by them over the land of the plaintiff. Learned Appellate Court further held that in order to ascertain the veracity of the rival claims of the parties, learned Trial Court had appointed a Local Commissioner to demarcate the suit land so as to elucidate the position on the spot and report dated 16.10.2016 of the Local Commissioner, i.e. Tehsildar Ghumarwin, depicted that the land of the plaintiff stood encroached to the extent of 0-1 biswa by the defendants. It further held that suit stood decreed by learned Trial Court on the basis of said report of the Local Commissioner. It further held that suit stood decreed by learned Trial Court on the basis of said report of the Local Commissioner. Learned Appellate Court took into consideration the grounds raised before it with regard to the appointment of Local Commissioner by the trial Court and held that the appellants could not be permitted to raise any objection with regard to appointment of Local Commissioner by learned Trial Court because it was borne out from the record that when the earlier demarcation report of the land in dispute was rejected by the learned trial Court and a fresh Commission for demarcation of the land was issued by the learned Trial Court vide order dated 11.05.2016, said order was passed in the presence of learned Counsel for the parties, including the defendants and the appointment of the Commissioner was not objected to on behalf of the defendants who also associated themselves in the process of demarcation which was subsequently carried out on 16.10.2016, i.e. almost 5 months after the order of demarcation was passed by the learned Trial Court. On these bases, learned Appellate Court held that, that being the case, the defendants could not be allowed to object to the fresh demarcation report simply because the same was not in their favour. Learned Appellate Court also held that said plea of the appellants merited rejection, more so, because no illegality was found in the process of demarcation that was followed by the Local Commissioner. Learned Appellate Court also took into consideration the fact that the objections which were filed against the demarcation report by the parties were also dealt with and dismissed by learned Trial Court vide separate order on 12.04.2019. Learned Appellate Court also relied upon the judgment of this Court in Kishori Lal vs. Pingla Devi, (1999) 1 ShimLC 221 , wherein it has been held by this Court that report of the Local Commissioner and the evidence recorded by him, shall be evidence in the suit, as also mandated by Order 26, Rule 10 of the Code. On these bases, learned Appellate Court concurred with the findings returned by learned Trial Court and dismissed the appeal. 10. Feeling aggrieved, the appellants have approached this Court by way of regular second appeal. 11. I have heard learned Counsel for the parties and gone through the judgments and decrees passed by learned Courts below. 12. On these bases, learned Appellate Court concurred with the findings returned by learned Trial Court and dismissed the appeal. 10. Feeling aggrieved, the appellants have approached this Court by way of regular second appeal. 11. I have heard learned Counsel for the parties and gone through the judgments and decrees passed by learned Courts below. 12. There are concurrent findings returned in favour of the plaintiff and against the defendants by both the learned Courts below that the suit land was being interfered with by the defendants and they had also encroached upon the same. These concurrent findings are pure and simple findings of fact. 13. Learned Counsel for the appellants has argued before this Court that because the appointment of Local Commissioner by the learned Trial Court vide order dated 11.05.2016 was a unilateral act on the part of the learned Trial Court and as it was not passed on any application filed in this regard for appointment of the Local Commissioner by either of the parties, the same renders the judgments and decrees passed by learned Trial Court as also learned Appellate Court as non est because said act of learned Trial Court amounts to creating evidence in favour of the plaintiff. 14. In my considered view, there is no force in the said contention of learned Counsel for the appellants. Order 26, Rule 9 of the Code of Civil Procedure inter alia envisages that in any suit, in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. 15. A reading of Rule 9 of Order 26 of the Code clearly demonstrates that for issuance of a commission under the provisions of Order 26, Rule 9 of the Code, the Court is not subservient to any application to be filed by either of the parties before the Court. It is the judicial conscious of the Court which has to be satisfied as to whether the appointment of a Commission is necessary for the purpose of elucidating the matter in issue pending between the parties or not. It is the judicial conscious of the Court which has to be satisfied as to whether the appointment of a Commission is necessary for the purpose of elucidating the matter in issue pending between the parties or not. If the Court is of the view that same is necessary for the purpose mentioned in Rule 9 of Order 26 of the Code, then Court can order such Commission and for the said purpose, no application by either of the parties is required. 16. The issue as to whether appointment of Commission will result in creating evidence in favour of a party has to be primarily decided by the Court of law, when either party approaches it for appointment of Commission. On the basis of basic principle of law that he who alleges has to prove, the Court has to cautiously take a decision with regard to the prayer for appointment of Commission keeping in view the fact whether allowing of such application will result in creating of evidence in favour of a party or it will assist in elucidating the matter between the parties. 17. I again reiterate that as far as factual matrix involved in the present appeal is concerned, there are concurrent findings returned in favour of the plaintiff and against the defendants that the defendants have interfered with the suit land and further also encroached upon the suit land. 18. During the course of arguments, learned Counsel for the appellants could not demonstrate that these concurrent findings of fact recorded in favour of the plaintiff and against the defendants were perverse and not borne out from the record of the case. As per him, the infirmity in the judgments and decrees passed by learned Courts below was that the same were passed upon the report of the Local Commissioner, which commission was directed by the learned Trial Court suo motu. I have already dealt with the said issue raised by learned Counsel for the appellants in detail in above part of the judgment. As, in my considered view, there is no substantial question of law involved in the present appeal nor there is any perversity in the findings returned in the judgments and decrees passed by learned Courts below, present appeal being devoid of merit is dismissed. No order as to costs.