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2019 DIGILAW 301 (JK)

Dina Nath v. Puran Chand

2019-05-28

SANJEEV KUMAR

body2019
JUDGMENT : SANJEEV KUMAR, J. 1. This Civil Second Appeal is directed against the judgment and decree dated 15.03.2019 passed by the Principal District Judge, Udhampur (‘first appellate court’ for short) in Civil 1st Appeal (File No. 12/appeal) whereby the judgment and decree dated 31.12.2014 passed by the Court of Sub judge (Special Mobile Magistrate), Udhampur (hereinafter referred to as trial court) has been reversed and the decree for perpetual injunction has been passed in favour of the respondent and against the appellants. Factual Matrix: 2. The respondent (who shall be hereinafter referred to as plaintiff for convenience) filed a suit for perpetual injunction restraining the appellants (who shall be hereinafter referred to as defendants for convenience) from causing any interference, obstruction or raising any sought of construction over the open space adjoining to and in front of the plaintiff's two shops built over Kh. No. 8 situated at village Sangoor, Tehsil Udhampur. The decree for mandatory injunction directing the defendants to remove the construction material dumped over the suit land in front of plaintiff's two shops was also prayed for. The case set up by the plaintiff in the plaint is that by virtue of registered sale-deed dated 27.11.1999, he has purchased two marlas of land out of Khasra No. 8 situated at village Sangoor, Udhampur, upon which he constructed two shops seven years back. The aforesaid shops open towards the public road, commonly known as MES Filtration Plant Road existing on the southern side of the said shops. It is claimed that shutters of both the shops open towards the said road. It is pleaded that one of the aforesaid two shops has double shutter and one of its shutters opens towards public lane, known as, Jawahar Nagar Road existing on the western side of the plaintiff's shops. It is further pleaded that about 1½ months before the institution of the suit, the defendants started digging foundation on their land for raising some construction and for that purpose during the late hours on the night of 03.10.2006, they uploaded trucks of construction material and dumped the same quite in front of the shutters of the plaintiff's aforesaid two shops and thus, caused interference and obstruction in the plaintiff's right of user and enjoyment of not only said open space forming part of the road, but, also of his two shops. The plaintiff submits that he immediately raised objection and requested the defendants to lift the construction material from the land and remove the obstruction, but, the defendants refused to do the needful and openly threatened that not only they would stock the material over the suit land, but, they will also raise construction as the open space existing towards the southern side of the plaintiff's shops is owned by the defendants. Having failed to persuade the defendants, the plaintiff claims that he was left with no option but to file the suit seeking decree of perpetual and mandatory injunction against the defendants. 3. The suit was resisted by the defendants. In the written statement filed by the defendants, the stand taken is that, though, it is true that the plaintiff has purchased two marlas of land out of Khasra No. 8 (Kh.60 old), but, the said land is adjacent to one Kanal of land purchased by the defendant No. 2 and one Shri Paras Ram, father-in-law of the defendant No. 1 out of the same Khasra Number from the same owner. It is stated that the shops have been constructed by the plaintiff on his own land and the same are in existence for the last five years and not seven years as claimed by the plaintiff. The defendants also denied the claim of the plaintiff that the shutters of two shops open towards the public road known by the name of MES Filtration Plant Road. It is stated that taking benefit of absence of defendant No. 1, who at the relevant point of time was on his duty at Reasi, the plaintiff opened shutters of his two shops towards vacant land of the defendants. In a nutshell, the claim put up by the plaintiff with regard to the open land in front of his shops has been vehemently refuted by the defendants. They have claimed the said open space to be the land owned and possessed by them. 4. On the basis of the pleading of the parties, the trial Court struck the following issues:- (i) Whether the plaintiff has constructed two shops over his land measuring 02 Marlas comprising Khasra No. 60 min situated at Sangoor, Tehsil Udhampur about 7 years prior to the institution of the suit? 4. On the basis of the pleading of the parties, the trial Court struck the following issues:- (i) Whether the plaintiff has constructed two shops over his land measuring 02 Marlas comprising Khasra No. 60 min situated at Sangoor, Tehsil Udhampur about 7 years prior to the institution of the suit? OPP (ii) In case issue No. 1 is proved in affirmative whether the plaintiff has opened shutters to his two shops towards the MES Filtration Plant Road? OPP (iii) Issue No. 2 is not proved in affirmative whether the plaintiff without the consent of defendants has illegally opened the shutters to his shops towards the land of the defendants. If so, what is its effect? OPD (iv) Whether the defendants are causing interference and obstruction over the plaintiff's right of user and enjoyment of his shops and the open space of the public road existing quite in front of his two shops by dumping building material and threatening to raise construction over the said open space? OPP (v) Relief. 5. The parties have led their evidence on the issues framed. The plaintiff not only examined himself, but, also examined two more witnesses, namely, Paras Ram and Kuldeep Kumar, in support of his claim set up in the plaint. The defendants in their defence have examined defendant No. 1 Dina Nath and one witness Sham Singh. The trial court, upon appreciation of the evidence, has held issue No. 1 not proved by the plaintiff. The trial Court has returned the finding that the plaintiff has not been able to prove the sale-deed by virtue of which he had purchased two marlas of land nor has he been able to prove the correct boundary description of the land claimed to be owned and purchased by the plaintiff. After recording findings on issue No. 1, the trial Court has opined that other issues shall be deemed to have been decided against the plaintiff as the same were dependant on the findings on the issue No. 1. In short, the trial Court has concluded that the plaintiff has neither proved the ownership and description of the land on which he has raised the construction of his two shops nor has he proved that the shutters of his two shops open towards MES Filtration Plant Road. For these reasons, the trial Court has concluded that the plaintiff has failed to prove his suit. For these reasons, the trial Court has concluded that the plaintiff has failed to prove his suit. In this background, the trial Court has dismissed the suit. Feeling dissatisfied with the judgment and decree of the trial Court, the plaintiff filed an appeal before the first appellate Court. The first appellate Court upon re-appreciation of evidence and after hearing learned counsel appearing for the parties has reversed the judgment and decree passed by the trial Court vide its judgment and decree impugned in this appeal filed by the defendants. 6. The defendants have assailed the judgment and decree of the first appellate Court primarily on the ground that the judgment and decree passed by the first appellate Court suffers from the perversity in as much as the first appellate Court has totally mis-appreciated the real controversy between the parties and misdirected itself into passing the judgment and decree of reversal of the Trial Court judgment and decree. It was for the plaintiff, who had sought a decree of perpetual and prohibitory injunction from the Court, to prove by leading cogent and convincing evidence, the issues onus whereof was on him. It is further stated that issues 1 and 2 were required to be proved by the plaintiff, but, he miserably failed to discharge the burden. The trial Court correctly appreciated the evidence and found the same lacking in so far as issues 1 and 2 are concerned. It is submitted that the first appellate Court, without appreciating the real controversy between the parties, misread the whole evidence and returned the findings contrary to those returned by the trial Court on proper appreciation of the evidence and pleadings of the parties. In the background of the aforesaid averments and the submissions, the appellants have proposed the following substantial questions of law for determination in the second appeal:- (i) Whether the appellate Court can reverse the finding of the trial Court, which is fact finding by assuming the facts without appreciating the pleading and the statement of the parties in disregard to Order 41 Rule 31 CPC? (ii) Whether the findings recorded by the first appellate Court on the basis of the conclusion arrived at are based on misreading of the evidence on record, thus, perverse? (ii) Whether the findings recorded by the first appellate Court on the basis of the conclusion arrived at are based on misreading of the evidence on record, thus, perverse? (iii) Whether the rough sketch prepared by the party is a document within the meaning of Section 3 of the Evidence Act and can be relied when the Akas Tatima annexed with the sale-deed was placed on record indicating the ownership right over the land? (iv) Whether the appellate Court can return the findings by assuming the facts and the issue which were not pleaded or proved by the parties and grant the relief? (v) Whether the relief of easement right can be granted by the court without pleading and providing the factum of such right by the parties? 7. Having heard learned counsel for the appellants and perused the record, I am of the view that no substantial question of law is involved for adjudication in this Civil Second Appeal. The defendants have not been able to make out the case of perversity, which in itself is a substantial questions of law as has been held by the Supreme Court in the case of Municipal Committee, Hoshiarpur vs. Punjab Electricity Board, 2010 (13) SCC 216 . It is equally well settled that the judgment and decree can be interfered with in the civil second appeal if the same is based on the perverse findings recorded by the courts below. The findings would be perverse, if the same are based on no evidence or have been arrived at on the basis of inadmissible evidences or by ignoring from consideration the relevant admissible evidences. 8. I have scanned through the pleadings of the parties and the evidence recorded in the trial. I do not find any perversity in the findings of fact recorded by the first appellate Court. From the pleadings of the parties, it is clearly evident that the defendants never disputed the title of the plaintiff over two marlas of land falling in Khasra No. 8 over which the plaintiff has raised the construction of his shops. It is in view of this admission, there was absolutely no requirement to prove the sale-deed or site plan appended thereto. Failure on the part of the plaintiff, if any, with regard to proving the sale-deed was not in any way relevant for deciding the suit. It is in view of this admission, there was absolutely no requirement to prove the sale-deed or site plan appended thereto. Failure on the part of the plaintiff, if any, with regard to proving the sale-deed was not in any way relevant for deciding the suit. The dispute between the parties that can be very vividly seen from the pleadings pertains to an open space existing between the land of the plaintiff and defendants. In the suit, the trial Court was called upon to determine as to whether the open space on which the plaintiff has opened the shutters of his two shops is a part of MES Filtration Plant Road or land of the defendants. If the plaintiff has sufficiently proved by leading the evidence that the land on the southern site of the shops is an open space and part of MES Filtration Plan Road, then he is entitled to the decree prayed for. As is held by the first appellate Court, the plaintiff has sufficiently proved by leading his evidence that open space on which he opened the shutters of his shops about 5 to 7 years back is a public lane known by the name of MES Filtration Plant Road, which evidence of the plaintiff has not been sufficiently rebutted by the defendants. I am in agreement with the findings of fact returned by the first appellate Court, which reflect proper appreciation of the issue in controversy. At the cost of repetition, it may be stated that the land owned by the plaintiff and also the land owned by the defendants, which is subject matter of two different sale-deeds is not in dispute. What is in dispute is an open space in between the two lands. The plaintiff claims that it is a public land and over which he opened the shutters of his two shops about 5 years without any objection, obstruction or protest from anybody including the defendants. On the other hand, it is plea of the defendants that the said open space though outside their boundary wall is also a part of the land purchased by them. Both the parties have lead their evidence and it is on the appreciation of the rival evidences, the first appellate Court has returned its findings of facts on the issues raised between the parties. 9. Both the parties have lead their evidence and it is on the appreciation of the rival evidences, the first appellate Court has returned its findings of facts on the issues raised between the parties. 9. Having considered the matter in some depth I have not been able to persuade myself to agree with submissions of learned counsel for the defendants (who are appellants in this appeal) that the findings returned by the first appellate Court are perverse and therefore, the judgment of reversal passed by the First Appellate Court is vitiated. 10. Reliance placed by the learned counsel for the defendants on the judgment of the Supreme Court in the case of State Bank of India and Others vs. S.N. Goyal, AIR 2008 SC 2594 , Hero Vinoth vs. Seshammal, AIR 2006 SC 2234 , Bayanabai Kaware vs. Rajendra, 2017 (8) Supreme 350 and the judgment of Sikkim High Court titled Chewag Dorjee Lama vs. Lerap Dorjee Bhutia and Others, AIR 2006 Sik. 37, is of no help to the defendants for the reasons stated above. This Court is well aware that the perversity itself is substantial question of law, but, to show that the findings returned by the courts below are perverse, it has to be sufficiently demonstrated that the same are either based on no evidence or based on the evidence which is not legally admissible. Even wrong placement of burden of proof, which has resulted in miscarriage of justice also could be a ground for interfering with the concurrent findings of facts. The law laid down in the judgments cited by the learned counsel for the defendants on the aforesaid point is well settled and to which there could be no exception. 11. For the foregoing reasons and discussions made above, I do not find any substantial questions of law involved in this Civil Second Appeal. The same is, accordingly, dismissed along with connected CM's.