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2021 DIGILAW 221 (HP)

Roshan Lal v. Mohan Lal

2021-04-08

RAVI MALIMATH

body2021
JUDGMENT : Ravi Malimath, Judge Aggrieved by the concurrent findings recorded by both the lower Courts in dismissing the defendant’s plea for counter relief, the defendant has filed this appeal. Parties are referred to as per their rank before the trial Court. 2. The plaintiff filed a suit against the defendant, seeking for a decree of mandatory injunction against the defendant, directing him to restore the possession of the suit land in its original position, namely, the course of water leading to the fields of plaintiff, comprised in Khata/Khatauni No.12/25 min, Khasra No.249/178/130/40, measuring 1-7 Bighas of Mauja Chakli, Tehsil & District, Solan etc. 3. On service of notice, the defendant put in appearance and filed the written statement. He raised a counter claim to restrain the plaintiff from causing any kind of obstruction or blockade in the drain shown in the attached map from point PX-1 to PZ-1 from changing the natural flow of drain water in any manner whatsoever etc. On considering the pleadings, the trial Court framed the following issues:- 1. Whether the drainage pipe line of the house of the plaintiff has been damaged by defendant in an illegal manner, as alleged? OPP 2. Whether the plaintiff is entitled for the relief of mandatory injunction, as alleged? OPP 3. Whether the plaintiff has no cause of action to file the suit? OPD 4. Whether the plaintiff is causing blockade of drainage pipe line, as alleged? OPD 5. Whether the defendant is entitled for the relief of decree of injunction by way of counter-claim, as prayed for? OPD 6. Relief. 4. In order to prove its case, the plaintiff examined two witnesses and marked five exhibits. The defendant examined three witnesses and marked five exhibits. Issues No.1, 2, 4 & 5 were held in the negative and issue No.3 was held in favour of the plaintiff. The trial Court dismissed the suit of the plaintiff as well as the counter claim by the defendant. Aggrieved by the same, an appeal was filed by the defendant. The Appellate Court dismissed the appeal. Hence, the present second appeal by the defendant. 5. By the order dated 05.09.2007, the appeal was admitted on the following two substantial questions of law:- 1. Aggrieved by the same, an appeal was filed by the defendant. The Appellate Court dismissed the appeal. Hence, the present second appeal by the defendant. 5. By the order dated 05.09.2007, the appeal was admitted on the following two substantial questions of law:- 1. Whether the judgment of Additional District Judge is perverse, based on misreading of oral and documentary evidence and also pleadings of the parties and drawn a wrong inference from the facts proved on the record more particularly the documents PW1/A, DW1/A to DW3/A as also DW3/B to DW-3/D and D-1? 2. Whether the defendant appellant was entitled to relief of permanent prohibitory injunction in the facts and circumstances of the case and the judgment of District Judge is vitiated being not in accordance with Order 20 Rule 5 and also the judgment of this Hon’ble Court reported in AIR 2001 H.P. Om Parkash vs. State of Himachal Pradesh? 6. The learned counsels appearing on both sides, submit that the substantial question of law is required to be reframed and have addressed arguments on the same. On hearing them, the substantial question of law is reframed as follows:- Whether both the Courts below committed an error in misreading the evidence on record and thereby wrongly dismissed the counter claim of the defendant? 7. Heard learned counsels. 8. The suit of the plaintiff, seeking a mandatory injunction, has been dismissed. There is no appeal filed against it. The consideration in this present appeal is so far as the counter claim filed by the defendant is concerned. The counter claim filed by the defendant reads as follows:- 5 “Counter Claim: 1. That the defendant has his residential house in Moza Chakli adjoining to the house of the plaintiff. The water of the bathroom of the defendant goes through a CI pipe as shown in the attached map from point PX to PX-1, and thereafter form point PX-1 to PZ-1 the water flows in an open drain made of stone in cement masonry. The said drain exists since long and for the last more than 30 years and no body ever objected the drainage of water. The said drain exists since long and for the last more than 30 years and no body ever objected the drainage of water. Now in the month of August-September 2001 the plaintiff put a blockade in the said drain forcibly and illegally by putting a stones and mud in the drain as a result of which the flow of water has been obstructed and the water is scattered and flowing outside the drain and the which seeps into the walls and basement of the existing store room of the defendant and the same is causing damage to store room and the retaining wall. The plaintiff has put the blockade only with the sole motive to cause damage to the retaining wall, storeroom and properties of the defendant intentionally and with malafide intention. The defendant also reported the matter to the police and also made requests but of no effect and is still threatening to keep the blockade till the storeroom of the defendant is not damaged permanently. In case the said blockade is not removed and the plaintiff is not restrained form blocking the flow of water through the drain, in that event the defendant would suffer irreparable loss and injury for which money compensation would not be an adequate relief. 2. That the causes of action has arisen in the month of August-September 2001 when the blockade was put by the plaintiff and the cause of action also arose on each and every day when the defendant requested the plaintiff to remove the blockade and allow the water to flow through natural way and drain and the cause of action also arose when the suit was filed by the plaintiff and obtained injunction by misrepresentation of the facts and hence the cause of action is still continuous. 3. That the valuation of the counter claim is assessed at Rs.130/- upon which a court fee of Rs.13/- has been affixed on the plaint for the relief of decree of prohibitory injunction.” 9. In order to support the case, the defendant examined three witnesses. DW-1 was the defendant. DW-2 one Jeet Ram has adduced evidence that he is aware of the acts of the plaintiff. However, the evidence of DW-2 was not taken into consideration, since he did not belong to the same village. In order to support the case, the defendant examined three witnesses. DW-1 was the defendant. DW-2 one Jeet Ram has adduced evidence that he is aware of the acts of the plaintiff. However, the evidence of DW-2 was not taken into consideration, since he did not belong to the same village. Therefore, in the absence of evidence belonging to the same village, naturally he would not have any knowledge with regard to the violations or otherwise committed by the plaintiff. Therefore, the said witness being a self serving witness, his evidence was discarded by the trial Court. DW-3 Shri R.P. Swami, is said to be a retired Assistant Engineer from the Public Works Department, has submitted a report in terms of Ext.DW-3/B. He has supported the case of the defendant. Therefore, it is pleaded that the evidence of DW-1 and DW-3 is sufficient. Ext.D-1 is the site plan, which was relied upon by the defendant. The Courts below came to the conclusion that the evidence of DW-3 cannot be accepted. That he is not an independent witness. That no independent witness has been examined on behalf of the defendant to prove his case. The Appellate Court affirmed the findings recorded by the trial Court. On considering the reasons assigned by both the Courts below, I do not find any error committed on facts or on appreciation of evidence that calls for any interference by this Court. The reasons assigned by the trial Court and the Appellate Court are just and appropriate and do not call for any interference. 10. The evidence in support of the case of the defendant is his self serving evidence as DW-1. DW-2 is a person from another village who has come here to help the defendant. He is an interested witness. He is not a resident of the village. Therefore, he would not have any capacity to speak about the whereabouts or otherwise of the construction of the plaintiff or that of the defendant. So far as DW-3 is concerned, he is said to be a retired Assistant Engineer from PWD. His report has been marked as Ext.DW-3/B, which supports the case of the defendant. He too is an interested witness. So far as DW-3 is concerned, he is said to be a retired Assistant Engineer from PWD. His report has been marked as Ext.DW-3/B, which supports the case of the defendant. He too is an interested witness. On the other hand, if one were to consider the case of the defendant, it is his specific case in his written statement and the counter claim that in view of the actions of the plaintiff, he has submitted a written complaint to the police station against the plaintiff for causing obstruction to the drain. That the police had registered an FIR against the plaintiff and investigation was taken up. This statement has remained only in the written statement. There is no document produced by him to indicate that an FIR was lodged by him against the plaintiff. Secondly, it is also alleged by the defendant, in his written statement, that he had given a written complaint against the plaintiff to the Panchayat. That the Panchayat had come and visited the spot and found that the plaintiff is the one who was blocking the drainage but here also there is no copy of the complaint given to the Panchayat. This has also remained only as a statement made by the defendant in his written statement. Therefore, it can be clearly stated that the statements made by the defendant in his written statement have not been supported by any corroborative evidence. In fact whenever there is any building violation or any matter pertaining to any structure, it is the responsibility of the Panchayat to ensure adherence to law. Therefore, it was the Panchayat to take any appropriate action in the matter. Rather than going to the Panchayat, it would appear that defendant has set up a false claim against the plaintiff. The evidence led in by the defendant is only his self serving evidence as DW-1 and that from his neighbouring villager DW-2. The evidence of DW-3 will not come to the aid of the defendant in view of the fact the same has not been corroborated by any evidence or material by any independent witness. 11. In order to prove his case, the defendant was expected to lead evidence of the official witnesses of those belonging to the Panchayat or other authorities, who were concerned whether the plea of the defendant is justified or not. 11. In order to prove his case, the defendant was expected to lead evidence of the official witnesses of those belonging to the Panchayat or other authorities, who were concerned whether the plea of the defendant is justified or not. In the absence of leading any evidence in support of the pleadings of the defendant, I do not find any error committed by the Courts below in dismissing the counter claim. The evidence led in on behalf of the defendant as DW-1 to DW-3, is not sufficient to prove his case. They are self serving evidences. The evidences run contrary to the pleadings of the defendant. Neither the copy of the complaint to the police nor the copy of the complaint to the Panchayat has been produced. It would appear that in order to overcome the statements made in the written statement, the self serving evidence of interested persons, have been led. Therefore, such an evidence will not come to the aid of the defendant. 12. For all these reasons, I do not find any error committed by both the Courts below. Consequently, the substantial question of law is answered by holding that both the Courts below were justified in considering the evidence led in by the defendant and have rightly come to the conclusion that the evidence so led in is not sufficient to prove the counter claim set up by the appellant-defendant. The substantial question of law is accordingly answered. Consequently, the appeal is dismissed. No costs.