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2022 DIGILAW 587 (HP)

Chet Ram S/o Sh. Man Sukh v. State Of H. P.

2022-09-26

SATYEN VAIDYA

body2022
JUDGMENT : By way of second appeal, appellant has assailed judgment and decree dated 07.09.2009 passed by learned Additional District Judge, Fast Track Kullu, H.P. in Civil Appeal No. 16 of 2009 whereby the judgment and decree dated 26.12.2008 passed by learned Civil Judge (Sr. Divn.), Kullu, H.P. in Civil Suit No. 08 of 2008 was affirmed. 2. Appellant was the plaintiff and respondents were defendants before the learned trial Court. The parties hereinafter shall be referred to by the status which they held before the learned trial Court. 3. Brief facts necessary for adjudication of appeal are that plaintiff claimed himself alongwith his brothers to be owner in possession of Ghasni bearing Shumar No. (old) 12 and (new) 7 measuring 14 bighas situated at Phati Pekhari Kothi Nohanda, Tehsil Banjar, District Kullu, H.P. (hereinafter referred to as the ‘suit land’). It was alleged that defendant No.2 i.e. Divisional Forest Officer, Wild Life Division Banjar had started digging the suit land since 21.01.2008 with ulterior purposes to grab the same. As per plaintiff, defendant No.2 intended to raise a permanent structure over a portion of suit land. Accordingly, a prayer was made to restrain the defendants from carrying out any sort of construction over the suit land by digging the same or causing any kind of interference. 4. The suit was contested on behalf of the defendants. Preliminary objections as to suit being bad for want of notice under Section 80 CPC, maintainability, estoppel and valuation etc. were raised. On merits, it was submitted that the department of Forest was constructing a Guard Hut on the land belonging to the State Government. Interference in the suit land was specifically denied. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues: 1. Whether the defendants started digging the suit Ghasni with intention to raise construction over the same, if so, its effect?OPP 2. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP 3. Whether land in question belongs to the State of H.P. and in possession of Forest Department, if so, its effect? OPP 4. Whether the defendants were raising the Guard huts on the land belonging to the Sate of H.P., as alleged? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. OPP 3. Whether land in question belongs to the State of H.P. and in possession of Forest Department, if so, its effect? OPP 4. Whether the defendants were raising the Guard huts on the land belonging to the Sate of H.P., as alleged? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 8. Whether the plaintiff has got no cause of action? OPD 9. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 10. Relief. Learned trial Court decided all the issues in negative and dismissed the suit of the plaintiff. 6. Plaintiff assailed the judgment and decree passed by learned trial Court in first appeal, but again remained unsuccessful. Hence, the present appeal. 7. Appeal was admitted on 22.04.2010 on the following substantial question of law: 1. Whether the findings of the Court below are a result of complete misreading, misinterpretation of the evidence and material on record and against the settled position of law? 8. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 9. Learned trial Court upheld the contention of plaintiff that he alongwith his brothers were the co-owners in possession of the suit land. However, the relief was denied to the plaintiff on the ground that he had failed to prove any interference in the suit land by the defendants. Such findings were rendered by the learned trial Court on appreciation of oral and documentary evidence on record. Learned trial Court found that there was no identification as to the boundaries of suit land which was a large chunk of land measuring 14 bighas. It was also noticed that the plaintiff while appearing as PW-1 had also submitted that no hut had been raised on the suit land. To similar effect was the statement of PW-3, who had also admitted that the defendants had not raised any hut on the suit land. PW-3 was the Revenue Officer. 10. Learned lower Appellate Court re-appreciated the evidence on record and concurred with the findings of fact recorded by the learned trial Court. 11. The suit was filed on 5.2.2008. To similar effect was the statement of PW-3, who had also admitted that the defendants had not raised any hut on the suit land. PW-3 was the Revenue Officer. 10. Learned lower Appellate Court re-appreciated the evidence on record and concurred with the findings of fact recorded by the learned trial Court. 11. The suit was filed on 5.2.2008. As per the allegations in the plaint, defendant No.2 had started digging the suit land since 21.01.2008 with a view to raise permanent structure on it. The construction work was stated to be continuing till 02.02.2008. In his cross-examination, the plaintiff denied the suggestion that the Forest Department was raising construction on its own land. He asserted that the construction was being raised in the suit land. Simultaneously, he admitted that no shed had been constructed on the suit land. Noticeably, the statement of plaintiff was recorded on 11.9.2008. PW-3 Sohan Lal was examined by the plaintiff. He was the Field Kanungo. In the cross-examination this witness also admitted that Forest Department had not constructed any structure on suit land. This witness was examined on 03.11.2008. 12. The plaintiff’s witnesses were examined after about six months from the date of institution of suit. PW-1 and PW-3 both admitted in their respective cross-examinations that no hut of Forest Department had been constructed on the suit land. Plaintiff had also not made any effort to get the boundaries of the suit land ascertained so as to prove that there was any intrusion in the suit land by the defendants. The onus to prove issues Nos. 1 and 2 was on plaintiff, but he failed to discharge the burden. 13. The findings of fact recorded by both the learned Courts below are based on the evidence on record. Such findings cannot be said to be perverse or against the material on record. For claim of injunction, plaintiff had to prove the existence of right and its infringement by defendants. 14. As far as the ownership and possession of suit land was concerned, plaintiff had proved the same, but the other necessary ingredient was not proved. The interference or encroachment on the suit land by defendants could not be proved. In such view of the matter, substantial question of law as framed in the appeal is answered in negative. 15. In view of the above discussion, the appeal fails and the same is accordingly dismissed. The interference or encroachment on the suit land by defendants could not be proved. In such view of the matter, substantial question of law as framed in the appeal is answered in negative. 15. In view of the above discussion, the appeal fails and the same is accordingly dismissed. Judgments and decrees passed by the learned Courts below are affirmed. 16. Appeal stands disposed of in the aforesaid terms, so also the pending application(s) if any.