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2024 DIGILAW 146 (HP)

Desh Raj v. Mehar Singh

2024-03-04

VIRENDER SINGH

body2024
JUDGMENT : Virender Singh, J. Appellants have filed the present Regular Second Appeal, against the judgment and decree, dated 11th September, 2007, passed by the Court of learned District Judge, Chamba Division, Chamba, H.P. (hereinafter referred to as the ‘First Appellate Court’), in Civil Appeal No. 36 of 2007, titled as Mehar Singh versus Desh Raj and another. 2. Vide judgment and decree, dated 11th September, 2007, the learned First Appellate Court has allowed the first appeal and reversed the judgment and decree, passed by the Court of learned Civil Judge (Senior Division), Dalhousie, District Chamba, H.P. (hereinafter referred to as the ‘trial Court’) in Civil Suit No. 56 of 2003, titled as Mehar Singh versus Desh Raj and another, whereby the learned trial Court has dismissed the suit of the plaintiff. 3. For the sake of convenience, parties to the present lis , are, hereinafter, referred to, in the same manner, in which, they were referred to, by the learned trial Court. 4. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under: 4.1. Plaintiff-Mehar Singh has filed the suit for permanent prohibitory injunction, restraining the defendants from interfering in the suit property, i.e. land comprised in khasra No. 540, khata/khatauni No. 48/53, measuring 0-15 bigha, situated in Mauza Jandrog, Pargana Raipur, Tehsil Bhattiyat, District Chamba, H.P., as well as, the suit for mandatory injunction, directing the defendants to restore the suit property to its original condition, if they succeed in demolishing the two storeyed house of the plaintiff, and in raising the construction, over the suit land. 4.2. In addition to this, the plaintiff has also sought the relief of possession of the suit land, bearing khasra No. 540/1, measuring 0-1-8 bigha, on account of illegal, unauthorized and wrongful construction and possession of the defendants, as shown in the spot map, dated 17th November, 2003. 4.3. The plaintiff has filed the said suit, on the ground, that he is owner in possession of the suit land to the extent of one third share. He has constructed a two storeyed house, over khasra No. 540, in the suit land. According to the plaintiff, since, the plaintiff, mostly stayed in Village Siune, as such, taking the advantage of his absence, the defendants started demolishing the two storeyed house of the plaintiff and raising construction over the suit land. He has constructed a two storeyed house, over khasra No. 540, in the suit land. According to the plaintiff, since, the plaintiff, mostly stayed in Village Siune, as such, taking the advantage of his absence, the defendants started demolishing the two storeyed house of the plaintiff and raising construction over the suit land. This fact was noticed by the plaintiff, when, he visited the spot, on 4th July, 2003. The defendants are stated to be strangers to the suit property and the request of the plaintiff to desist from the illegal activities fell on deaf ears of the defendants. Consequently, the plaintiff served a notice on defendant No. 1, on 5th July, 2003, requesting him to stop the construction work, but, the defendants did not do so. 4.4. It is the further case of the plaintiff that on 14th, 15th and 16th July, 2003, during night time, during the pendency of the suit, the defendants forcibly raised the construction. 4.5. Based on these facts, suit has been filed, before the learned trial Court, for which, according to the plaintiff, cause of action had accrued to him in the first week of July, 2003, when, the defendants started demolishing the two storeyed house of the plaintiff and on 14th, 15th and 16th July, 2003, when, the defendants forcibly continued the construction work and completed the construction, up to the roof of the house. 4.6. On the basis of the above facts, the plaintiff has sought the relief, as prayed in the plaint. 5. When put to notice, the suit has been contested/ resisted by the defendants, by filing written statement, in which, they have taken the preliminary objections that the suit is not maintainable and that the plaintiff has no cause of action to file the present suit. 5.1. On merits, the contents of the plaint have been denied, by pleading that the plaintiff has sold his share in the suit land, as well as, the other land, in Mohal Jandrog, to them, vide sale deed, dated 25th November, 1998, for a valuable consideration. It has been denied that the defendants had started the construction work in the month of July, 2003. It has been denied that the defendants had started the construction work in the month of July, 2003. According to them, in fact, there was a cow shed over the suit land, which was dismantled and new construction was started, which was completed in the year 2002 and the said act has not been objected to, by the plaintiff. The other contents of the plaint have also been denied. 5.2. Elaborating their stand, it has also been pleaded by the defendants that the plaintiff has himself put the defendants in possession of the suit land after sale. The tatima is stated to have got prepared by the plaintiff, in collusion with the revenue officials. 6. Thus, a prayer has been made to dismiss the suit. 7. The plaintiff has filed the replication, denying the preliminary objections, as well as, the contents of the written statement, by virtue of which, the suit has been contested/ resisted. 8. From the pleadings of the parties, the following issues were framed by the learned trial Court, vide order, dated 31st December, 2004: “1. Whether plaintiff is entitled to relief of permanent prohibitory injunction as prayed for ? OPP 2. Whether plaintiff is entitled to relief of mandatory injunction as prayed for ? OPP 3. Whether plaintiff is entitled to relief of possession as prayed for? OPP 4. Whether suit in the present form is not maintainable as alleged? OPD 5. Whether plaintiff has got no cause of action to file the present suit as alleged? OPD 6. Whether plaintiff has no locus standi to sue as alleged? OPD 7. Whether plaintiff has sold his share in the suit land to the defendants as alleged? OPD 8. Relief.” 9. Thereafter, parties to the lis were directed to adduce the evidence. Consequently, both the parties have led oral, as well as, documentary evidence. 10. The learned trial Court, after hearing the learned counsel for the parties, vide judgment and decree, dated 7th November, 2005, decreed the suit of the plaintiff for permanent prohibitory injunction and defendants have been restrained permanently from interfering in the suit land, in any manner. The mandatory injunction has also been issued to the defendants to demolish the structure raised by them, over khasra No. 540/1. The mandatory injunction has also been issued to the defendants to demolish the structure raised by them, over khasra No. 540/1. The suit of the plaintiff has also been decreed for possession of the suit land, by demolishing the structure raised by the defendants, over khasra No. 540/1, situated over the suit land. 11. Against the said judgment and decree, the defendants filed Civil Appeal No. 74 of 2005, which was allowed on 29th December, 2006, whereby the decree, dated 7th November, 2005, passed by the learned trial Court had been set aside and quashed and the matter was remanded back to the learned trial Court. 12. The learned trial Court, thereafter, passed the judgment and decree, dated 7th April, 2007, by virtue of which, the suit of the plaintiff has been dismissed. 13. Aggrieved from the said judgment and decree, the plaintiff has preferred appeal before the learned First Appellate Court, which has been registered as Civil Appeal No. 36 of 2007. 14. By way of the said appeal, the findings of the learned trial Court have been assailed on the ground that the learned trial Court has wrongly held that the plaintiff was not in possession of the suit land, at the time of filing of the suit and that he has been dispossessed during the pendency of the suit. According to the plaintiff, the findings of the learned trial Court, that the possession of the defendants was not forcible, but, they were put into possession by the plaintiff himself, are contrary to the record. 15. The learned trial Court is stated to have wrongly relied upon the photograph, Ex. D-1, which was proved by DW-2, Deeno. Highlighting the deposition of DW-2 Deeno, qua the fact that the doors were found to be fixed in the disputed house one month prior to 29th October, 2005, it is the case of the plaintiff that the construction was raised during the pendency of the suit. 16. The findings of the learned trial Court that the plaintiff is not entitled for the relief of mandatory injunction and possession are also stated to be contrary to the evidence. According to the plaintiff, tatima, Ex. 16. The findings of the learned trial Court that the plaintiff is not entitled for the relief of mandatory injunction and possession are also stated to be contrary to the evidence. According to the plaintiff, tatima, Ex. PW -2/A, whereby, entry of the constructed house has been made in the revenue record, coupled with the admission of DW-1, Leela Devi (defendant No. 2) that she had raised construction after demolishing the shed, also proves that the defendants have encroached upon khasra No. 540/1. 17. The learned First Appellate Court has allowed the appeal, by setting aside the judgment and decree, dated 7th April, 2007 and has decreed the suit for permanent prohibitory injunction, restraining the defendants from interfering, in any manner, whatsoever, over the land comprised in khasra No. 540, except khasra No. 540/1, with consequential relief of possession in respect of the land, comprised in khasra No. 540/1, by putting the plaintiff into possession of the two storeyed house. 18. Feeling aggrieved from the said judgment and decree, the present appeal has been preferred, by the defendants, before this Court, mainly on the ground that the learned First Appellate Court has not considered the fact that the suit for injunction is not maintainable, as, the plaintiff was not in possession of the suit land, at the time of filing of the suit. 19. According to the appellants-defendants, the GPA of the plaintiff, while appeared in the witness box as PW-1, has admitted that he himself had handed over the keys to the defendants and has also stated that the defendants had assured him that within three months, they will give the price of the suit land, in case, they want to purchase the same. All these facts have been highlighted to show that the plaintiff was not in possession of the suit property, at the time of filing of the suit. 20. The statement of PW-2, Circle Patwari is also stated to have been completely misread by the learned First Appellate Court, as, PW-2 has mentioned that the plaintiff is owner of one third share only, whereas two third share belongs to one Satnu. 21. As per the appellants-defendants, since, no partition has taken place between Mehar Singh and said Satnu, and said Satnu has not been impleaded as party, in the suit, as such, the suit is bad for non-joinder of necessary parties. 22. 21. As per the appellants-defendants, since, no partition has taken place between Mehar Singh and said Satnu, and said Satnu has not been impleaded as party, in the suit, as such, the suit is bad for non-joinder of necessary parties. 22. The findings of the learned First Appellate Court have further been assailed, on the ground, that PW-2 had admitted that tatima, Ex. PW-2/A, was prepared by him, on the spot and the construction was going on. The said PW-2 has also admitted that demarcation was conducted without the orders of the Tehsildar and no notice was served upon the other party, before demarcation. These facts have been pleaded in order to show that the demarcation was done without associating the defendants, in violation of instructions, issued by the Financial Commissioner, in this regard. 23. The statement of GPA of the plaintiff is stated to have wrongly been relied upon, in violation of the judgment of the Hon’ble Supreme Court. No reasons are stated to have been assigned as to why the plaintiff has not put appearance. 24. According to the defendants-appellants, the learned First Appellate Court has not considered the averments made by DW-2, Leela Devi, who has categorically stated that the sale deed was executed with respect to the suit land, on 25th November, 1998, however, this fact has been misconstrued by the learned First Appellate Court. 25. On the basis of the above facts, a prayer has been made to allow the appeal. 26. The appeal has been admitted, on 31st December, 2007, on the following substantial question of law: “1. Whether the suit for permanent prohibitory injunction restraining the defendants from interfering in the suit property was maintainable in view of the admitted fact that the plaintiff was not in possession of the property in dispute? 2. Whether the demarcation conducted by only Patwari, that is also without obtaining orders from the concerned Tehsildar is admissible under law and could have been relied upon by the learned Appellate Court, which his absolutely against the mandate of High Court Rules, order and instructions issued by learned Financial Commissioner in this regard? 3. Whether the learned District Judge erred in not taking the adverse influence under Section 114 of the Evidence Act as the plaintiff had not appeared himself in the witness box to prove his case without any rhyme and reason? 4. 3. Whether the learned District Judge erred in not taking the adverse influence under Section 114 of the Evidence Act as the plaintiff had not appeared himself in the witness box to prove his case without any rhyme and reason? 4. Whether the learned District Judge erred in not taking into consideration the pleading in the written statement whereby it is mentioned that the property in dispute was sold by the plaintiff vide sale deed dated 25.11.1998 for valuable consideration? 5. Whether the judgment passed by the learned District Judge is based on mis-reading of the evidence on record and reversed the judgment passed by the learned trial Court without any cogent evidence for its reversal?” 27. It is apt to record herein that alongwith the appeal, the appellants have filed an application, under Order 41 Rule 27 of the CPC, which has been registered as CMP No. 32 of 2008, for bringing on record the sale deed, dated 25th November, 1998. Since, the document, sought to be produced, was not annexed with the application, as such, another application, being CMP No. 8810 of 2017, has been filed, for placing the sale deed, dated 25th November, 1998, on record. The said application (CMP No. 8810 of 2017) has been allowed, by this Court, vide order, dated 24th October, 2017, and the appellants were permitted to place on record the sale deed, dated 25th November, 1998. However, instead of producing the certified copy or the original sale deed, the appellants have placed on record only the photocopy of the said sale deed, which has been attested by the learned counsel. 28. First of all, coming to the application, filed under Order 41 Rule 27 CPC; by way of the said application, an attempt has been made to prove the sale deed, dated 25th November, 1998. Alongwith the application, neither the sale deed nor attested copy of the sale deed has been annexed. For that purpose, a separate application was moved, which, although, was decided by this Court on 24th October, 2017. Alongwith the application (CMP No. 8810 of 2017), only the photocopy of the sale deed, which was attested to be the true copy, by the learned counsel, has been annexed. For that purpose, a separate application was moved, which, although, was decided by this Court on 24th October, 2017. Alongwith the application (CMP No. 8810 of 2017), only the photocopy of the sale deed, which was attested to be the true copy, by the learned counsel, has been annexed. The application, under Order 41 Rule 27 CPC can only be allowed, in case, the requirement, as per the provisions of Order 41 Rule 27 CPC, is found to be complete. Since, the requirement of Order 41 Rule 27 CPC has not been complied with and the learned counsel for the appellants could not satisfy the judicial conscience of this Court as to how this document is relevant for the just adjudication of the present case, as such, the said application (CMP No. 32 of 2008) is dismissed. 29. In order to decide the controversy involved, in the present case, it would be just and appropriate to discuss the oral, as well as, documentary evidence, adduced by the parties. 30. After framing of the issues, Pritam Singh, GPA of plaintiff-Mehar Singh, appeared in the witness box, as PW-1 and deposed that his father was not able to move. According to him, his father is having one third share in the suit land and he has constructed double storeyed house, over the suit land. The ground floor was used for tethering the cattle and in the first floor, they used to reside. Since, they were also having their house in Village Siune, as such, they used to reside there. 30.1. As per the further deposition of this witness, the defendants, in the month of July, 2003, had started dismantling the house and they had been asked not to do so on 3rd, 4th and 5th July, 2003. Thereafter, a notice was got served on defendant No. 1, however, defendants did not stop the work. Upon this, the Civil Suit was filed, in which, stay was granted by the learned trial Court. Despite the stay order, the defendants continued with the construction work and on 14th, 15th, 16th and 17th July, 2003, they had put GI sheets, over the house. After considerable time, they had started residing in the house in question. After some time, the GI sheets were replaced with slates. 30.2. In his cross-examination, this witness has stated that Saran Dass is also co-sharer in the suit land. After considerable time, they had started residing in the house in question. After some time, the GI sheets were replaced with slates. 30.2. In his cross-examination, this witness has stated that Saran Dass is also co-sharer in the suit land. He has admitted that his father has sold the land to the defendants, in Village Jandrog. He has denied that the house, situated in abadi deh, was also sold to the defendants. Siune Village is stated to be situated at a distance of 15-17 km from Village Jandrog. He could not remember whether his father has sold the land in Village Jandrog on 25th November, 1998. 30.3. This witness has further admitted that he himself has handed over the keys of the house, in which, on the ground floor, there was a cow shed, to the defendants. He has voluntarily stated that the defendants had assured to pay the amount of sale consideration, within three months, in case, they wanted to purchase the same. 31. PW-2, Anil Kumar, Patwari, Patwar Circle, Jandrog, has deposed that one third portion of khasra No.540 is owned by plaintiff-Mehar Singh and two third share is owned by one Sarna. This witness has prepared the tatima, Ex. PW-2/A. of the house, as per the orders of Tehsildar. The same was prepared on the spot. This witness was instructed by the Tehsildar, on 15th November, 2003, to visit the spot. Demarcation was done on 10th , for which, orders were not obtained from the Tehsildar. This witness has voluntarily stated that at the instance of plaintiff, he had gone there, however, no notice was issued to the affected party. 32. PW-3, Amar Singh, has deposed that he is Lambardar of Jandrog Patwar Circle. According to this witness, the plaintiff is the owner of the suit land and the house, which was dismantled by the defendants in the month of July, 2003 and construction of the new house was started. The construction work is stated to have been started from 1st July and completed on 14th, 15th and 16th July, 2003. Plaintiff-Mehar Singh is stated to be from his in-laws. This witness has shown his ignorance about the fact as to whether the plaintiff has sold the suit land and house to the defendants. 33. PW-4, Raj Kumar, has also stated that plaintiff-Mehar Singh is the owner of the suit land and house. Plaintiff-Mehar Singh is stated to be from his in-laws. This witness has shown his ignorance about the fact as to whether the plaintiff has sold the suit land and house to the defendants. 33. PW-4, Raj Kumar, has also stated that plaintiff-Mehar Singh is the owner of the suit land and house. This witness has seen the construction going on, on 2nd - 3rd July, 2003 and the roof was laid on 14th, 15th and 16th July, 2003 34. To rebut this evidence, defendant No. 2-Leela Devi appeared in the witness box as DW-1 and deposed that the age of plaintiff-Mehar Singh was 80 -90 years. According to this witness, they had purchased the land from Mehar Singh and sale deed was executed for a sum of ? 1,25,000/-. This witness has stated that in the year 2000, the old structure was removed and new structure was constructed. Thereafter, Pritam Singh has trespassed into their house and caused damage to the doors and windows. 34.1. This witness has admitted that the land, which they had purchased from Mehar Singh, was obtained by way of sale deed and mutation was also sanctioned. She has feigned her ignorance about the fact that plaintiff is having one third share in the suit land. The area of khasra No. 540 is stated to be about 15 biswa. She has admitted that they have purchased two shares in the suit land. She has deposed much about the manner, in which, the construction has been raised over the suit land, by them. 35. DW-2 Deeno, has deposed that the defendants had purchased the land alongwith abadi deh. There was a cow shed in the abadi deh. Thereafter, a two storeyed house was constructed. 36. So far as the documentary evidence is concerned, Ex. P-1 is the jamabandi for the years 2000-01, according to which, the suit land has been recorded as Gair Mumkin and in the suit land, plaintiff-Mehar Singh has been recorded as owner of one third share, whereas Sarno is having two third share. Ex. PW-1/A is the copy of GPA. Ex. D-1 is the photograph, Ex. D-2 is the negative and Mark-A is the tatima. 37. Ex. PW-1/A is the copy of GPA. Ex. D-1 is the photograph, Ex. D-2 is the negative and Mark-A is the tatima. 37. The learned trial Court, in the present case, has dismissed the suit of the plaintiff, mainly on the ground, that the possession of the defendants over the suit land has not been obtained forcibly by them, as, it was the plaintiff, who had handed over the possession of the suit land to the defendants. 38. These findings have been assailed by the plaintiff, before the learned First Appellate Court, by way of Civil Appeal. The learned First Appellate Court has reversed those findings, on the ground that there is nothing on the record, which could show that the plaintiff agreed to dismantle the old house. 39. While allowing the appeal, preferred by the plaintiff, the learned First Appellate Court has also held that non-appearance of the plaintiff, in the witness box, is not fatal for the case of the plaintiff. While holding that the plaintiff has been proved to be the owner in possession of the one third share and the defendants have been held to be unnecessarily interfering over the same, without any reason, the suit has been decreed. 40. The appeal has been admitted on the substantial questions of law, as reproduced above. 41. The plaintiff is having one third share in the suit land. The admission of the GPA of the plaintiff, qua the fact that ‘It is correct that his father had sold the land to defendants in Village Jandrog’, nowhere leads the Court to conclude that it was the suit land, which was sold by plaintiff-Mehar Singh to the defendants. The vague suggestion, which has been denied qua the fact that the house, which was in the abadi deh, the ground floor was being used for tethering the cattle and the first floor was used for human dwelling, was sold to the defendants, is too short to conclude that it was the suit land, which was allegedly sold by plaintiff-Mehar Singh to the defendants. 42. 42. At the worst, it can be said that on account of the admission of PW-1, GPA of the plaintiff, that ‘It is correct that the house, in which, there is cow shed on the ground floor, keys were handed over to the defendants, due to brotherly relations’, it could have been held that the possession was handed over to the defendants, but, this does not mean that the plaintiff is not entitled for any relief. 43. Once, the defendants have taken the plea that they have purchased the land, onus was upon them, to prove the same. The application, under Order 41 Rule 27 CPC is totally silent about the fact as to why the document, photo copy of which, has now been annexed with the application, could not be produced/proved by them, before the learned trial Court, or, before the learned First Appellate Court. 44. The learned counsel appearing for the appellants-defendants could not satisfy the judicial conscience of this Court, as, in the document, stated to be the sale deed of the suit land, there is no reference with regard to the suit land. In other words, it can be said that even if this document is taken, as it is, the defendants have miserably failed to connect this document, i.e. the alleged sale deed, executed by the plaintiff, in favour of the defendants, with the suit land, khasra number of which, is 540. 45. Considering the fact that the defendants could not prove the fact that they are co-sharers or having right in the suit land, then, the plaintiff is entitled for the relief, as claimed in the suit, and, those reliefs have rightly been granted by the learned First Appellate Court, to him. Merely, on the ground that no notice was issued by PW-2, Patwari, before preparing the tatima, does not dis-entitle the plaintiff from seeking the relief, as claimed in the Civil Suit. 46. So far as the stand of the defendants that the suit property was sold by the plaintiff, vide sale deed, dated 25th November, 1998, to the defendants, is concerned, except the pleading, there is no evidence to substantiate the said fact. Even otherwise, the sale deed, dated 25th November, 1998, has not been proved to probabilize the said stand of the defendants. On the basis of a stray admission made by PW-1, no relief can be granted to the defendants. Even otherwise, the sale deed, dated 25th November, 1998, has not been proved to probabilize the said stand of the defendants. On the basis of a stray admission made by PW-1, no relief can be granted to the defendants. 47. Considering the above facts, this Court is of the considered opinion that in view of the admitted fact on the record, non-appearance of the plaintiff is niether fatal for the case of the plaintiff nor an adverse inference could be drawn, as, the case of the plaintiff is proved from the revenue record, as well as, from the stand taken by the defendants. 48. In view of the above, the substantial questions of law are answered against the appellants. Consequently, the appeal is dismissed and findings of the learned First Appellate Court are affirmed. 49. Pending miscellaneous applications are also disposed of accordingly. 50. Decree sheet be prepared accordingly. 51. Record be sent back.