Himachal Pradesh High Court
Shyam Singh vs Joginder Singh on 1 January, 2020
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.612 of 2007.
Reserved on: 2.12.2019.
Date of Decision : 1st January, 2020.
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Shyam Singh ...Appellant.
Versus
Joginder Singh ...Respondent.
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the appellant: Mr. Romesh Verma, Advocate.
For the respondent: Mr. B.S. Chauhan, Sr. Advocate with Mr. Munish Datwalia, Advocate.
Chander Bhusan Barowalia, Judge.
By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned Additional District Judge, Fast Track Court, Shimla, District Shimla, in Trial Court Case No.69/1 of 2002, dated 13.9.2007, vide which, the learned lower Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Junior Division), Court No.3, Shimla, District Shimla, in Civil Suit No.69/1 of 2002, dated 27.2.2007.
2. Material facts necessary for adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as 'plaintiff') maintained a suit for permanent prohibitory injunction against the respondent-defendant (hereinafter referred to as 'defendant') alleging therein that plaintiff is recorded owner-in-possession of land comprising in Khata No.1, Khatauni No.4, Khasra No.164, measuring 0- 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 04/01/2020 20:26:16 :::HCHP 209-75 hectares, situated at Mauja Kavi, Pargana Kaimli, Tehsil and District Shimla (hereinafter referred to as 'suit land'). Even though, other persons are also recorded as owners of the suit land, but the .
plaintiff is recorded as physical possession of the entire land. Defendant is recorded as owner-in-possession of the land as entered in Khata No.2, Khatauni No.12 min, Khasra No.165, measuring 0-03-69 hectares situated at Mauja Kavi, Tehsil and District Shimla. Defendant is one of the owner of Khasra No.165, but the entire area as entered in Khasra No.165 is recorded in exclusive possession of late Shri Deep Ram, who was father of the defendant. Defendant has got no right, title or interest in Khasra No.164, which is in exclusive possession of the plaintiff. The boundaries of Khasra No.165 and 164 are adjoining, therefore, the defendant is threatening to encroach upon area of Khasra No.164, at the point where boundaries of Khasra No.164 and 165 are adjoining. In the month of May, 2002, the defendant expressed his desire that he was tying to raise construction of his house upon Khasra No.165 and threatened to start construction work by encroaching upon Khasra No.164. The plaintiff is trying and threatening to start digging and excavation work over the land of the plaintiff as entered in Khasra No.164. There is every likelihood that the defendant is trying to encroach upon Khasra No.164, which is in exclusive possession of the plaintiff.
::: Downloaded on - 04/01/2020 20:26:16 :::HCHP 33. The suit of the plaintiff was resisted and contested by the defendant by filing written statement and taking the preliminary objections that the suit is not maintainable, plaintiff has no locus standi .
and suit is bad for non-joinder of necessary parties, plaintiff has no cause of action and suit is not properly valued for the purpose of court fee and jurisdiction. On merits, case of the defendant is that he is owner-in-possession of land comprised in Khata/Khatauni No.2/12 min.
Khasra No.165, measuring 0-03-69 hectares situated at Mauza Kavi, Tehsil and District Shimla. Defendant is raising construction over Khasra No.165 and never touched to the land comprised in Khasra No.164. It is denied that the defendant is proclaiming and threatening to start any digging and excavation work over the land of the plaintiff.
4. From the pleadings of parties, the learned trial Court framed following issues :
"1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for ? OPP.
2. Whether the plaintiff is entitled for the relief of mandatory injunction, as prayed for ? OPP.
3. Whether the suit is not maintainable in the present form, as alleged ? OPD.
4 . Whether the plaintiff has no locus standi to file the present suit against the defendant, as alleged ? OPD.
5. Whether the suit is bad for non-joinder of necessary parties, as alleged ? OPD.
6. Whether the plaintiff has no cause of action to file the present suit, as alleged ? OPD.::: Downloaded on - 04/01/2020 20:26:16 :::HCHP 4
7. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction, as alleged ? OPD.
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8. Relief."
5. The learned trial Court after deciding Issue No.1 in affirmative, Issue Nos.2 to 7 in negative, partly decreed the suit.
6. Feeling aggrieved thereby the plaintiff maintained first appeal before the learned Additional District Judge, Fast Track Court, Shimla, assailing the findings of learned Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court affirmed the findings of the learned Court below. Now, the appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 23.7.2008, on the following substantial questions of law:
"1. Whether the Courts below have failed to appoint Local Commissioner, in order to determine boundary dispute between the parties despite the fact that application under Order 26, Rule 9 C.P.C. was filed before the learned Trial Court ?
2. Whether the demarcation report Ex.PW3/A which was prepared as per instructions of the Hon'ble Financial Commissioner, Himachal Pradesh has been wrongly brushed aside and disbelieved ?"
7. Mr. Romesh Verma, learned counsel appearing on behalf of the appellant has argued that an application, under Order 26 Rule 9 of the Code of Civil Procedure was filed, which was dismissed by the learned Court below and without appointing Local Commissioner, when ::: Downloaded on - 04/01/2020 20:26:16 :::HCHP 5 the demarcation report was not accepted. He has further argued that the findings recorded by the learned Court below are against the facts, which have come on record to its true perspective, without appreciating .
the evidence and documents and the same are perverse. In support of his arguments, he has relied upon the following judicial pronouncements :
1. Ram Lal & sons vs. Salig Ram & ors. 2019 (2) Him. L.R (SC) 852.
2. Bali Ram vs. Mela Ram and another, AIR 2003, Himachal Pradesh, 87.
3. Kamal Dev and another vs. Hans Raj, AIR 2000, Himachal Pradesh, 130.
8. On the other hand, Mr. B.S. Chauhan, learned Senior Counsel for the respondent has argued that there is no boundary dispute and also there is no pillar on the spot, as there was no encroachment, so there was no necessary to appoint Local Commissioner. In support of his arguments, he has relied upon the following judgments :
1. Abubakar Abdul Inamdar (dead) by LRs and others vs. Harun Abdul Inamdar and others, AIR 1996 Supreme Court, 112.
2. Sayed Muhammad Mashur Kunhi Koya Thangal vs. Badagra Jumayath Palli Dharas Committee and others, (2004) 7 Supreme Court Cases, 708.
3. Tulamaya Chettri and another vs. Yonarayan Pradhan and others, AIR 2004 Sikkim 39.::: Downloaded on - 04/01/2020 20:26:16 :::HCHP 6
9. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail.
.
10. In order to prove its case, plaintiff-Shyam Singh, while appearing into the witness box as PW-1, deposed that he is owner-in-
possession of the suit land. As per this witness, land of the defendant adjoining to his property. He has stated that the defendant is trying to encroach upon his land. When the defendant did not stop the construction work, he maintained the suit and obtained stay order from the Court. Despite of the stay order, the defendant continued the building work. Thereafter, he moved an application before the Tehsildar, for demarcation of his land. Plaintiff and the defendant had admitted the demarcation given by the Kanungo on the spot. The defendant has illegally occupied 0-00-17 hectares of land owned by him.
In his cross-examination, he has admitted that there are other co-
owners of the disputed property. He has denied that the defendant has done the construction work over his own land i.e. Khasra No.165. He has also denied that pucca points were not fixed at the time of demarcation. Defendant-Joginder Singh, as DW-1, deposed that in between his land and land of the plaintiff there is a wall, which was erected by the plaintiff 6-7 years ago. In his cross-examination, he has admitted that the plaintiff had taken the demarcation during the ::: Downloaded on - 04/01/2020 20:26:16 :::HCHP 7 pendency of suit and was present at the time of demarcation. He has denied that his encroachment was found over the land in dispute.
11. As far as encroachment is concerned, demarcation was .
done by Devinder Gangta-PW-3. He has conducted the demarcation in presence of both the parties. This witness has stated that he has demarcated the suit land in presence of both the parties and prepared the demarcation report, which is Ex.PW3/A. As per his demarcation report, the defendant made an encroachment of 0-00-17 hectare. He has admitted in his cross-examination that he has not demarcated the suit land, as per the instructions of Financial Commissioner. In cross-
examination, he has admitted that he has not ascertained two fixed points on the spot. He has admitted that the boundaries of Khasra No.164 and 165 are adjoining. He has further admitted that the adjoining number of Khasra No.164 were not in the musavi. Further, it is not clear that how the area of encroachment portion has been worked out by PW-3, because in the report, no dimension of the encroachment part has been mentioned. He has only measured Khasra No.164. So, the said report is not acceptable. The plaintiff has also placed on record copy of jamabandi for the year 1998-99, which is Ex.PW1/A, which shows that the plaintiff is recorded in physical possession of Khasra No.164. In his cross-examination, the defendant admitted that the boundaries of Khasra No.164 and 165 are adjoining. He has admitted that the plaintiff is in possession of the suit land.
::: Downloaded on - 04/01/2020 20:26:16 :::HCHP 812. Now, as per the plaintiff, the defendant has threatened and tried to interfere in the peaceful possession over the plaintiff's land in Khasra No.164. In his statement before the learned Court below, he .
has stated that the defendant has tried to start construction work in Khasra No.165 in the year 2002 and tried to encroach upon Khasra No.164 by leveling it, meaning thereby, it is not the case of the plaintiff that the defendant has encroached upon the suit land. So, when there is no encroachment alleged by the plaintiff, can the Local Commissioner is required to be appointed, answer is no. If the plaintiff has not pleaded and stated that the defendant has encroached upon the suit land. The judgment as cited by the learned counsel for the plaintiff in Kamal Dev and another case's (supra), is not applicable, as the plaintiff himself has not said anything to the effect that the defendant has encroached upon the suit land.
13. In the present case, the encroachment is neither alleged in the pleadings nor stated to be so by the plaintiff while appearing in the witness box and no where it is pleaded or deposed before the learned Court below when the defendant has encroached upon Khasra No.165. The only allegations is that he has tried to encroach upon the suit land in Khasra No.165 by leveling it. The case of the plaintiff is that the plaintiff has raised construction on his own land. In these circumstances, when the encroachment is not alleged there is no necessity to appoint Local Commissioner. In the present case also, an ::: Downloaded on - 04/01/2020 20:26:16 :::HCHP 9 application for demarcation was not made by the plaintiff before the learned Court below at the appropriate stage.
14. In Tulamaya Chettri and another vs. Yonarayan .
Pradhan and others, AIR 2004 Sikkim 39, has held as under :
"Order 26, Rule 9 CPC authorizes the Court to appoint a commissioner if it considers a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute or for other reasons mentioned therein. The matter is thus left to the discretion of the Court. The discretion is however a judicial one and not an arbitrary exercise of the power. The object of such appointment is to obtain evidence from the spot itself which helps the Court to properly understand and assess the evidence on record. The report submitted by the Commissioner is a piece of evidence which has to be considered alongwith other evidence on record. In Mahendranath Parida v. Parnanda Parida, AIR 1988 Orissa 248, Justice R.C. Patnaik (as he then was) pithily observed as follows :-
"No doubt, the provision confers a discretion on the Court. But the discretion, as it is well known has to be exercised in a judicious and sound manner but not whimsically and capriciously. What is necessary to note in the provision is the expression deems a local investigation to be requisite or proper for the purpose elucidating any matter in dispute. Therefore, where the Court considers a local investigation to be requisite and proper, ordinarily it should not decline to exercise jurisdiction. It may decline jurisdiction if the motion is made at a belated stage or if the motion is mala fide or in circumstances justifying refusal. A party has choice and a right to examine a survey knowing person after getting the identification or measurement privately done by him. For examining such witness it does not seek any privilege or indulgence."
(Emphasis supplied)
15. In Abubakar Abdul Inamdar (dead) by LRs and others vs. Harun Abdul Inamdar and others, AIR 1996 Supreme Court, 112, wherein it has held as under :
"With regard to the plea of adverse possession, the appellant having been successful in the two Courts below and not in the High Court, one has to turn to the pleadings of the appellant in his written statement. There he has pleaded a duration of his having remained in exclusive possession of the house, but nowhere has he pleaded a single overt act on the basis of which it could be inferred or ascertained that from a particular point of time his possession became hostile and notorious to the complete exclusion of other heirs, and his being in ::: Downloaded on - 04/01/2020 20:26:16 :::HCHP 10 possession openly and hostilely. It is true that some evidence, basically of Municapal register entries, were inducted to prove the point but no amount of proof can substitute pleadings which are the foundation of the claim of a litigating party. The High Court cought the appellant right at that point and .
drawing inference from the evidence produced on record, concluded that correct principles relating to the plea of adverse possession were not applied by the courts below. The finding, as it appears to us, was rightly reversed by the High Court requiring no interference at our end."
16. No amount of proof can substitute pleadings, which are the foundation of claim of a litigating party. As in the instant case also, as the encroachment was not pleaded by the plaintiff, Local Commissioner was not required to be appointed to prove something, which is not to be pleaded.
17. In Sayed Muhammad Mashur Kunhi Koya Thangal vs. Badagra Jumayath Palli Dharas Committee and others, (2004) 7 Supreme Court Cases, 708, wherein it has been held as under :
"As is evident from the impugned judgment, the High Court took into consideration the written statement filed by the Secretary, Wakf Board wherein it has been stated that the plaintiff-Committee was very regular in submitting annual statement of accounts to the Wakf Board and in payment of annual contribution to the Board as per the provisions of the Act in support of the view that the plaintiff was actually acting as a mutawalli. This approach, in our view, is not correct. The written statement filed by Wakf Board could not bind the defendant No.
2. Further any statement made in the said written statement could not be accepted against the defendant No. 2 unless it was established on the basis of evidence. The decision of Moideen Bibi Ammal (supra), in our view, does not help the plaintiff. To apply the said decision, necessary facts ought to have been pleaded and established. In the case on hand, as already noticed above, neither there was pleading specifically in that plaint as to the plaintiff actually acting as a mutawalli to come within the scope of S. 3(f) of 1954 Wakf Act nor acceptable and sufficient evidence was placed on record to prove it as a fact. In the situation, the aforementioned decision has no application to the case of the plaintiff. When the plaintiff came forward specifically pleading that he was entitled for declaration of title and for recovery of ::: Downloaded on - 04/01/2020 20:26:16 :::HCHP 11 possession of the plaint schedule property based on the agreement Exbt. A-2 dated 13-2-1973, it could succeed only on the basis of validity of Exbt. A-2 and the validity of transfer of mutawalliship in its favour. Since all the Courts have concurrently found that mutawalliship could not be validly transferred in .
favour of the plaintiff-Committee under Exbt. A2, the suit filed by the plaintiff ought to have been dismissed. The plaintiff could only succeed on the strength of its case and not on the weakness found in the case of the defendant, if any. The first appellate Court having elaborately considered the evidence placed on record in the light of the pleadings of the parties had come to the right conclusion in dismissing the suit of the plaintiff. The High Court in second appeal, in our view, was not right in upsetting the findings of the fact recorded by the first appellate Court, that too without putting the parties on notice on the substantial question of law. Even otherwise, the finding of the High Court on question No. 3 cannot be sustained when such a case did not arise for consideration in the absence of necessary pleading in the plaint in that regard. Moreso when the case of the plaintiff was based clearly on title said to have been derived under Exbt. A-2."
18. From the aforesaid discussions, it is clear that as the encroachment was not pleaded by the plaintiff nor even report of the Local Commissioner can be of any help to the plaintiff, when he has himself not pleaded that the defendant has encroached upon his land.
In these circumstances, substantial question of law No.1, is answered holding that when the encroachment was not pleaded before the learned Court below has not committed illegality in not appointing the Local Commissioner. As far as, substantial question of law No.2, is concerned, as the Local Commissioner has himself stated that he has prepared the demarcation report, which is Ex.PW3/A, in violation of the instructions of Financial Commissioner, the same cannot be relied upon by the learned Courts below.
19. In view of the above discussion, the appeal of the appellant is without merit, deserves dismissal and is accordingly ::: Downloaded on - 04/01/2020 20:26:16 :::HCHP 12 dismissed. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending application(s), if any, shall also stands disposed of.
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(Chander Bhusan Barowalia)
1st January, 2020. Judge
(CS)
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