Himachal Pradesh High Court
Smt. Seema Walia And Others vs Smt. Kunjana Sharma And Others on 5 May, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 614 of 2014
.
Decided on: 5th May, 2015
Smt. Seema Walia and others.
.......Appellants.
Versus
Smt. Kunjana Sharma and others
...Respondents.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 No.
For the appellants:
r Mr. Ashok K. Tyagi, Advocate.
For the respondents: Mr. H.C. Sharma, Advocate
Dharam Chand Chaudhary, Judge (Oral)
Defendants are in second appeal before this Court. They are aggrieved by the judgment and decree dated 03.09.2014 passed by learned District Judge, Sirmour District at Nahan in Civil Appeal No. 70-CA/13 of 2013/12, whereby the judgment and decree passed by learned trial Court in Civil Suit No. 48/1 of 2008 has been affirmed and the appeal dismissed.
2. The respondent-plaintiff is owner in possession of the land entered in Khata/Khatoni No. 69/141, bearing 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:07:10 :::HCHP 2Khasra No. 988/567/171 measuring 6 biswas, situated at Patti Bairi, Mauja Dadahu, Post Office Dadahu, Sub Tehsil .
Dadahu, District Sirmour. Over a portion thereof he has raised construction of his house and a portion thereof is vacant on the spot. Adjoining to the suit land is the land entered in Khata/Khatoni No. 78/151, bearing Khasra No. r to 987/567/131 measuring 6 biswas belonging to the appellants-defendants. The plaintiff's case is that on 06.05.2008, the defendants taking undue advantage of his absence and absence of his wife started digging foundation over a portion of the suit land lying vacant on the spot. When returned to home in the evening, he protested against such illegal act on the part of the defendants, they stopped the digging, however, on 9th May, 2008, they again started digging the vacant suit land and also collected raw material for raising construction thereon. Also that the defendants did not stop the digging of the suit land despite the requests he made repeatedly, hence the suit for the decree of permanent prohibitory injunction with consequential relief of mandatory injunction, in case construction is ::: Downloaded on - 15/04/2017 18:07:10 :::HCHP 3 found to be raised over the suit land lying vacant on the spot or a portion thereof.
.
3. The case of the defendants in the written statement is that adjoining to the suit land, they have also purchased land entered in Khata/Khatoni No. 78/151, bearing Khasra No. 987/567/131 measuring 6 r to biswas. A three feet wide space is in existence between the suit land and the land purchased by them.
have raised construction of their house leaving three feet They space vacant denoted with letters, A, B, C and D in the map on the spot. The plaintiff allegedly without seeking demarcation of the land has falsely filed the suit. The same was sought to be dismissed.
4. Plaintiff filed replication to the written statement denying the averments to the contrary in the written statement being wrong.
5. Following issues were framed by learned trial Court after holding full trial and hearing parties on both sides:
1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for? O.P.P. ::: Downloaded on - 15/04/2017 18:07:10 :::HCHP 4
2. Whether the plaintiff is also entitled to the relief of mandatory injunction as well as possession? O.P.P. .
3. Whether the suit of the plaintiff is not maintainable in the present form as alleged?
O.P.D.
4. Whether the plaintiff has not approached the Court with clean hands and effect thereof?
O.P.D.
5. Whether the suit of the plaintiff is under valued and effect thereof? O.P.D.
6. Whether the plaintiff has no locus standi to file the present suit? O.P.D.
7. Whether the defendants have become owner in possession by way of adverse possession? O.P.D.
8. Relief.
6. The suit has not only been decreed for the relief of permanent prohibitory injunction, but also for mandatory injunction while answering issues No. 1 and 2 in affirmative i.e. in favour of the plaintiff and the remaining issues No. 3 to 7 in negative i.e. against the defendants.
7. The judgment and decree passed by learned trial Court was assailed in Civil Appeal No. 70-CA/13 of 2013/12, in learned lower appellate Court. Learned ::: Downloaded on - 15/04/2017 18:07:10 :::HCHP 5 lower appellate Court has, however, dismissed the appeal and affirmed the judgment and decree passed .
by the trial Court.
8. This appeal has been preferred on several grounds, however, mainly that the plaintiff should have not been allowed to examine the Local Commissioner in rebuttal, particularly when his evidence was ordered to be closed in affirmative. Also that the report Ext. PW-1/C submitted by the Local Commissioner cannot be treated to be legal and acceptable evidence, as the defendants were not associated at the time of demarcation conducted on the spot. As a matter of fact, it is the above two points have been urged to be framed as substantial questions of law in the present appeal by learned counsel during the course of arguments and the appeal has been sought to be admitted on these two questions.
9. On 23.03.2015, when this appeal came be listed for admission, following order came to be passed on the joint request of learned counsel representing the parties on both sides:
::: Downloaded on - 15/04/2017 18:07:10 :::HCHP 6"Since only 14 biswansi land of respondents- plaintiffs has been found to be encroached .
upon by the appellants-defendants, learned counsel on both sides seek adjournment to have instructions qua amicable settlement of the dispute. List on 10th April, 2015."
10. On the next date, more time was sought for seeking instructions with regard to amicable settlement of the dispute, which was granted.
11. Learned counsel has pleaded no instructions, as according to him, the appellants-defendants did not turn up despite correspondence made and he tried to contact them over telephone. I, therefore, proceeded to hear learned counsel representing the parties on both sides for the purpose of admission of the appeal.
12. As pointed out hereinabove, on behalf of the appellants-defendants, the judgment and decree under challenge has been sought to be quashed on two counts, i.e. (i) the respondent-plaintiff should have not been allowed to produce the Local Commissioner in rebuttal and; (ii) the report of the Local Commissioner is not legally admissible in evidence, because neither the ::: Downloaded on - 15/04/2017 18:07:10 :::HCHP 7 demarcation has been conducted on the spot in terms of Chapter 10.2 of the H.P. Land Record Manual nor the .
provisions under the High Court Rules and Orders and H.P. Land Revenue Act. Also that, they have not been associated at the time of demarcation of the land conducted on the spot.
13. On the other hand, Mr. H.C. Sharma, learned counsel representing the respondent-plaintiff has forcibly contended that the onus to prove vital issues, particularly issue No. 7 was on the defendants and as such, the respondent-plaintiff has rightly been allowed to produce the evidence in rebuttal in order to rebut the evidence produced by the defendants. Mr. Sharma has further contended that on the first date of the demarcation, the defendants were very much present on the spot, however, on the next date also, they were present on the spot but refused to make any statement. It has further been urged that concurrent findings recorded by both Courts below on proper appreciation of the facts and circumstances of this case as well as evidence available on record may not be interfered with.
::: Downloaded on - 15/04/2017 18:07:10 :::HCHP 814. It is seen that the Local Commissioner was appointed by learned trial Court vide order dated .
11.12.2008, passed in an application under Order 26 Rule 9 of the Code of Civil Procedure filed by the respondent-
plaintiff. The Local Commissioner has conducted the spot inspection during the pendency of the suit and submitted the report in the trial Court well before the parties entered into the witness box. Not only this but, the plaintiff while in the witness box as PW-1 has proved the demarcation report Ext. PW-1/C. It is seen from his cross-examination conducted on behalf of the appellants-defendants that they have disputed the authenticity and genuineness of the report Ext. PW-1/C on three counts i.e. (i) the demarcation was not conducted as per procedure prescribed therefor (ii) the demarcation was conducted behind the back of the appellants-defendants and; (iii) the position of 21.02.2010 emerged on the spot after demarcation conducted on that day was tempered with by the respondent-plaintiff and as a result thereof, the demarcation completed on the next date i.e. on 28.02.2010 was not correct.
::: Downloaded on - 15/04/2017 18:07:10 :::HCHP 9Therefore, when the serious objections were raised by the appellants-defendants to the report of the Local .
Commissioner, the respondent-plaintiff was legally entitled to rebut the same by producing the Local Commissioner in rebuttal evidence. Otherwise also, on a vital issue that the defendants have acquired title in the land of the plaintiff by way of adverse possession was on them and as they produced the evidence, therefore, on this score also, the plaintiff was entitled to produce the evidence in rebuttal. The plaintiff even has closed the evidence in affirmative. Learned counsel representing the appellants-defendants has, therefore, failed to persuade this Court that the trial Court has committed illegality or irregularity in allowing the respondent-plaintiff to produce the Local Commissioner in rebuttal evidence.
15. I am not convinced with the arguments that the demarcation has been conducted behind the back of the defendants, for the reason that as per the evidence having come on record by way of testimony of the plaintiff, which remained un-shattered, the defendants were present during the course of ::: Downloaded on - 15/04/2017 18:07:10 :::HCHP 10 demarcation conducted on both days' i.e. 21.02.2010 and 28.02.2010. His further version that they refused to .
make the statement before the Local Commissioner seems to be nearer to the factual position for the reason that normally the party who intentionally and deliberately back out from the demarcation, even conducted lawfully, refused to make the statement or abscond from the spot. Above all, the testimony of the plaintiff finds full corroboration from the statement of Shri Jagat Ram Sharma PW-3, the Local Commissioner, who as a matter of fact, being appointed by the Court can be believed to be impartial having not been interested in either party. No doubt, suggestions were given to the plaintiff and also to PW-3 that the report is not correct and rather result of their connivance, but of no avail, as they denied the same to be wrong. There is no reason to disbelieve the version of the plaintiff and PW-3 in this regard, for the reason that the defendants have failed to produce any evidence to show that the Local Commissioner was interested in the case of the plaintiff or inimical to them. Therefore, the Local Commissioner's ::: Downloaded on - 15/04/2017 18:07:10 :::HCHP 11 report Ext. PW-1/C is legal and acceptable evidence. It is, therefore, established that the appellants-defendants .
have encroached upon 6 biswas of land of the respondent-plaintiff.
16. Although, it has also been urged that the evidence available on record has not been appreciated in its right perspective and on account of that the judgment and decree being vitiated is not legally sustainable, yet such submissions seem to be made merely for rejection, because the record reveals that learned lower appellate Court has decreed the suit on proper appreciation of the given facts and circumstances and also the evidence available on record. The appellants-defendants were given opportunity in the trial Court also to settle the controversy amicably. This Court also adjourned the appeal twice for the purpose, however, they failed to turn up and even not imparted any instructions to learned counsel also. They seem to be head strong persons and have encroached upon the land belonging to the plaintiff forcibly and raised construction thereon. Both Courts ::: Downloaded on - 15/04/2017 18:07:10 :::HCHP 12 below, therefore, have not committed any illegality or irregularity in decreeing the suit for the relief of .
permanent prohibitory injunction and mandatory injunction.
17. No legal question much less what to speak of substantial question of law as alleged during the course r to of argument on behalf of the appellants-defendants arises for adjudication in the present appeal. The same rather being devoid of any merits is dismissed. The judgment and decree passed by learned lower appellate Court affirmed. Pending application(s), if any, shall also stand disposed of.
May 5, 2015 (Dharam Chand Chaudhary)
(naveen) Judge
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