Himachal Pradesh High Court
Dev Raj & Ors vs Kaila (Deceased) Through Lrs on 5 April, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA .
RSA No. 402 of 2011 Reserved on: 16.03.2023 Decided on: 05.04.2023 __________________________________________________ Dev Raj & Ors. .....Appellants Versus Kaila (deceased) through LRs. .....Respondents ___________________________________________________ Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting?
____________________________________________________ For the appellants : Mr. Bimal Gupta, Sr. Advocate with Ms. Kusum Chaudhary, Advocate.
For the respondents : Mr. Yogesh Kumar Chandel, Advocate.
Sushil Kukreja, Judge
The instant regular second appeal has been
maintained by the appellants, who were the defendants before the learned trial Court (hereinafter referred to as " the defendants"), laying challenge to the judgment and decree, dated 11.07.2011, passed by learned District Judge, Mandi, District Mandi, H.P., in Civil Appeal No. 20 of 2010, whereby the appeal filed by the defendants against the judgment and decree dated 16.01.2010, passed by learned Civil Judge (Sr. Division), Court No. 1, Sunder 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 11/04/2023 20:32:43 :::CIS 2Nagar, District Mandi, H.P., was affirmed, wherein the suit filed by .
the respondent, who was the plaintiff before the learned trial Court (hereinafter referred to as "the plaintiff"), was decreed.
2. The brief facts of the case are that the plaintiff preferred a suit for permanent prohibitory and mandatory injunction under Section 38 and 39 of the Specific Relief Act with the averments that he is owner-in-possession of the land comprised in Khewat, Khatauni No. 223/256 min, Khasra No. 1423, measuring 0-10-15 bighas, situated in Muhal Dharanda, Tehsil Sunder Nagar, District Mandi, H.P. The plaintiff, out of 0-10-15 bighas of land, had sold 0-2-2 bighas of land to the defendants, i.e. Khasra No. 1423/1 and rest of Khasra No. 1423/2, measuring 0-8-13, remained in his ownership and possession. It was contended that the defendants under the garb of raising construction over their land had tried to interfere/encroach over the land bearing Khasra No. 1423/2. The defendants were time and again asked not to cause any unlawful interference over Khasra No. 1423/2, however, they did not pay any heed to the requests made by the plaintiff, as such, the plaintiff filed the present suit, with the prayer that the defendants may be restrained from raising any sort of construction over the land bearing Khasra No. 1423/2 with a further prayer that a decree of ::: Downloaded on - 11/04/2023 20:32:43 :::CIS 3 mandatory injunction may be passed in his favour directing the .
defendants to deliver the possession of the suit land by demolishing the construction.
3. The defendants, by way of filing written statement, contested and resisted the suit of the plaintiff. The defendants raised preliminary objections, viz., suit is not properly valued for the purpose of Court fee and jurisdiction, the plaintiff has no cause of action and that the plaintiff is estopped by his own act and conduct to file the same. On merits, the factual position regarding ownership of the land as well as the possession of the plaintiff over the suit land has not been disputed and it has also been admitted that the defendants had purchased 0-2-2 bighas of land out of the suit land from the plaintiff. As per the defendants, after purchasing the land from the plaintiff, they, in the presence of the plaintiff, started construction of a building and construction of ground floor was completed about two years ago and they were not interferring in the land of the plaintiff. Lastly, a prayer for dismissal of the suit was made.
4. The learned Trial Court on 16.07.2001 framed the following issues for determination and adjudication:-
"1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction and in the ::: Downloaded on - 11/04/2023 20:32:43 :::CIS 4 alternative for the mandatory injunction, as prayed for? OPP .
2. Whether the suit of the plaintiff is not maintainable in the present form? OPD
3. Relief."
5. After deciding issue No. 1 in affirmative and issue No. 2 in negative, suit of the plaintiff was decreed. Subsequently, the defendants preferred an appeal before the learned Lower Appellate Court, which was dismissed, vide impugned judgment and decree dated 11.07.2011, hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law:
"(1) Whether impugned judgments and decrees passed by both the Courts below are based upon misreading, misinterpreting and misconstruing the pleadings and evidence on record and are in fact contrary to the material on record and are totally perverse.?
(2) Whether the decree for mandatory injunction could be granted solely on the basis of demarcation report Ext. PW-3/A, Ext. PW-3/B and in the absence of pleadings to that effect and any evidence like Ext. PW-3/A and Ext. PW-3/B in the present case which is in direct variation of pleadings can be looked into and relied upon while passing the decree by the Courts below"
6. The learned Senior Counsel for the appellants has contended that the learned Courts below have failed to appreciate the fact that there is not even an iota of evidence on record that the alleged encroachment was made during the pendency of the suit.
::: Downloaded on - 11/04/2023 20:32:43 :::CIS 5He has further contended that both the learned Courts below have .
erroneously relied upon the report of local commissioner, Ext. PW-
3/A, as the demarcation was not carried out in accordance with the rules and procedure as well as the instructions issued by the Financial Commissioner, as such, the impugned judgment and decree, passed by the learned trial Court and affirmed by the learned first Appellate Court are liable to be set aside.
7. On the other hand, learned counsel for the respondents contended that the findings recorded by both the learned Courts below are based upon correct appreciation of law, pleadings as also the evidence on record, being pure findings of fact, are immune from challenge in the instant second appeal.
8. It is a settled law that the High Court in second appeal, cannot re-appreciate the evidence and interfere with the findings of fact reached by the trial Court and affirmed by the first appellate Court. The lower appellate Court is final, so far as the finding of fact are concerned. The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower appellate Court is contrary to law. It is only an error of law, which can be corrected by the High Court in exercise of its jurisdiction, in second appeal. If the findings recorded by the lower ::: Downloaded on - 11/04/2023 20:32:43 :::CIS 6 appellate Court is one on law, or on mixed question of law and fact, .
the High Court can certainly examine its correctness, but if it is purely one of fact, the jurisdiction of the High Court would be barred unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse. In C. Doddanarayana Reddy and Others Vs. Jayarama Reddy and Others, AIR 2020 Supreme Court 1912, it has been held that Interference with the concurrent findings of the courts below by the High Courts under Section 100 CPC must be avoided unless warranted by compelling reasons. Relevant portion of the aforesaid judgment reads as under:-
"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board v. Anjuman-E-Ismail Madris-Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:
"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC
392) : (AIR 1996 SC 3021), this Court held:
"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the ::: Downloaded on - 11/04/2023 20:32:43 :::CIS 7 High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court .
totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."
14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166) :
(AIR 1996 SC 3521), this Court held :
"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to re- place the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."
9. In Civil Appeal NO(s). 5033-5034 of 2009, titled K.N. Nagarajappa & Ors. Vs. H. Narasimha Reddy, reported in Live Law 2021 SC 433, decided on 09.09.2021, the Hon'ble Supreme Court has held that the interference by the High Courts with findings of the lower Court or concurrent findings of fact, is subject to two important caveats. The first is that, if the findings of fact are palpably perverse or outrage the conscience of the court. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103 CPC.
Relevant portion of the aforesaid judgment reads as under:-
"14. Undoubtedly, the jurisdiction which a High Court de- rives under Section 100 is based upon its framing of a sub- stantial question of law. As a matter of law, it is axiomatic that the findings of the first appellate court are final. How- ever, the rule that sans a substantial question of law, the High Courts cannot interfere with findings of the lower Court or concurrent findings of fact, is subject to two important ::: Downloaded on - 11/04/2023 20:32:43 :::CIS 8 caveats. The first is that, if the findings of fact are palpably perverse or outrage the conscience of the court; in other .
words, it flies on the face of logic that given the facts on the record, interference would be justified. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103 CPC."
10. In the instant case, both the learned Courts below have arrived at the conclusion that the defendants had unauthorizedly occupied the suit land by constructing a shop, as such, the the suit of the plaintiff was decreed by restraining the defendants from interfering in any manner over the suit land and also by directing them to demolish the encroached portion shown in the tatima, Ext.
PW-3/B in the suit land and to hand over the vacant possession of the same. The plaintiff, Kaila Ram, has appeared in the witness box as PW-4 and specifically deposed that the defendants had encroached upon his two biswas of land in the year, 2000 and forcibly raised six pillars over there. He further deposed that Tehsildar visited the spot as a Local Commissioner and issued report, Ext. PW-3/A. In cross-examination, he stated that he sold the land measuring 0-2-2 bighas, to the defendants and it was a tatima registry and the Patwari had issued tatima to the defendants. He also admitted that after the sale of the land, the possession was handed over to the defendants in the presence of Ganga Singh Patwari.
::: Downloaded on - 11/04/2023 20:32:43 :::CIS 911. PW-3, Pratap Singh, Tehsildar, was appointed as Local .
Commissioner by the learned trial Court and as per direction of the Court, he had issued demarcation report, Ext. PW-3/A and had prepared tatima, Ext. PW-3/B as per the factual position on the spot. He had also recorded the statements of the witnesses, Ext.
PW-3/C, Ext. PW-3/D and Ext. PW-3/E. The perusal of his cross-
examination reveals that he had taken permanent points A B C, as shown in tatima Ext. PW-3/B and had carried out the demarcation from the mussabi and at the time of demarcation, Halqa Patwari was also present alongwith him.
12. Defendant, Hem Raj, appeared in the witness box as DW-1 and deposed that he had purchased 0-2-2 bighas of land from the plaintiff in the year, 1997 and after its purchase, a house was constructed by his father, which was completed in the year 1998. He further deposed that house was constructed in the presence of the plaintiff and near the house, there were two trees, which were cut by the plaintiff. He also deposed that he had not encroached upon the suit land. He admitted that Tehsildar had visited the spot with his consent.
13. The perusal of the entire evidence shows that the plaintiff was owner-in-possession of the land bearing Khewat, ::: Downloaded on - 11/04/2023 20:32:43 :::CIS 10 Khatauni No. 223/256 min, Khasra No. 1423, measuring 0-10-15 .
bighas situated in Muhal Dharanda, Tehsil Sunder Nagar, District Mandi, H.P. and out of this land, he had sold Khasra No. 1423/1, measuring 0-2-2 bighas to the defendants and he retained the rest of the land bearing Khasra No. 1423/2, measuring 0-8-13 bighas.
The demarcation report, Ext. PW-3/A issued by the Tehsildar, who was appointed as Local Commissioner by the Court clearly reveals that old Khasra No. 1423 and new Khasra No. 1629/1423 and 1630/1423 kita-2 were demarcated. It has come in the demarcation report that the plaintiff had sold Khasra No. 1629/1423, measuring 0-2-2 bighas to the defendants and they have encroached the land belonging to the plaintiff bearing Khasra No. 1630/1423/1, measuring 0-1-19 bighas by constructing a shop thereon. The aforesaid demarcation report has never been challanged by the defendants at any point of time and no objections to the same have been filed.
14. Learned Senior Counsel for the appellants contended that demarcation carried out by the local commissioner on the spot is not in accordance with rules and procedure as well as the instructions issued by the Financial Commissioner and the learned trial Court has failed to appreciate that the local commissioner has ::: Downloaded on - 11/04/2023 20:32:43 :::CIS 11 gone beyond the terms of reference, for which, he was appointed .
by the Court. He further contended that while carrying out the demarcation, local commissioner has not associated the owners of the adjacent land, as such, demarcation cannot be said to be in accordance with the instructions issued by the Financial Commissioner. In 2000(1) Shimla Law Cases 192, Kamal Dev and another Vs. Hans Raj, it has been held that once instruction No. 1 which is contained in Chapter I-M of the Rules and Orders of the Punjab High Court Vol. I., as applicable to the state of Himachal Pradesh, is duly complied with, the fault found in compliance of other instructions will not vitiate demarcation proceedings as a whole. Relevant portion of the aforesaid judgment reads as under:-
"12. The answer to all the aforesaid questions depends on the interpretation of instructions and guidelines issued by the Financial Commissioner. Punjab in exercise of the powers under Section 100 of the Punjab Land Revenue Act (corresponding to Section 106 of the H.P. Land Revenue Act). These Instructions form part of the Rules and Orders of the Punjab High Court Vol. I. It is not disputed that Vol. 1 of the said Rules and Orders has in its application been adopted in Himachal Pradesh also. The instructions which are now contained in Chapter I-M of the said Rules and Orders reads as follows :
"I. If a boundary is in dispute the Field Kanungo should relay it from the village map prepared at the last settlement. If there is a map which has been made on the square system he should reconstruct the square in which the disputed land lies. He should mark on the ground on the lines of the ::: Downloaded on - 11/04/2023 20:32:43 :::CIS 12 squares the places where the map shows that the disputed boundary intersected those lines, and then to find the .
position of points which do not fall on the lines of the squares, he should with his scale read on the map the position and distance of those points from line of a square and then with a chain and cross staff mark put the position and distance of those points. Thus, he can set out all the points and boundaries which are shown in the map. But if there is not a map on the square system available, he should then find three points on different sides of the place in dispute as near to it as he can, and, if possible, not more than 200 Kadams apart, which are shown in the map and which the parties admit to have been disturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances when thus compared agree in all cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. He will then lay them out with the cross staff as before and test the work by seeing whether the distance from one of his marks to another is the same in the map. If there is only a small dispute as to the boundary between two fields, the greater part of which is undisturbed, then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map........ ..................................
18. The preparation and submission of the report as to the manner of carrying out the demarcation is the natural and lawful incident of orders of the Court. However, the instructions Nos. II to VI supra regarding the manner in which such report is to be prepared though necessary to be complied with as a matter of prudence and with a view to enable the Court to scrutinise the method adopted and proceedings carried out to demarcate the land and to arrive at a decision whether the demarcation was carried out correctly or not, but non-compliance of these instructions or any of them while preparing the report in itself will not vitiate the proceedings of the demarcation as a whole as the Court ::: Downloaded on - 11/04/2023 20:32:43 :::CIS 13 has the power to get the requisite clarification by examining the Revenue Officer who carried out the demarcation as and .
when objection(s) is raised by the aggrieved party to the proceedings of demarcation.
19. As a result what can be held is that once there has been proper compliance of the instruction No. I, the fault found in the compliance of other instructions will not vitiate the demarcation proceedings as a whole."
15. In the instant case, the perusal of the statement of PW-3, Pratap Singh, Tehsildar, to who was appointed as Local Commissioner, shows that the demarcation proceedings were carried out as per the law and the procedure as well as the instructions issued by the Financial Commissioner.He had taken permanent points A B C as shown in tatima, Ext. PW-3/B and had carried out the demarcation from the mussabi in the presence of both the parties. He also recorded the statements of the witnesses, Ext. PW-3/C, Ext. PW-3/D & Ext. PW-3/E and prepared tatima, Ext.
PW-3/B as per the factual position on the spot. As observed earlier, no objections to the demarcation report, Ext. PW-3/A have been filed on behalf of the defendants at any point of time. As the demarcation proceedings were carried out as per the law and the procedure as well as the instructions issued by the Financial Commissioner, the same have rightly been relied upon by the learned Courts below while decreeing the suit of the plaintiff. Since ::: Downloaded on - 11/04/2023 20:32:43 :::CIS 14 it has come in the evidence on record that the defendants have .
encroached upon the suit land, both the learned Courts below have rightly decreed the suit of the plaintiff by restraining the defendants permanenly not to interfere in any manner over the suit land and have also rightly decreed the suit for mandatory injunction by directing the defendants to demolish the encroached portion shown in tatima, Ext. PW-3/B in Khasra No. 1630/1423/1, measuring 0-1-19 bighas and hand over the vacant possession of the same to the plaintiff. Hence, the impugned judgments and decrees passed by both the Courts below cannot be said to be based upon misreading, misinterpreting and misconstruing the pleadings and evidence on record. Thus, substantial questions of law are answered accordingly.
16. No other point was urged before me.
17. In view of discussion aforesaid, the instant appeal, which is devoid of any merit, is dismissed.
Pending miscellaneous application(s), if any, shall stand disposed of.
( Sushil Kukreja ) Judge April 05, 2023 (raman) ::: Downloaded on - 11/04/2023 20:32:43 :::CIS