Himachal Pradesh High Court
Kishori Lal vs Roshan Lal & Others on 21 June, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 363 of 2007.
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Reserved on : 24.05.2017.
Decided on : 21st June, 2017.
Kishori Lal .....Appellant/Plaintiff.
Versus Roshan Lal & others Coram:
r to.....Respondents/Defendants.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes For the Appellant: Mr. N.K. Thakur, Senior Advocate with Mr. Divya Raj Singh, Advocate.
For the Respondents: Mr. Chander Sekhar Shama, Advocate, for respondents No.1 to 3.
Nemo of respondents No.4 to 8.
Sureshwar Thakur, Judge.
The plaintiff instituted a suit against the defendants, claiming therein that a decree for permanent 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 24/06/2017 23:58:56 :::HCHP
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prohibitory injunction being pronounced against the defendants. The suit of the plaintiff stood decreed by the learned trial Court. In an appeal carried therefrom by the defendants before the learned First Appellate Court, the latter Court allowed the appeal, whereupon, it dis-
concurred with the verdict recorded by the learned trial Court. In sequel thereto, the plaintiff/appellant herein is driven to institute the instant appeal herebefore.
2. Briefly stated the facts of the case are that the plaintiff is owner in possession of the land comprising khewat No.20 min, Khatauni No.22, khasra No.347,measuring 1 kanal 14 marlas as entered in the jambandi for the year 1984-85 situated in Mahal Dohgi Chikli, Mauja Kotla, Tehsil Bangana, District Una, H.P. The defendants are alleged to have threatened the plaintiff to divert the natural flow of water from its original course towards the land of the plaintiff comprising in khasra No.347. The defendants are also alleged to have ::: Downloaded on - 24/06/2017 23:58:56 :::HCHP ...3...
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threatened to cut the trees of sheesham, Simbal and Banana which are in possession of the plaintiff to which they have no right, title or interest. Hence, the suit.
3. The defendants contested the suit and filed written statement. In their written statement, the defendants have taken preliminary objections inter alia cause of action, estoppel, maintainability and locus standi. On merits, the defendants have alleged that they have procured the demarcation of the suit land by the revenue authorities for sanctification of the plaintiff but the plaintiff under the garb of this stay order wants to cut trees from khasra No.343 which is adjacent to khasra No.347 and wants to divert the natural flow of water towards khasra No.343 which is highly objectionable.
The present suit has been filed by the plaintiff in order to harass the defendants.
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4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the plaintiff is entitled for the the relief of permanent and mandatory injunction, as alleged?OPP
2. Whether the plaintiff has no cause of action, locus standi and suit is not maintainable, as alleged?OPD.
3. Whether the plaintiff is estopped from filing the present suit by his act and conduct?
OPD.
4. Relief.
5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom by the defendants/respondents herein, before the learned First Appellate Court, the latter Court allowed the appeal and reversed the findings recorded by the learned trial Court.
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6. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal before this Court, wherein he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 29.05.2009, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:-
1. Whether the impugned judgment and decree of the learned lower appellate Court is wrong, illegal, vitiated on account of misconstruction, mis reading of Ex. P-2 and Ex. PW2/A.
2. Whether the report of the Local Commissioner, more particularly, when the Local Commissioner withstood that test of cross-examination, can be set aside simply on the ground that the Local Commissioner has no personal knowledge of the suit land?
Substantial questions of Law No.1 and 2:
7. Khasra No.347 is the suit khasra number.
Uncontrovertedly, the land of the defendants is located ::: Downloaded on - 24/06/2017 23:58:56 :::HCHP ...6...
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above the land of the plaintiff. In proof of the defendants' encroaching upon the suit khasra number also in proof of theirs diverting the natural flow of water from its original course hence begetting its flowing onto the suit land, thereupon, truncating besides encroaching upon it, the plaintiff had depended upon a report of the Local Commissioner, report whereof is comprised in Ex.PW2/A. The learned trial Court imputed sanctity to the report of the Local Commissioner, on anvil of "it" being in consonance with Ex.P-2, exhibit whereof is a copy of the musabi appertaining to the suit property, thereupon, it decreed the suit of the plaintiff. Contrarily, the learned First Appellate court disimputed credence to Ex. PW2/A also it had concluded that it being not in consonance with Ex. P-2, conclusion whereof stood anchored upon an admission existing in the cross-examination of the Local Commissioner concerned with respect to his not possessing at the relevant time "a" copy of the relevant ::: Downloaded on - 24/06/2017 23:58:56 :::HCHP ...7...
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musabi also upon his making an admission therein that he did not in his relevant exercise "solicit" the assistance of any revenue officer. Moreover, the learned First Appellate Court had proceeded to not impute sanctity to Ex.PW2/A, on the score of his admitting in his cross-
examination that he did not hold any personal knowledge about the suit property, whereupon, r it concluded that hence his standing disabled to hold any knowledge with respect to the location of the suit khasra number rendered him also obviously disabled to possess the requisite knowledge in respect of its condition prior to his visiting the relevant khasra number or at the time of his visiting it, with a concomitant effect of his being defacilitated to make any echoings therein with respect to any alteration occurring in the status/position of the suit khasra number from its hitherto condition.
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8. Be that as it may, the learned counsel appearing for the appellant, has continued to with much vigour contend before this Court that with the Local Commissioner concerned standing subjected to a rigorous cross-examination by the learned counsel for the defendants, "solitarily", thereupon, it was untenable for the learned First Appellate Court to rip apart the sanctity of his report comprised in Ex.PW2/A. The aforesaid contention addressed before this Court by the learned counsel appearing for the appellant "cannot" be construed to be holding any vigour, given the Local Commissioner, as aptly concluded by the learned First Appellate Court admitting in his cross-examination that he did not at the relevant time of his conducting the relevant exercise with respect to the suit khasra number(s), hold the "musabi" borne on Ex.P-2, besides his also admitting therein that he "did not" hold any personal knowledge with respect to the suit land. In ::: Downloaded on - 24/06/2017 23:58:56 :::HCHP ...9...
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addition with his admitting that he did not in the relevant exercise conducted by him solicit the services of the Revenue Officer, hence, constrained it to conclude that his report did not hold any efficacy, for rendering affirmative findings on the relevant issue. Consequently, the mere factum of the counsel for the defendants subjecting the Local Commissioner, to a rigorous cross-
examination, would not per se render Ex.PW2/A to hold any validity, for rendering affirmative findings on the apposite issues, significantly, when for his report comprised in Ex.PW2/A, to acquire sanctity, it was enjoined to be prepared by the Local Commissioner concerned, with the latter at the relevant time possessing the relevant musabi, musabi whereof, he admits in his cross-examination to be not held by him at the relevant time of his conducting the apposite exercise. In aftermath, with Ex.PW2/A being surmisally prepared besides it obviously being prepared with a mere ::: Downloaded on - 24/06/2017 23:58:56 :::HCHP ...10...
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estimation with respect to the location of the suit khasra number, being made by the Local Commissioner concerned, it hence cannot be fastened with any legitimacy, for settling findings on the relevant issue.
Corollary of the aforesaid inference, is that it was compatibility rinter to inappropriate for the learned trial Court to collate or draw se Ex.PW2/A with the relevant enunciation(s) occurring in the musabi borne on Ex.P-2, predominantly, when the Local Commissioner concerned did not at the relevant time hold its possession, thereupon, reiteratedly, any compatibility inter se both as stand drawn by the learned trial Court is grossly erroneous, rendering hence its verdict, whereby it decreed the suit of the plaintiff, to be grossly flawed, whereupon, the reversal of its verdict by the learned First Appellate Court does not suffer from any perversity.
9. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court ::: Downloaded on - 24/06/2017 23:58:56 :::HCHP ...11...
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are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Accordingly, both the substantial questions of law are answered in
10. to favour of the respondents and against the appellant.
In view of above discussion, there is no merit in the instant appeal, which is accordingly dismissed.
Consequently, the impugned judgment and decree rendered by the learned First Appellate Court in Civil Appeal No. 141 of 2001 on 3.12.2005 is maintained and affirmed. All pending applications also stand disposed of.
No order as to costs. Records be sent back.
(Sureshwar Thakur) 21 June, 2017.
st Judge.
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