Himachal Pradesh High Court
Sunka And Others vs Ram Dhan And Others on 22 May, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP No.4392 of 2016 in RSA No.109 of 2006.
.
Reserved on : 26.4.2017.
Decided on : 22nd May, 2017.
Sunka and others ....Appellants-Non-applicants.
Versus Ram Dhan and others. ...Respondent-applicant Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the applicants : Mr. Ashwani K. Sharma, Sr. Advocate
r with Mr. Jiwan Kumar, Advocate.
For the non-applicants : Mr. Rajnish K. Lall, Advocate.
Chander Bhusan Barowalia, Judge.
The present application has been maintained by the applicants under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, for leading additional evidence. As per the appellants/applicants, the impugned judgment and decree passed by the learned District Judge, Bilaspur, (H.P), in Civil Appeal No.98 of 2003, titled Sunka & others vs. Bhagat Ram, dated 18.11.2005, whereby dismissing the appeal and affirmed the judgment and decree passed by the learned Court below. It is averred in the application that the defendants have suffered a decree as regards demolition of the construction raised by them over the suit land comprised in Khasra No.164. The appellants have suffered a decree for possession with 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 25/05/2017 00:00:32 :::HCHP 2respect to Khasra No.164 and 167 over a portion of which the appellants/applicants have raised the construction of their residential houses many years back. At the time of partition, if any land is found in .
possession of the applicants in excess, the same can be conveniently adjusted by way of exchange or otherwise and the respondents can be granted equivalent land or more land belonging to the applicants which is situated in adjoining vicinity to the suit land. The demolition of residential houses of the applicants/appellants raised by them after spending their life time earnings over the same shall not serve any beneficial purpose of anyone, but the same shall result in causing extreme prejudice to the applicants. The judgment sought to be produced and proved on record by way of additional evidence and prayed that no harm, loss or prejudice would be caused to the non-
applicants, in case attested copy of the judgment is allowed to be placed on record. The application is duly supported with an affidavit.
2. Reply to the application has been filed and it is averred that no case is made out for leading additional evidence. Even otherwise also, the appellants are not entitled to any indulgence from this Court or entitled to any sympathetic consideration in view of the fact that the decree for possession has been passed against the appellants and the appellants have made construction in disobedience to the orders passed by this Court on Khasra No.164 and 167, for which proceedings under Section 39 Rule 2A of the Code of Civil Procedure ::: Downloaded on - 25/05/2017 00:00:32 :::HCHP 3 have been initiated. The appellants had continued with the construction despite the stay order and have constructed a room, bathroom and latrine on the land in dispute. In Civil Suit No.127/1 of 2000, titled .
Bhagat Ram vs. Nikki, pending before the learned Court below, Sohan Lal, Naib Tehsildar (Retired) was appointed as Local Commissioner and who has found that the appellants, namely, Nikku, Sunka and Govinda, have raised construction of a room on Khasra No.167/1. On merits, it has been contended that the appellants are not entitled to lead additional evidence and prayed that application deserves to be dismissed.
3. Heard. After hearing learned counsel appearing on behalf of the parties, this Court finds that the evidence which now the applicant wants to adduce is neither required by this Court for adjudication of the case nor is material to adjudicate the present lis.
After going through the judgment passed by this Court, it has been held that the construction of the defendants, as depicted in Ex.PW1/C shall not be demolished and shall not form part of any partition proceedings.
It will be open to the parties to establish their rights in accordance with law by institution proceedings for partition in a Court of competent jurisdiction. None of the parties shall raise construction on the remaining portion of the suit land till partition proceedings are complete.
That being so, the parties can always agitate their claim in a competent Court of law, but as far as the present case is concerned, the judgment ::: Downloaded on - 25/05/2017 00:00:32 :::HCHP 4 is not at all applicable to the facts and circumstances of the case, as the plaintiff has already proved that he is owner-in-possession of the suit land, this Court finds that the judgment is not at all required for .
adjudication of the present case.
4. Resultantly, the application being devoid of any merit is dismissed. No order as to costs.
(Chander Bhusan Barowalia) nd 22 May, 2017 Judge (CS) ::: Downloaded on - 25/05/2017 00:00:32 :::HCHP