Himachal Pradesh High Court
Salig Ram vs Ved Parkash on 21 March, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.388 of 2005
Date of decision: 21.03.2017
.
Salig Ram ....Appellant-Plaintiff
Versus
Ved Parkash ..Respondent-Defendant
Coram
of
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?1 Yes.
For the Appellants: Mr.G.D. Verma, Senior Advocate with
rt Mr.B.C. Verma, Advocate.
For the Respondent Mrs.Ritu Raj Sharma, Advocate.
Sandeep Sharma,J.
This appeal has been filed by the appellant-
plaintiff against the judgment and decree dated 28.4.2005, passed by the learned District Judge, Shimla, H.P., affirming the judgment and decree dated 27.3.2004, passed by learned Civil Judge(Junior Division), Shimla, H.P., whereby the suit filed by the appellant-plaintiff seeking the relief of prohibitory injunction and damages has been dismissed.
2. Brief facts of the case, as emerged from the record, are that the appellant-plaintiff (herein after referred to as the `plaintiff'), filed a suit for permanent prohibitory injunction restraining the defendant from interfering in his suit land comprised in Khata No.41, Khatauni No.52, Khasra 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 2No.638/33/1, measuring 4.10 biswas, situated at Mauja Chakrail, Pargana Majhola, Tehsil and District Shimla (hereinafter referred to as the `suit land') and also sought .
damages to the tune of Rs.40,000/- from the defendant. It is averred by the plaintiff that he had purchased 41/97th shares in the suit land from Prabhu Ram and Nazroo Devi vide sale deed dated 21.5.1994. It is further averred by the of plaintiff that he occupied this land and had constructed a house, septic tank and two latrines over this land. It is further averred by the plaintiff that he has spent a sum of rt Rs.30,000/- on the construction of septic tank and two laterines. It is alleged by the plaintiff that the defendant has no right or interest, whatsoever, over the suit land, however, he has unlawfully and illegally destroyed the septic tank of the plaintiff on 5.3.2000 and also demolished latrine seats with a hammer, thereby causing wrongful loss to him to the tune of Rs.40,000/- in all. In the aforesaid background the plaintiff filed a Civil Suit before the learned trial Court.
3. Defendant, by way of filing written statement, refuted the claim of the plaintiff on the ground of maintainability, cause of action and estoppel. On merits, it is averred by the defendant that the plaintiff started raising construction over the land without getting it demarcated and in this process had covered more area of land under his construction than was purchased by him. It is further averred by the defendant that the plaintiff constructed septic ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 3 tank and latrines on a portion of land, which is being used as common passage by the owners and vendees. It has further been averred by the defendant that the plaintiff .
constructed latrines and septic tank on this common passage, which is in the shape of stair-case and has blocked it. Defendant, while denying all other allegations regarding demolition of latrines and septic tank and of plaintiff of suffering loss to the tune of Rs.40,000/-, prayed for the dismissal of the suit.
4. On the pleadings of the parties, the learned trial rt Court framed the following issues:-
"1. Whether the plaintiff is entitled to relief of permanent prohibitory injunction as prayed? OPP
2. Whether the plaintiff is entitled to relief of damages as prayed? OPP.
3. Whether the suit is not maintainable?
OPD
4. Whether the plaintiff has no cause of action? OPD.
5. Whether the plaintiff is estopped from filing the suit? OPD
6. Relief".
5. Learned trial Court vide judgment and decree dated 27.03.2004 dismissed the suit of the plaintiff for relief of permanent prohibitory injunction restraining the defendant from interfering in the suit land and also for damages to the extent of Rs.40,000/-.
6. Feeling aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 4 Court, whereby suit filed by the plaintiff was dismissed, appellant-plaintiff filed an appeal under Section 96 of the Code of Civil Procedure (for short `CPC') in the Court of .
learned District Judge, Shimla, who, vide impugned judgment and decree dated 28.04.2005, dismissed the appeal preferred by the plaintiff by affirming the judgment and decree passed by the learned trial Court. In the of aforesaid background, the present appellant-plaintiff filed this Regular Second Appeal before this Court, details whereof have already been given above.
7. rt This second appeal was admitted on the following substantial question of law:
"(1) Whether approach on the part of both the courts below in considering the subject matter of dispute has been erroneous and illegal and instead of considering the claim of plaintiff for grant of decree for permanent prohibitory injunction, the claim was taken for removal of encroachment over the suit land?
2. Whether the appellant is entitled for recovery of suit amount on account of damages as caused by the defendant to the septic tank and latrines of the plaintiff and in this regards the claims stands proved by damage report Ex.PW-
4/A prepared by Sh.H,.S. Bisht a retired Executive Engineer?
3. Whether Ex.Dx alleged compromise set up by the respondent is irrelevant for the purpose of determination of the dispute because this document is not relating to the dispute in the present suit?
4. Whether tatima Ex.PW-1/B report of expert Ex.PW-4/A and Ex.DX have been misread and misconstrued?
::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 55. Whether the courts below were required to appoint a Local Commissioner in order to ascertain the location and dismantling of the septic tank?"
.
8. I have heard learned counsel for the parties and gone through the record of the case.
9. Mr.G.D. Verma, learned Senior Counsel representing the appellant-plaintiff, vehemently argued that approach of both the Courts below, while considering the of dispute at hand, has been erroneous and illegal, as a result of which, erroneous/contrary findings have come on record rt to the detriment of plaintiff, who successfully proved on record, by leading cogent and convincing evidence, that defendant is interfering in the exclusive ownership and possession of the plaintiff. As per Mr.Verma, it was none of the case of the plaintiff that defendant encroached upon the land of the plaintiff, rather, plaintiff filed Civil Suit for injunction restraining the defendant from interfering in the ownership and possession of the plaintiff. With a view to substantiate his aforesaid argument, Mr.Verma, invited the attention of this Court to the evidence led on record by respective parties, be it ocular or documentary, to demonstrate that Courts below not only misread and misinterpreted the real point of controversy, but failed to appreciate the evidence in its right perspective.
10. On the other hand, Mrs.Ritu Raj Sharma, learned counsel appearing for the respondent-defendant, ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 6 supported the judgments passed by both the Courts below and vehemently argued that no interference, whatsoever, is warranted in the present facts and circumstances of the .
case, especially in view of the fact that both the Courts below have meticulously dealt with each and every aspect of the matter. She also urged that scope of interference by this Court is very limited, especially when two Courts have of recorded concurrent findings on the facts as well as law. In this regard, to substantiate her aforesaid plea, she placed reliance upon the judgment passed by Hon'ble Apex Court in rt Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264.
Substantial Question No.1:
11. This Court, with a view to ascertain the genuineness and correctness of the aforesaid submissions having been made by Mr.Verma vis-à-vis substantial question of law No.1, carefully perused the pleadings as well as evidence adduced on record by the respective parties, perusal whereof nowhere suggests that learned Courts below misread and mis-appreciated the material on record. Rather, close scrutiny of the impugned judgments passed by both the Courts below suggests that both the Courts below have carefully dealt with each and every aspect of the matter and by no stretch of imagination it can be said that the Courts below, while deciding the case at hand, mis-directed ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 7 themselves. Admittedly, plaintiff filed suit for permanent prohibitory injunction restraining the defendant from interfering in any manner with the ownership and possession .
of the plaintiff over the suit land, as described hereinabove, and also for recovery of an amount of Rs.40,000/- on account of damages.
12. In order to succeed, onus was on plaintiff to of prove on record by leading cogent and convincing evidence that he had constructed septic tank and latrines on the suit land comprising in Khasra No.638/33/1, measuring 4.10 rt biswas and the same was demolished by the defendant without any justification. It is admitted case of the plaintiff that he as well as defendant purchased shares, as described above, out of land of Khasra Nos.637/33 and 638/33 from original vendors Prabhu Ram and Nazaroo Devi. Though plaintiff claimed that land purchased by him is comprised of Khasra No.638/33/1, measuring 4 biswas and 10 biswansis, but admittedly, there is nothing on record suggestive of the fact that he had purchased specific portion of joint land from the previous owners.
13. Similarly, there is no evidence, be it ocular or documentary, available on record suggestive of the fact that land was partitioned between joint owners. Hence, plaintiff cannot be allowed to state that he is exclusive owner in possession of the suit land. Similarly, in view of aforesaid, plaintiff cannot be allowed to contend that any portion of his ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 8 land is encroached by the defendant unless specific portion of the land was identified or demarcated on the spot.
Plaintiff by placing on record Tatima Ex.PW-1/B made an .
attempt to prove that he purchased land bearing Khasra No.638/33/1, on which he constructed a house, septic tank and two latrines and, as such, defendant had no right, whatsoever, to interfere in the same. But perusal of Ex.PW-
of 2/B, i.e. demarcation report submitted by the Assistant Collector, clearly suggests that plaintiff himself was found to have encroached upon common passage used by the parties.
rt Aforesaid report, having been given by Assistant Collector, nowhere suggests that land of plaintiff was encroached by the defendant, as alleged by the plaintiff. Similarly, there is no evidence available on record suggestive of the fact that plaintiff being dis-satisfied with the aforesaid demarcation, having been carried out by Assistant Collector, ever laid any challenge to the same, meaning thereby that the same was accepted by the plaintiff without any demur. It may also be noticed that Tatima Ex.PW-1/B was prepared by Patwari Dalip Singh, who, while appearing as PW-1, stated that he had prepared Tatima Ex.PW-1/B on the spot on 10.3.2000 i.e. just five days after the alleged incident, but it nowhere suggests that any septic tank or latrines constructed over the land in Khasra No.638/33/1 were found in demolished condition. Aforesaid PW-1 Dalip Singh Patwari also admitted that plaintiff was found to be in possession of 4 biswas and ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 9 10 biswansis of land, whereas, as per plaintiff, he had only purchased 4 biswas of land. PW-2 Ludermani Kanungo, who had conducted demarcation of land of the plaintiff on .
20.4.2001, nowhere stated that some septic tank was found demolished on the spot.
14. Similarly, there is no Tatima annexed with the report Ex.PW-2/B reflecting exact possession of the plaintiff of over the join land. Rather, report, as referred above, clearly suggests that the plaintiff has purchased only 4 biswas of land, whereas he was found to be in possession of land rt measuring 4.10 biswas of land. Similarly, this Court also carefully perused demarcation report Ex.DW-1/A obtained by the plaintiff in Civil Suit having been filed by him against one Devi Ram, which also suggests that plaintiff himself encroached upon the land left for the path for constructing septic tank etc. Since no cogent or convincing evidence was led on record by the plaintiff suggestive of the fact that he is/was exclusive owner in possession of the land over which septic tank and latrines were constructed by him, Courts below rightly held him not entitled to the relief of prohibitory injunction.
15. Careful perusal of impugned judgments passed by both the Courts below nowhere suggests that Courts below misdirected themselves while adjudicating the subject matter of the dispute and erroneously and illegally considering the case of the plaintiff for removal of the ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 10 encroachment of the suit land instead of grant of decree for permanent prohibitory injunction. Substantial question of law is answered accordingly.
.
Substantial Question No.2:
16. Mr.Verma, while making submissions, as referred above, also strenuously argued that Courts below miserably failed to appreciate overwhelming evidence of adduced on record by the plaintiff that damage to the septic tank as well as latrine seats was caused by the defendant and as such he was entitled to be compensated. Mr.Verma, rt with a view to substantiate his aforesaid arguments, invited the attention of this Court to the damage report Ex.PW-4/A, prepared by Shri H.S. Bisht, a retired Executive Engineer.
However, aforesaid arguments having been made by Shri Verma also appear to be without any merit because admittedly this Curt was unable to lay its hand to any evidence, be it ocular or documentary, suggestive of the fact that defendant damaged or dismantled septic tank and latrines of the plaintiff constructed on the common passage.
Plaintiff himself stated before the Courts below that at the time of incident he was not present on the spot. It has come in his statement that septic tank and latrines were damaged by the defendant on 5.3.2000 in the presence of his wife, but strangely she was not brought to the witness box to prove aforesaid factum. Since plaintiff was not present on the spot, as admitted by him, no reliance, if any, could be placed ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 11 upon his version without there being any corroboration from person, who was actually present on the site.
17. PW-3 Plaintiff Salig Ram though claimed in his .
statement that septic tank and latrines were demolished by the defendant causing loss to him to the tune of Rs.40,000/-, but careful perusal of admission having been made by him in his cross-examination as well as photographs mark A-1 to A-
of 7 clearly suggests that plaintiff had constructed part of his septic tank beneath the stairs which admittedly are not over the land of the plaintiff nor he has constructed the same.
rt Rather, these stairs were got prepared by previous owners as common passage.
18. Statement of PW-4 H.S. Bisht, retired Executive Engineer, who prepared damage report Ex.PW-4/A, suggests that plaintiff had constructed part of his septic tank beneath the stairs. Moreover, perusal of Ex.PW-4/A also suggests that Shri H.S. Bisht visited the spot at the behest of plaintiff namely, Shri Salig Ram, who requested him to inspect his house and prepare estimate on the basis of present market value qua the damage caused by defendant Ved Parkash to septic tank and two WC seats of his house. Report, as referred above, clearly suggests that version put forth on behalf of Salig Ram plaintiff was incorporated in the report, wherein he stated that defendant namely Ved Parkash damaged septic tank and two WC seats of his house.
::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 1219. This Court, after carefully perusing the aforesaid report, has no hesitation to conclude that same was procured by the plaintiff on 16.3.2000 solely with a view to .
claim damages from the defendant. But, as has been observed above, there is no direct evidence adduced on record by the plaintiff suggestive of the fact that defendant caused damage to septic tank as well as two WC seats and as of such no help/benefit, if any, could be taken by the plaintiff on the basis of report furnished by PW-4 H.S.Bisht, who admittedly prepared report on the basis of version put forth rt by the plaintiff himself after visiting site on 11.3.2000 i.e. after one week of the alleged incident. Hence, this Court sees no illegality and infirmity in the findings returned by the Courts below qua the claim of damages of the plaintiff, which was based upon the damage report Ex.PW-4/A prepared by Mr.H.S. Bisht. Hence, substantial question of law is answered accordingly.
Substantial Questions No.3 & 4:
20. Mr.Verma, while inviting the attention of this Court to Ex.DX, strenuously argued that Courts below placed undue reliance upon the compromise deed dated 21.10.2001, wherein he allegedly compromised the matter with defendant subsequent to aforesaid incident. As per Mr.Verma, bare perusal of compromise deed would reveal that nothing with regard to septic tank or latrines were agreed upon between the parties, rather, it pertains to ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 13 boundary dispute between the parties and parties had agreed to withdraw the respective cases pertaining to boundaries.
Careful perusal of compromise i.e. Ex.DX clearly suggests .
that plaintiff entered into a compromise with Shri Devi Ram as well as defendant, wherein parties agreed to withdraw their cases against each other. Parties also agreed that there shall be a vacant space of 3 feet between the two houses, of meaning thereby that the parties agreed not to raise any kind of construction on the land measuring 3 feet existing between the house of plaintiff as well as defendant.
21. rt True, it is that compromise deed, as referred above, nowhere suggests that there is mention, if any, with regard to septic tank and two latrines but, if compromise is read in its entirety, especially the background in which it came into existence, it can be safely concluded that after institution of present lis by the plaintiff against the defendant as well as another suit having been filed by Shri Devi Ram against the plaintiff, parties agreed to resolve the matter amicably. Plaintiff himself in his cross-examination admitted that earlier suit was instituted by him against his neighbour Devi Ram, wherein he had obtained demarcation report Ex.DW-1/A, perusal whereof suggests that plaintiff was found to have encroached upon the land left for path by constructing septic tank etc.
22. This Court, after specifically seeing the background of compromise, sees no force much less ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 14 substantial in the arguments having been made by Shri Verma, learned Senior Counsel representing the appellant, that compromise Ex.DX has no relevance for the purpose of .
determination of dispute between the parties and as such sees no illegality and infirmity in the findings returned by the Courts on the basis of document Ex.DX. Similarly, this Court sees no merit in the contention of Shri Verma that of Courts below misread and mis-construed Tatima Ex.PW-1/B and report of expert Ex.PW-4/A, effect of which has already been dealt with by this Court while answering aforesaid rt substantial questions of law. Hence, both the aforesaid substantial questions of law are answered accordingly.
Substantial question No.5:
23. While exploring answer to substantial question of law No.5, this Court could lay its hand to relevant portion of ground-(xi) of the appeal, which is reproduced hereinbelow:-
"(xi) ... ... ... ... ... ...As a matter of fact, there was no dispute about the identity and boundaries of the respective plots of the parties. The fact of the matter is that since Respondent caused damage to the properties of the plaintiff as detailed in the suit, therefore, claim has been set up for recovery of amount of damages and also a prayer was made that the Respondent should be restrained from committing acts of interference and damages."::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 15
24. It is own case of the plaintiff that there was no dispute about the identity and boundaries of the respective plots of the parties, rather case of the plaintiff is/was that .
since respondent caused damage to the property of the plaintiff, he is entitled for the recovery of amount of damages, as claimed in the plaint by the plaintiff. Moreover, plaintiff, with a view to prove his claim, placed on record demarcation of report conducted on spot by Assistant Collector i.e. Ex.PW-
2/B, wherein no land of plaintiff was found under the encroachment of the defendant. Rather, plaintiff's own rt witness Patwari Dalip Singh admitted that the plaintiff was in possession of 4.10 biswas of land, whereas, as per own case of plaintiff, he has purchased only 4 biswas of land, meaning thereby that he himself covered more area of land under construction than was actually purchased by him.
Similarly, this Court finds that apart from above, there was another demarcation report Ex.DW-1/A available on record suggestive of the fact that the plaintiff himself encroached upon the land left for the path for constructing septic tank etc. Hence, in view of above, this Court is not in agreement with the contention of Shri G.D. Verma, learned Senior Counsel representing the plaintiff, that the Courts below ought to have appointed Local Commissioner in order to ascertain the location and dismantling of the septic tank.
Since there was no boundary dispute, if any, between the parties, as admitted by the plaintiff, there was no occasion ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 16 for the Courts below to appoint Local Commissioner, more particularly when two demarcation reports in the shape of Ex.PW-4/A and Ex.DW-1/A were available on record .
suggestive of the fact that the plaintiff himself encroached upon the land left for path by constructing septic tank and latrines etc. It may also be observed that there is no evidence available on record that the plaintiff, being of aggrieved, if any, with the aforesaid demarcation report, ever laid any challenge to the same in appropriate proceedings under law. Hence, substantial question is answered accordingly.
rt
25. This Court is fully satisfied that both the Courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever, in the present matter. Since both the Courts below have returned concurrent findings, which otherwise appear to be based upon proper appreciation of evidence, this Court has very limited jurisdiction/scope to interfere in the matter. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, to case supra, wherein the Court has held as under:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of ::: Downloaded on - 15/04/2017 22:02:45 :::HCHP 17 law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that .
declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse.
In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
of (p.269)
26. In the instant case, learned Senior Counsel representing the appellant-plaintiff was unable to point out rt any perversity, which could persuade this Court to interfere in the concurrent findings of fact and law recorded by the Courts below.
27. Consequently, in view of detailed discussion made hereinabove, this Court is of the view that there is no illegality and infirmity in the judgment and decree passed by the Courts below, which are based upon proper appreciation of evidence, be it ocular or documentary, adduced on record.
Hence, the present appeal fails and is dismissed accordingly.
There shall be no order as to costs.
28. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.
March 21, 2017 (Sandeep Sharma)
(aks) Judge
::: Downloaded on - 15/04/2017 22:02:45 :::HCHP