Himachal Pradesh High Court
Ramesh Chand & Others vs Roop Singh (Since Deceased) on 30 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.446 of 2007.
.
Judgment Reserved on: 28.11.2016
Date of decision: 30.11.2016
Ramesh Chand & Others ....Appellants-Defendants
Versus
Roop Singh (since deceased) ...Respondents-Plaintiffs
Through his LRs.Smt.Pushpa
of
Devi & Ors.
Coram
rt
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?1 Yes.
For the Appellants: Mr.Neeraj Gupta, Advocate.
For the Respondents: Mr.Ajay Sharma, Advocate.
Sandeep Sharma,J.
This appeal has been filed by the appellants-
defendants (hereinafter referred to as the `defendants') against the judgment and decree dated 29.12.2006, passed by learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, District Kangra, H.P. affirming the judgment and decree dated 28.9.2002, passed by learned Sub Judge 1st Class, Court No.2, Dehra, District Kangra, H.P., whereby the suit filed by the respondent-plaintiff (hereinafter referred to as the `plaintiff') has been decreed.
1Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 21:39:03 :::HCHP 22. Briefly stated facts, as emerged from the record, are that the respondent-plaintiff claimed himself to be owner in possession alongwith other co-owners of the suit land. It is .
averred by the plaintiff that the defendants have got no right or title over the land comprised in Khata No.13 min, Khatauni No.24 min, Khasra No.207, area measuring 0-07- 02 hects. situated in Mohal Thal, Mauza Guler, Tehsil Dehra, of District Kangra as per Jamabandi for the year 1991-92, (hereinafter referred to as the 'suit land'), but they are rt threatening to interfere in the peaceful ownership and possession of the plaintiff and are also threatening to throw the water of their water taps and rainy water in the suit land.
It is further averred by the plaintiff that the defendants are also threatening to carve out a path to pass through the suit land without any right, title or interest. It is further averred by the plaintiff that during the pendency of the suit, defendant Ramesh Chand encroached upon part of the suit land comprised in Khasra No.207/1, area measuring 0-00-36 hects. and defendants No.2 and 3 have also encroached upon part of suit land i.e. land comprised in Khasra No.207/2, measuring 0-00-40 hects., which was also found during demarcation taken by the plaintiff on 7.2.1995 and this plea of possession was added by way of amendment to the plaint. It is further averred by the plaintiff that the defendants having encroached upon part of suit land and ::: Downloaded on - 15/04/2017 21:39:03 :::HCHP 3 threatening to throw dirty water as well as rainy water towards his plaintiff, the suit be decreed.
3. Defendants by way of filing written statement .
raised various preliminary objections qua cause of action, maintainability, estoppel and limitation. It is averred by the defendants that allegations of the plaintiff regarding throwing of dirty and rainy water towards the suit land are wrong. It of is further averred that there is no outlet for the natural flow of rainy water and that the parties are agriculturists and rt have got every right to use the passage on suit land from over the Maind (hedge) of suit land as per their custom and by way of easement of necessity. The defendants have also averred that they have neither cut nor removed any trees nor they have any intention to change nature of suit land. It is further averred by the defendants that they have got their own water tap for the last more than 20 years and no irreparable loss had ever been caused to the plaintiff. They have also denied the alleged encroachment upon the part of suit land and it has been averred that the report of the Local Commissioner, who was Field Kanungo, is not in accordance with rules. In the aforesaid background, the defendants prayed for the dismissal of the suit.
4. By way of replication, plaintiff while denying the allegations made in the written statement, re-affirmed and reasserted the stand taken in the plaint.
::: Downloaded on - 15/04/2017 21:39:03 :::HCHP 45. Learned trial Court on the basis of aforesaid pleadings, framed the following issues:-
"1. Whether the plaintiff is entitled to .
the relief of injunction? OPP.
2. Whether the plaintiff is entitled to the relief of possession ? OPP.
3. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD.
of
4. Whether the defendants are using the Meand of the suit land as per custom ? OPD.
4-a Whether the suit is not
rt maintainable in the present form?
OPD.
5. Relief."
6. The learned trial Court on the basis of the evidence adduced on record by the respective parties, decided all the issues in favour of the plaintiff and against the defendants and decreed the suit of the plaintiff for permanent prohibitory injunction.
7. Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 28.9.2002, passed by learned trial Court, respondents/defendants filed an appeal in the Court of learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, i.e., Civil Appeal No.41/G/05/03, however fact remains that learned Additional District Judge, Fast Track Court, Kangra at Dharamshala vide judgment and decree dated 29.12.2006 ::: Downloaded on - 15/04/2017 21:39:03 :::HCHP 5 dismissed the appeal preferred by the appellants-defendants and affirmed the judgment and decree, dated 28.9.2002, passed by learned trial Court.
.
8. In the aforesaid background, present appellants-
defendants being aggrieved and dis-satisfied with the judgment and decree passed by learned trial Court as affirmed by learned appellate Court approached this Court by of way of instant Regular Second Appeal, praying therein for quashing and setting-aside the judgment and decree dated rt 28.9.2002 passed by learned trial Court as affirmed by learned appellate Court vide judgment dated 29.12.2006.
9. This Regular Second Appeal was admitted on the following substantial questions of law:-
"(1) Whether both the Courts below have committed grave error of law and jurisdiction in relying upon report Ex.PW-1/B and Tatima PW-1/C which was not proved in accordance with law by producing the Field Kanungo who allegedly carried out the demarcation and Patwari who prepared the Tatima. Merely the fact that the file of demarcation was consigned for want of presence of the defendants-appellants vide Order Ex.PW-1/A, could have been sufficient to hold the said documents admissible in evidence?
(2) Whether the Trial Court has wrongly dismissed the application filed by defendants-appellants for demarcation? Have not both the Courts below ignored the provisions of Chapter I-M of High Court Rules and Orders whereby it was imperative on both the Courts below to have appointed the Local ::: Downloaded on - 15/04/2017 21:39:03 :::HCHP 6 Commissioner for demarcation of respective boundaries of the parties as the dispute between the parties in the suit was mainly the boundary dispute?
.
(3) Whether both the Courts below have wrongly rejected the plea of the customary right of using the maind of the neighbour for carrying out the agricultural production which fact has duly been acknowledged in the Judicial pronouncements of this Hon'ble Court?
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10. Mr.Neeraj Gupta, learned counsel representing the appellants-defendants, vehemently argued that the rt judgment passed by both the Courts below are not sustainable as the same are not based upon correct appreciation of evidence available on record. Rather, the same are based on mere conjecture and surmises and as such same deserves to be quashed and set aside.
11. Mr.Gupta, further contended that both the Courts below have acted with material illegality and irregularity while placing reliance upon demarcation Report Ex.PW-1/B and its Tatima Ex.PW-1/C to conclude that appellant-defendant encroached upon the suit land as alleged in the plaint. Mr.Gupta strenuously argued that the bare perusal of demarcation report itself suggest that demarcation was not conducted in accordance with law and instructions of Financial Commissioner as well as High Court Rules and Orders and as such same could not be taken into ::: Downloaded on - 15/04/2017 21:39:03 :::HCHP 7 consideration by the Courts below while decreeing the suit of the plaintiff.
12. Apart from above, Mr.Gupta, further contended .
that both the Courts below have miserably failed to take note of the fact that demarcation report Ex.PW-1/B and Tatima Ex.PW-1/C could not be read in evidence since Field Kanungo, who allegedly carried out demarcation, was never of produced as a witness before the Court and as such by no stretch of imagination demarcation report placed on record rt by the plaintiff could be deemed to have been proved in accordance with law. Mr.Gupta also contended that since Ex.PW-1/B and Ex.PW-1/C were inadmissible evidence and as such order of Assistant Collector consigning the file to record room was of no consequence and as such both the Courts below acted beyond their jurisdiction while placing reliance upon inadmissible evidence to pass decree of possession against defendants-appellants and as such same deserves to be quashed and set aside.
13. Mr.Gupta, while referring to the judgment passed by both the Courts below, invited the attention of this Court to the fact that on two occasions defendants-
appellants had moved an application under Order 26 Rule 9 of the Code of Civil Procedure (hereinafter referred to as `CPC') praying therein for appointment of Local Commissioner, keeping in view the boundary dispute ::: Downloaded on - 15/04/2017 21:39:03 :::HCHP 8 involved in the matter, but on both the occasions, Courts below, without assigning plausible reason, dismissed the same and as such great prejudice has been caused to the .
appellants. Mr.Gupta further stated that both the Courts below ought to have appointed Local Commissioner in terms of prayer made in application under Order 26 Rule 9 CPC, keeping in view the dispute being boundary dispute as of defined under Chapter-IM of the High Court Rules and Orders so that controversy at hand could be determined rt effectively for all times to come. Learned lower appellate Court in mechanical manner proceeded to affirm the judgment and decree of the trial Court, which was solely based upon demarcation report placed on record by the plaintiff, which at no point of time was proved in accordance with law. While concluding his arguments, Mr.Gupta also argued that both the Courts below committed material illegality and irregularity while deciding the issue of easement of necessity as raised by the plaintiff, especially in view of various pronouncements made by this Court that agriculturists in order to cultivate their fields, to take their cattle and to carry out agricultural operations during the season are entitled to use maind of neighbourers.
14. Mr.Gupta, placed reliance on the judgments of our own High Courts in State of H.P. vs. Laxmi Nand and Others, 1992(2) Sim.L.C. 307, Kamal Dev and another ::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 9 vs. Hans Raj, 2000(1) Shim.L.C. 192, Shri Rattan Chand sn of Lachho Ram vs. Pushpa Devi widow of Shri Balwant Singh and others, 2014 ILR HP 145, and .
Krishan Singh alias Kishan Singh vs. Balram Singh, 2010(3) Shim.L.C. 548, to suggest that demarcation, if not carried out in accordance with law/rules, same cannot be read in evidence and this Court by molding relief can order of for demarcation even at this stage for settling the boundary dispute between the parties.
15. rt In the aforesaid background, Mr.Gupta prayed for acceptance of the appeal after setting aside the judgment and decree passed by both the Courts below.
16. Mr.Ajay Sharma, learned counsel representing the respondent-plaintiff supported the judgment passed by both the Courts below. Mr.Sharma strenuously argued that perusal of judgments passed by both the Courts below suggest that the same are based upon correct appreciation of evidence adduced on record by the plaintiff and as such there is no scope of interference, whatsoever, of this Court, especially in view of concurrent findings of fact and law recorded by both the Courts below. Mr.Sharma while referring to the judgment passed by both the Courts below, forcefully contended that there is overwhelming evidence adduced on record by the plaintiff suggestive of the fact that defendants encroached upon the suit land and caused ::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 10 nuisance/interference by throwing dirty water. While refuting the contention put forth on behalf of counsel representing the appellants-defendants that Courts below .
wrongly placed reliance on the demarcation report Ex.PW-
1/B, Mr.Sharma vehemently argued that since defendants started encroaching upon certain portion of suit land during the pendency of suit, respondent-plaintiff applied for of demarcation which was conducted on 7.2.1995 in the presence of the parties including appellants-defendants.
rt While inviting attention of this Court to demarcation report Ex.PW-1/B, Mr.Sharma contended that bare perusal of the same suggests that demarcation of the site was conducted in accordance with law and instructions of Financial Commissioner as well as High Court Rules and Orders and as such there is no illegality and infirmity in the judgment passed by both the Courts below. To substantiate aforesaid arguments, he also invited the attention of this Court to the statement, especially cross-examination conducted on the defendant, who appeared as DW-1, wherein he himself admitted that demarcation was conducted in his presence by the Field Kanungo on the basis of Mussabi and before conducting demarcation, he ascertained/fixed three pucca points. Mr.Sharma further contended that after carrying out demarcation by Field Kanungo, same was confirmed by Tehsildar and no objection, whatsoever, at any point of time ::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 11 was ever filed by the appellants-defendants before Kanungo, as a result of which, same was confirmed by him.
17. Mr.Sharma, 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. He also urged that scope of of interference by this Court is very limited especially when two Courts have recorded concurrent findings on the facts as well rt as law. In this regard, to substantiate his aforesaid plea, he placed reliance upon the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264.
18. I have heard learned counsel for the parties and gone through the record of the case.
Question No.1
19. In the present case, respondent-plaintiff filed suit for permanent prohibitory injunction and for possession claiming himself to be the owner in possession alongwith other co-owners of the suit land. Plaintiff also claimed that he alongwith his brother Kashmir Singh is in exclusive possession over the suit land and defendants, who have no right, title and interest over the suit land, were threatening to interfere in the peaceful ownership and possession of the plaintiff and were also threatening to throw the water from ::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 12 their water taps and rainy water in the suit land. During the pendency of the suit, defendant Ramesh Chand encroached upon part of suit land comprised in Khasra No.207/1, area .
measuring 0-00-36 hects., whereas defendants No.2 and 3 encroached upon part of suit land comprised in Khasra No.207/2, measuring 0-00-40 hects., therefore, plaintiff applied for demarcation which was carried out on 7.2.1995 of by the Field Kanungo. After aforesaid demarcation having been carried out by Field Kanungo, plaintiff amended his rt suit, whereby he raised plea of possession by alleging that defendants have encroached upon part of the suit land and threatening to throw dirty water as well as rainy water towards the land of plaintiff. Plaintiff, with a view to establish his ownership and possession qua the suit land, tendered in evidence documents Ex.P-1 and Ex.P-2, which are the copies of Jamabandi for the year 1991-92 and Aks Sazra Kistbar. Similarly to prove encroachment over the suit land plaintiff placed on record demarcation report given by Kanungo i.e. Ex.PW-1/B. Learned Courts below, while placing reliance upon demarcation report Ex.PW-1/B, Tatima attached with the same Ex.PW-1/C as well as statement of parties, who were present on the spot, i.e. Ex.PW-1/D, came to the conclusion that the defendants were found to be in possession of part of the suit land i.e. some portion of the suit land bearing Khasra No.207/1 was encroached by ::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 13 defendant No.1, whereas land shown in Khasra No.207/2 was found to be encroached upon by defendants No.2 and 3.
20. Learned counsel representing the appellants-
.
defendants vehemently argued that no reliance, whatsoever, could be placed upon aforesaid demarcation report Ex.PW-
1/B and Tatima attached with the report Ex.PW-1/C by Courts below, while decreeing the suit especially in view of of the fact that same was not proved in accordance with law. As per Mr.Gupta, since Field Kanungo, who had carried out rt demarcation, was not produced as a witness by the plaintiff, defendants had no opportunity, whatsoever, to cross-
examine this witness as a result of which great prejudice has been caused to the defendants. Had defendants got the opportunity to cross-examine the Field Kanungo, who had carried out the demarcation, the defendants would have got opportunity to prove on record that demarcation was not carried out in accordance with law as well as instructions of Financial Commissioner and High Court Rules and Orders.
21. The aforesaid argument, having been made by Mr.Gupta, needs to be rejected out rightly. It is undisputed that demarcation report dated 7.2.1995 was procured by respondent-plaintiff during the pendency of the suit. It is also undisputed that after procuring the aforesaid demarcation report, plaintiff amended his suit, whereby plea of possession was added by way of amendment to the plaint.
::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 14It is not understood that if demarcation report dated 7.2.1995 was not in accordance with law what prevented the defendants from filing objection, if any, to the demarcation .
report allegedly not carried out in accordance with law by the Field Kanungo. Though defendants in reply to the amended written statement have stated that demarcation report dated 7.2.1995 is not in accordance with law but it nowhere of suggest that in what manner demarcation report is not in accordance with law. Mere bald allegation that demarcation rt report is not in accordance with law may not be sufficient to conclude that demarcation was not carried out in accordance with law.
22. It is also not disputed, as emerged from the record, that at the time of demarcation wife of defendant No.1 as well as other defendants were present and their statements were also recorded by the Local Commissioner, who had carried out the demarcation. As has been noticed above, DW-1 in his cross-examination has admitted that demarcation dated 7.2.1995 was carried out by Field Kanungo on the basis of Mussabi after ascertaining three pucca points, which itself suggest that demarcation dated 7.2.1995 was carried out in accordance with law after summoning of the effected parties including all the defendants. It also emerge from the record that subsequent to demarcation carried out on 7.2.1995, the report was ::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 15 affirmed by Naib Tehsildar on 30.9.1995 Ex.PW-1/A. Perusal of Ex.PW-1/A i.e. order dated 30.9.1995, passed by Tehsildar, suggests that despite there being sufficient .
opportunities, nobody, including the defendants, came forward to file objection, if any, to the demarcation report dated 7.2.1995 and as such same was accepted by Tehsildar.
Similarly, perusal of document Ex.PW-1/D suggests that the of statement of parties, were recorded at the time of demarcation. Perusal of aforesaid document clearly suggests rt that defendants Mukesh Kumar and Inder Singh were present and the wife of defendant namely Vijay Guleria was also present.
23. This Court, with a view to ascertain the genuineness and correctness of submissions having been made by Mr.Gupta with regard to the correctness and validity, if any, of demarcation report Ex.PW-1/B, perused demarcation report dated 7.2.1995, which clearly suggests that same was carried in accordance with law in the presence of all the parties. Local Commissioner, who carried out demarcation, has categorically reported that demarcation is being carried out on the basis of Mussabi and there were three pucca points fixed before conducting the demarcation and hence this Court sees no force in the contention put forth on behalf of the appellants-defendants that the demarcation was not carried out in accordance with law and ::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 16 as such same could not be considered in evidence by the Courts below.
24. As far as non-examination of Local .
Commissioner, who carried out demarcation, is concerned, it is settled law that party who assail the demarcation report is to examine the Local Commissioner. In this regard reliance is placed upon the judgment of the Punjab & Haryana High of Court in Raja Ram vs. Ram Sarup, 1979 P.L.J. 12.
Though, as has been discussed above, defendants had ample rt opportunity to file objection, if any, to the demarcation report after amendment of suit by the plaintiff whereby plea of possession was added while placing reliance upon the demarcation report dated 7.2.1995, but, despite that it is not understood what prevented the defendants-appellants for applying to the Court below to summon Local Commissioner who had carried out the demarcation dated 7.2.1995 Ex.PW-
1/B. Defendants being effected party and dis-satisfied with the demarcation report dated 7.2.1995, were well within its rights to examine Local Commissioner by citing him as a witness by following the procedure of law. In the instant case, plaintiff successfully proved on record demarcation report Ex.PW-1/B by placing reliance on other document Ex.PW-1/A i.e. confirmation order dated 30.9.1995, passed by the Tehsildar, which clearly suggests that despite various ::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 17 opportunities, defendants failed to file any objection to the demarcation report.
25. Apart from above, PW-1 and PW-2, in no .
uncertain terms, proved that demarcation was conducted in accordance with law. Both the aforesaid plaintiff witnesses in their cross-examination categorically stated that demarcation was carried out on the basis of Mussabi by Field Kanungo of after ascertaining the pucca points and there is nothing in their cross-examination, which could suggest otherwise.
26.
rt
Moreover, DW-2 himself in
examination admitted that demarcation was obtained by his cross-
plaintiff during the pendency of the suit and at that time he was present. He also stated that demarcation was conducted on the basis of Mussabi by Field Kanungo after ascertaining the pucca points and as such this Court sees no illegality and infirmity in the conclusion drawn by both the Courts below that the demarcation report Ex.PW-1/B was carried out in accordance with law.
27. It is also settled law that once land is demarcated, no further demarcation can be carried out unless previous is set aside. In this regard reliance is placed on the judgment of this High Court in Radha Soami Satsang Beas vs. State of Himachal Pradesh and another, 1984 S.L.J. 378.
::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 1828. After carefully examining the entire evidence and the reasoning given by the Courts below vis-à-vis documentary evidence adduced on record by the plaintiff, .
this Court sees no illegality and infirmity in the findings returned by both the Courts below. This Court has no hesitation to conclude that Courts below have rightly appreciated the documentary evidence placed on record in of the shape of Ex.PW-1/B by the plaintiff to conclude that defendants have encroached upon the suit land, admittedly, rt owned and possessed by the plaintiff-respondent. In view of above detailed discussion, substantial question of law is answered accordingly.
Question No.2
29. It emerges from the record that appellants-
defendants had applied for appointment of Local Commissioner to carry out demarcation but the same was rejected by the Court below. At the cost of repetition, it may be reiterated that plaintiff had applied for demarcation during the pendency of the suit and Local Commissioner had carried out demarcation on 7.2.1995 in the presence of all the parties, including the defendants. By way of placing demarcation report dated 7.2.1995 Ex.PW-1/B, plaintiff successfully proved on record that demarcation in question was carried out in accordance with law by associating all the defendants.
::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 1930. In view of above, this Court is of the view that once trial Court had accepted the demarcation report duly submitted by Field Kanungo, it had no occasion to call for .
fresh demarcation report at the instance of defendants.
Moreover, as has been discussed hereinabove in detail, demarcation report Ex.PW-1/B, placed on record by the plaintiff, was carried out strictly in accordance with law, as of per own admission of the defendant, and as such, this Court sees no illegality and infirmity in the rejection of application rt under Order 26 Rule 9 CPC having been preferred by defendants by the trial Court.
31. True, it is that in the event of there being boundary dispute between the parties, Courts below should appoint Local Commissioner for demarcation of respective boundaries of the parties as per provisions of Chapter I-M of High Court Rules and Orders. In the instant case, as has been observed above, trial Court had no occasion to appoint Local Commissioner when demarcation report dated 7.2.1995 Ex.PW-1/B was already on record. Therefore, the substantial question of law is answered accordingly.
Question No.3
32. Now, adverting to the plea of customary right of using Maind of the neighbour for carrying out agricultural production, this Court finds that no evidence worth the name was led on record by the defendants to prove such right by ::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 20 way of easement of necessity as well as custom. Though defendants by way of written statement claimed that they have easementary right by way of easement of necessity but .
there is no evidence led on record by the defendants to substantiate the aforesaid plea having been taken in the written statement. To prove the plea of easementary right by way of custom or by the easement of necessity, it was of incumbent upon the defendants to prove on record that the land of defendants is situated beyond the land of plaintiff rt and there is no alternative passage leading to their land except from the land of the plaintiff. In the present case, there is no site plan, whatsoever, attached with the written statement, suggestive of the fact that defendants had no alternative path to their land, save and except, the one that is from the land of plaintiff. Substantial question of law is answered accordingly.
33. As far as judgments having been relied upon by the counsel representing the appellants, there can be no quarrel that if the demarcation is not carried out in accordance with law/rules, same cannot be read in evidence and Courts while adjudicating the boundary dispute, if any, between the parties can always order for appointment of Local Commissioner in terms of Order 26 Rule 9 CPC. But in the instant case, as has been discussed in detail, demarcation report placed on record by the plaintiff is in ::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 21 accordance with law and instructions of the Financial Commissioner and as such this Court sees no illegality and infirmity in the judgments passed by both the learned Courts .
below. In view of above, judgments cited by learned counsel representing the appellants may not have any application in the present case.
34. This Court is fully satisfied that both the courts of below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, rt 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's 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 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 ::: Downloaded on - 15/04/2017 21:39:04 :::HCHP 22 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."
(p.269)
35. In the facts and circumstances discussed above, of this Court is of the view that findings returned by the trial Court below, which was further upheld by the first appellate rt Court, do not warrant any interference of this Court as findings given on the issues framed by the trial Court below as well as specifically taken up by this Court to reach the root of the controversy appears to be based on correct appreciation of oral as well as documentary evidence. Hence, present appeal fails and is dismissed, accordingly.
36. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.
November 30, 2016 (Sandeep Sharma)
(aks) Judge
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