Himachal Pradesh High Court
H.P.Housing And Urban Development ... vs V on 27 April, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
RSA No. 101 of 2005 Decided on: 27.4.2016 H.P.Housing and Urban Development Authority ...Appellant/Plaintiff V Smt. Rekha Kumari ...Respondent/Defendant of Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No rt For the Appellant/ Plaintiff : Mr. Chandranarayana Singh, Advocate.
For the Respondent/ Respondent : Mr. Ajay Kumar Dhiman, Advocate.
Tarlok Singh Chauhan, Judge (Oral).
The appellant/plaintiff (hereinafter referred to as the appellant) has filed this Regular Second Appeal under Section 100 of the Code of Civil Procedure against the concurrent findings recorded by the learned Courts below whereby the suit for mandatory injunction filed by the appellant came to be dismissed.
2. The appellant filed a suit for mandatory injunction against the respondent/defendant (hereinafter referred to as the respondent) for removing the debris thrown on the plot No. 80 and on the road side and further dismantling the unauthorized construction allegedly raised by her over the suit land.
::: Downloaded on - 15/04/2017 20:11:51 :::HCHP 2The respondent was allotted plot No. 63 in MIG category .
in the Social Housing Colony, Bilaspur and after receipt of full payment, a conveyance deed was executed in her favour on 13.11.1990. It was alleged that while raising of the construction of the house on the allotted plot No.63, the respondent also raised unauthorized construction rt and also threw debris in plot No.80 which was causing inconvenience to the public, hence the suit for mandatory injunction filed by the appellant for demolition of the un-authorised construction and for removal of the debris from the adjoining plot.
3. The respondent filed her reply/written statement whereby preliminary objections regarding maintainability, cause of action etc. were taken. On merits, the respondent admitted about the allotment of the plot by the appellant. However, she denied that any construction was raised beyond the plan approved by the appellant or any debris was thrown in the adjoining plot.
4. On 9.9.1997, the learned trial Court framed the following issues:
1. Whether the plaintiff is entitled to the relief of injunction as alleged? OPP ::: Downloaded on - 15/04/2017 20:11:51 :::HCHP 3
2. Whether the plaintiff is entitled to the relief of .
mandatory injunction as alleged? If so to what effect and in what manner? OPP
3. Whether the suit is not maintainable in the present form ?OPD
4. Whether the plaintiff has no cause of action to of file the suit? OPD
5. Whether the suit is not properly valued for the rt purpose of Court fee and jurisdiction?OPD
6. Whether the act and conduct of the plaintiff are bar to the present suit? OPD
7. Relief.
5. The learned trial Court after recording the evidence and evaluating the same, dismissed the suit, constraining the appellant to approach the learned lower Appellate Court, which too, dismissed the appeal vide judgment and decree dated 2.9.2004 and undeterred the appellant has approached this Court by way of instant appeal.
6. This Court on 3.4.2006 admitted the appeal on the following substantial question of law:
"Whether the report given by a Junior Engineer of Housing Board that there is encroachment on the Board's property adjacent to the site allotted to the respondent cannot be used as a piece of evidence particularly when the property allegedly encroached upon is the property of the Board?::: Downloaded on - 15/04/2017 20:11:51 :::HCHP 4
I have heard the learned counsel for the parties .
and have carefully and meticulously gone through the records of the case.
7. The appellant in order to prove its case has of placed on record conveyance deed Ex.P-1 alongwith site plans Ex.P-2 and P-3. The appellant has examined rt Anjori Sharma as PW-1, who has stated that the respondent had made unauthorized construction which was not in accordance with the approved map. She further stated that respondent had thrown debris on plot No.80 and when she refused to remove the same, the appellant was left with no other option but to file the instant suit.
8. It would be noticed that this witness nowhere stated that which officer of the appellant went to the spot and what report was submitted in this regard. She also did not depose as to whether she herself or any other officer went to the spot.
9. J.E. of the appellant Sh.R.D.Sharma, appeared as PW-2 and has stated that he had prepared the site plan about the encroachment and unauthorized construction which is Ex.PW-2/A. He further stated that debris had been thrown on plot No.80 which was still lying there. He further stated that the respondent ::: Downloaded on - 15/04/2017 20:11:51 :::HCHP 5 has violated the Rules by raising unauthorized .
construction.
10. In case the statement of this witness is scrutinized, it would be noticed that the same suffers of from similar infirmities as that of PW-1. This witness has not stated about the fact as to when he went to the spot, how rt he learnt about the unauthorized construction, whether he prepared any report or plan at the site. This witness is conspicuously silent regarding the presence of his subordinate or superior officer at the time of spot inspection. He has further not deposed about the source of information regarding the throwing of debris, raising of construction etc.
11. On the other hand, the respondent appeared as DW-1 and stated that she never raised any unauthorized construction nor threw debris on plot No.80. She further stated that she had never received any notice from the appellant regarding unauthorized construction and lastly stated that none from the department had visited the spot.
12. Similarly, DW-2 Hariman also stated that no unauthorized encroachment had been made by the respondent nor she had thrown any debris in plot No.80. The witness tendered in evidence Ex.D-1 copy of ::: Downloaded on - 15/04/2017 20:11:51 :::HCHP 6 the letter approving the building plan submitted by the .
respondent.
13. It would be evident from the aforesaid discussion that the appellant has miserably failed to of prove its case that any plot was inspected by any of the officials, who may have reported about the rt unauthorized construction or any measurements being carried out at the spot to prove the extend of construction made beyond the plan approved by the appellant. In such circumstances, it was incumbent upon the appellant to have proved that some official(s) had visited the spot, carried out the measurements and thereafter prepared a report on the basis of the demarcation and pin-pointed the unauthorized construction and a similar report with respect to the throwing of debris could have been prepared.
14. That apart, the appellant has miserably failed to place on record the copy of any notice which may have prima-facie found that the respondent to be either raising illegal construction or throwing the debris in the adjoining plot No. 80. In such circumstances, the learned Courts below have committed no illegality or irregularity much less perversity in appreciating the evidence available on record.
::: Downloaded on - 15/04/2017 20:11:51 :::HCHP 7Substantial question of law is answered .
accordingly.
15. In view of the aforesaid discussion, there is no merit in this appeal and the same is accordingly of dismissed, leaving the parties to bear their own costs.
rt (Tarlok Singh Chauhan)
Judge.
April 27, 2016
(gr)
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