Himachal Pradesh High Court
Rattan Chand vs Of on 30 September, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.124 of 2007 .
Reserved on : 06.09.2016 Date of Decision: 30th September,2016 _____________________________________________________________________ Rattan Chand ... Appellant-plaintiff Versus of Malkiat Singh & Ors. ... Respondents-defendants Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
rt Whether approved for reporting?1 Yes.
For the Appellant :Mr. Ajay Sharma, Advocate.
For the Respondents: Mr. Rahul Mahajan, Advocate.
Sandeep Sharma, Judge By way of instant Regular Second Appeal, appellant (hereinafter referred to as 'Appellant-plaintiff') laid challenge to the Judgment and decree dated 24.02.2007, passed by learned District Judge, Una, in Civil Appeal No. 72 of 2005, affirming judgment and decree dated 30.9.2005, passed by Civil Judge (Jr. Division), Court No. I, Amb, District Una, in Civil Suit No. 57-1 of 2003, whereby Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:19:42 :::HCHP
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suit filed by appellant-plaintiff for permanent injunction was dismissed.
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2. Briefly stated facts as emerged from the record are that appellant-plaintiff filed suit for permanent injunction for restraining defendants (hereinafter referred to as the 'Respondents-defendants') from taking the forcible of possession, demolishing the abadi, cutting and removing any tree, changing the nature and interfering in any manner, rt whatsoever in the land measuring 0-00-90 hectares, comprised in Khewat No. 373 Min, Khatauni Nos.
989, 993, at present Khasra Nos. 3717, 3718 & 3719, as entered in Misal Hakiat Bandobast for the year 1988-89, situated in village Nakroh, upmahal Ram Nagar, Tehsil Amb, District Una, H.P., in the alternative appellant-plaintiff also prayed for decree of possession.
3. Learned trial Court on the basis of evidence adduced on record by the respective parties dismissed the suit of the appellant-plaintiff vide judgment and decree dated 30.9.2005.
4. Being aggrieved and dis-satisfied with the aforesaid judgment and decree passed by learned Civil ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...3...
Judge (Jr. Division), Court No. 1, Amb, District Una, H.P., appellant-plaintiff filed an appeal under Section 96 of the .
Code of Civil Procedure before the learned District Judge, Una, which came to be registered as Civil Appeal No. 72 of 2005, however, fact remains that learned District Judge also vide judgment and decree dated 24.02.2007 dismissed the of appeal and upheld the judgment passed by the learned trial Court.
5. rt In the aforesaid background, appellant-plaintiff approached this Court by way of present Regular Second Appeal praying therein for setting aside and quashing of impugned judgments and decrees dated 24.2.2007 passed in Civil Appeal No. 72 of 2005 passed by learned District Judge, Una and dated 30.9.2005 in Civil Suit No. 57-1/03 passed by learned Civil Judge (Jr. Division), Court No.1, Una, with a further prayer to decree his suit.
6. Record further reveals that this Court vide order dated 28.5.2009, had admitted the instant Regular Second Appeal on following substantial questions of Law:
"2. Whether the document Ext.P-1 stand misread and his mis-appreciated by both the courts below and also the ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...4...
oral evidence adduced by the parties. As such the impugned judgments and decrees stand vitiated?
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3. Whether both the courts below erred in law and facts in relying the document Mark A (having not been proved in accordance with law) thereby vitiating the impugned judgments and decrees?"
7. In nutshell, case of the appellant-plaintiff before of learned trial Court was that land measuring 0-00-90 hectares, as described above, is possessed by him by his own rights for the last 50 years being proprietors and rt inhabitants of the village. Appellant-plaintiff also claimed that old abadi is in existence over the suit land belonging to his ancestors and earlier appellant-plaintiff and his predecessor-in-interest were residing with the family in this abadi. Now, since appellant-plaintiff has constructed another abadi, old abadi over the suit land is being used by the appellant-plaintiff as cattle shed. Appellant-plaintiff further claimed that defendants who are very clever, headstrong and influential persons of the locality entered into the suit land on Ist May, 2003 and cut and remove number of fruit bearing trees. Appellant-plaintiff further contended in the plaint that when he and his family members requested the defendants not to cut and remove ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...5...
the trees planted by him, they were given beatings and extended threats to demolish the existing abadi of the .
appellant-plaintiff. In the aforesaid background, appellant-
plaintiff filed suit for permanent injunction, as detailed hereinabove. Appellant-plaintiff in alternate also sought decree for possession.
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8. Respondents-defendants by way of written statement refuted the claim of the appellant-plaintiff in toto rt by stating that the suit land except Khasra No. 3719 is possessed by the appellant-plaintiff only. Respondents-
defendants stated that two meter wide passage adjacent to the water kulh existed at the spot and the same is being used for egress and ingress by the local public/inhabitants including the appellant-plaintiff also. Respondents-
defendants also submitted that, on 6.5.2003, the matter was compromised and same was reduced into writing and appellant-plaintiff put his signature and agreed to not stop respondents-respondents from using the passage.
Respondents-defendants specifically denied that old abadi of the appellant-plaintiff exists over the suit land since the time of ancestors, rather defendants stated that abadi of the ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...6...
appellant-plaintiff is much away from the suit land. Factum of existence of cattle shed on old abadi, as claimed by .
appellant-plaintiff was also denied by the defendants in their written statement. Respondents-defendants specifically stated that they never cut and remove number of fruit bearing trees, as alleged by the appellant-plaintiff. It also of came in the written statement of the respondents-
defendants that there is two meter wide passage on the rt existing suit land, which is being used by respondents-
defendants and inhabitants of village as well as appellant-
plaintiff, and allegations of extending threats to demolish existing abadi of the appellant-plaintiff was also denied by respondents-defendants specifically in the written statement. In the aforesaid background, respondents-
defendants submitted that since matter was compromised on 6.5.2003, wherein, appellant-plaintiff had agreed to not to stop respondents-defendants from using the passage, suit deserves to be dismissed.
9. Mr. Ajay Sharma, learned counsel representing the appellant-plaintiff vehemently argued that impugned judgments passed by both the Courts below are not ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...7...
sustainable as the same are not based upon the correct appreciation of the evidence available on record, rather both .
the Courts below have passed the judgments on mere conjectures and surmises and as such same deserves to be quashed and set aside. Mr. Sharma contended that close scrutiny of judgments passed by Courts below itself of suggests that the Courts below have not been able to appreciate the actual controversy involved in the case rt because no issue was framed by the Court below with regard to existence of passage, which was core dispute between the parties and, as such, it cannot be said that judgments passed by both the Courts below are based upon the proper appreciation of pleadings as well as evidence adduced on record by the respective parties. Mr. Sharma further contended that since Courts below failed to frame proper issue, as pointed out above, great prejudice has been caused to the appellant-plaintiff, as such, judgments passed by Courts below stand vitiated and liable to be quashed and set aside. Mr. Sharma also contended that learned Courts below further erred in not appreciating Ex.P1 (revenue record) in its right perspective because appellant-plaintiff ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...8...
had filed suit with respect to Khasra No. 3717, 3718 and 3719 specifically claiming abadi over suit land by stating in .
ambiguous terms that defendants are trying to take forcible possession of the same by demolishing abadi, cutting and removing trees, but Courts below instead of returning findings qua aforesaid controversy wrongly came to the of conclusion that appellant-plaintiff was not in exclusive owner in possession of the suit land. Similarly, Mr. Sharma rt invited attention of this Court to document Mark-A to demonstrate that same could not be taken into consideration by the learned First Appellate Court while upholding the judgment and decree passed by learned trial Court because the same was never exhibited and it is a settled law that marked document cannot be read in evidence unless the same is exhibited. While concluding his arguments, Mr. Sharma further stated that Courts below could not dismiss suit filed by appellant-plaintiff for permanent injunction when plaintiff successfully proved his title qua the suit land but Courts below without appreciating Ex.P1, wrongly came to the conclusion that suit land is Shamlat Deh and wrongly placed reliance upon ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...9...
compromise Mark-A, which was never proved in accordance with law. Hence, judgments passed by both the Court below .
deserve to be quashed and set aside. He also placed reliance upon judgment passed by Hon'ble Apex Court in "Sait Tarajee Khimchand and others versus Yelamarti Satyam and others, AIR 1971 SCC 1865", to of substantiate his plea that marked document cannot be read in evidence unless the same is exhibited during evidence.
10. rt Mr. Rahul Mahajan, Advocate, duly assisted by Mr. Prince Chauhan Advocate, supported the judgments passed by both the Court below. Mr. Mahajan vehemently argued that bare perusal of the impugned judgments passed by Courts below clearly suggests that same are based upon the correct appreciation of evidence, be it ocular or documentary, adduced on record by the respective parties, as such, no interference, whatsoever of this Court is warranted in the present facts and circumstances of the case. During arguments having been made by him, he specifically invited the attention of this Court to the judgments passed by both the Courts below to demonstrate that Courts below have dealt with each and ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...10...
every aspect of the matter very meticulously and, as such, no interference is called for, especially, in view of the .
concurrent findings returned by the Courts below, that too, after appreciating the each and every aspect of the matter minutely. In this regard, to substantiate the aforesaid plea, he placed reliance upon the judgment passed by Hon'ble of Apex Court in Laxmidevamma and Others Vs. Ranganath and Others, (2015)4 SCC 264.
11. rtI have heard learned counsel for the parties and have gone through the record of the case.
12. Before adverting to the substantial questions of law framed by this Court at the time of admission, it may be observed that appellant-plaintiff filed suit for permanent injunction specifically stating therein that land measuring 0-00-90 hectares, as described hereinabove, is possessed by appellant-plaintiff by his own rights being proprietor and inhabitants of village. Though respondents-defendants by way of written statement specifically refuted the aforesaid assertion made by appellant-plaintiff in the plaint. But, this Court while examining the submissions having been made on behalf of counsel representing the appellant-plaintiff, ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...11...
could lay its hand to Ext.P1, perusal whereof clearly suggests that Khasra Nos. 3717, 3718 and 3719 (suit land) .
is not owned by appellant-plaintiff, rather Misl Hakiat pertaining to year 1988-89 (Ex.P1) clearly suggests that aforesaid land has been reflected as Shamlat Deh (common village land). Though perusal of Ext.P1 suggests that name of of appellant-plaintiff has been entered in revenue record in the column of cultivation but facts remain that claim put-
rt forth on behalf of appellant-plaintiff that he is in exclusive possession of suit land by his own right being proprietor is not correct and based upon revenue record as mentioned hereinabove. Revenue record as mentioned above clearly suggests that name of appellant-plaintiff have been entered in revenue record in column of cultivation and possession..
Hence, in view of above, suit filed by the appellant-plaintiff ought to have been dismissed on this sole ground only.
13. In view of above, this Court sees no force much less substantial force in contention put-forth on behalf of appellant-plaintiff that both the Courts below mis-read document Ex.P1. Bare perusal of document Ex.P1 clearly suggests that part of suit land has been shown to be in ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...12...
possession of appellant-plaintiff Rattan Chand, whereas remaining part of Khasra No. 3719 in the possession of .
Bashindgan Deh (residents of village). It is not understood how appellant-plaintiff could file suit for permanent injunction restraining defendants from interfering in the suit land as described above, placing reliance upon Ext. P1, of wherein undisputably he has been shown in possession of suit land in the column of cultivation but admittedly in the rt column of owner, it has been mentioned "Shamlat Deh".
Hence, Courts below rightly rejected the claim of appellant-
plaintiff being in exclusive possession of entire suit land on the basis of Ext. P1.
14. Consequent upon aforesaid discussion, this Court is of the view that there is no error, if any, by the Courts below while reading Ex.P1 placed on record by appellant-plaintiff, as such, substantial question No. 2, as referred to above is answered accordingly.
15. Similarly, this Court while examining substantial question No. 3, perused document Mark-D (which has been inadvertently mentioned as document Mark-A in substantial question of law) clearly suggests that appellant-plaintiff had ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...13...
entered into compromise with the respondents-defendants, wherein, he had agreed to not to disturb defendants and .
other inhabitants of village from using passage from 2 meter vide passage passing through the suit land. But careful perusal of judgment passed by learned trial Court, whereby, the suit of the appellant-plaintiff was dismissed, clearly of suggests that learned trial Court did not take into consideration the compromise since document Mark-D rt (Compromise) (inadvertently mentioned as Mark-A in the judgment) was not proved in accordance with law. The Para 22 of judgment passed by learned trial Court is reproduced as under:-
"22 Without looking at the compromise Mark-A and without deciding the rights and liabilities if any occurred on account of that from the material in the shape of oral evidence and in the light of entries existing in revenue record Ex.P-1, it appears that grant of injunction in these peculiar facts and circumstances is not in the interest of justice."
16. Perusal of Para 22 of judgment passed by learned trial Court clearly suggests that learned trial Court had rendered its findings vide judgment and decree dated 30.9.2005 without looking at compromise Mark-D. Hence, ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...14...
this Court is of the view that there is no force in the contention put-forth on behalf of appellant-plaintiff that .
Court below erred in law, while placing reliance on document Mark-D, which was not exhibited. Though perusal of impugned judgment passed by First Appellate Court suggests that learned First Appellate Court while of dealing with appeal preferred on behalf of appellant-plaintiff discussed the aspect of compromise (Mark-D) allegedly rt entered into between the parties. But perusal of the judgment passed by learned First Appellate Court clearly suggests that effect, if any, of compromise (Mark-D) was only considered by the First Appellate Court while examining correctness and genuineness of the evidence led on record by the respondents-defendants, wherein, it is specifically stated that appellant-plaintiff vide compromise dated 6.5.2003 (Mark-D) had agreed to leave two meter wide passage for the use of respondents-defendants and other villagers. If judgment passed by learned First Appellate Court is read in its entirety, it nowhere suggests that while dismissing the appeal preferred by present appellant-
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plaintiff, First Appellate Court placed reliance upon document Mark-D, as alleged, by appellant-plaintiff.
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17. Since, learned Courts below while rejecting the suit of the appellant-plaintiff did not place reliance, if any, on document Mark-D, there is no force in the contention put-forth on behalf of appellant-plaintiff that Courts below of erred in law and fact while placing reliance on document Mark-D, which was not proved in accordance with law.
rt There cannot be any disagreement qua the well established principle that document marked during evidence cannot be read in evidence unless the same is exhibited, as has been held in "Sait Tarajee Khimchand and others versus Yelamarti Satyam and others, AIR 1971 SCC 1865"
relied upon by counsel representing the appellant-plaintiff.
But in the present case, as clearly emerge from the record that both the Courts below while rejecting the suit as well as appeal did not place reliance upon document mark-D, which was not exhibited and as such contention put-forth on behalf of appellant-plaintiff deserves to be rejected outrightly. Accordingly, substantial question No. 3 is answered accordingly.::: Downloaded on - 15/04/2017 21:19:42 :::HCHP
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18. This Court sees no irregularity and infirmity, if any, in the judgments passed by the courts below, rather, .
same are based upon correct appreciation of the evidence available on record. 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 of interference, whatsoever, in the present matter. Since, both the Courts below have returned concurrent findings, which rt 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, herein below:-
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re- appreciation 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 ::: Downloaded on - 15/04/2017 21:19:42 :::HCHP ...17...
plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., 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."
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19. Consequently, in view of the detailed discussion rt made hereinabove as well as law passed by Hon'ble Apex Court, this Court sees no occasion to exercise power under Section 100 of the Code of Civil Procedure to interfere with the concurrent findings returned by the learned Courts below, which otherwise, are based upon the correct appreciation of the evidence, be it ocular or documentary, on record, as such, present appeal fails and same is accordingly dismissed.
Interim directions, if any, are vacated. All miscellaneous applications are disposed of.
(Sandeep Sharma )
September, 30 2016 Judge
(sanjeev
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