Himachal Pradesh High Court
Roshan Lal vs Kishori Lal on 24 June, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 466/2011 Reserved on 23.6.2015 Decided on 24.6.2015 .
__________________________________________________________________ Roshan Lal ..Appellant Versus Kishori Lal ..........Respondent __________________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge Whether approved for reporting? 1 No. __________________________________________________________________ For the Appellant : Mr. Sanjay Jaswal, Advocate.
For the Respondent : Mr. Neel Kamal Sharma, Advocate. __________________________________________________________________ Rajiv Sharma, Judge This Regular Second Appeal has been instituted against judgment and decree dated 23.6.2011 rendered by learned Presiding Officer, Fast Track Court, Mandi, District Mandi, HP in Civil Appeal No. 56 of 2010.
2. "Key facts" necessary for the adjudication of the present appeal are that the appellant-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) has filed a suit for permanent prohibitory injunction and in the alternative, for mandatory injunction against the respondent-defendant (hereinafter referred to as 'defendant' for convenience sake), alleging therein that the land comprised in Khewat Khatauni No. 99 min/ 116, Khasra No. 558, measuring 0-22-23 hectares situate at village Sukhar/ 507 III Hatli, Sub-Tehsil Baldwara, District Mandi, HP is residential house of 1 Whether the reporters of the local papers may be allowed to see the judgment? No. ::: Downloaded on - 15/04/2017 18:26:38 :::HCHP 2 both the parties and exist over the suit land. The defendant has started excavating the land which is situated on the backside of the house with the intention to raise pillars. Suit was contested by the .
defendant. According to the defendant, he was owner-in-possession of the suit land. He prepared a plot over the land. Replication was filed. Issues were framed on 25.11.2002 by the learned Civil Judge (Senior Division). He dismissed the suit on 20.7.2010. Plaintiff preferred an appeal before the learned Presiding Officer, Fast Track Court, which was dismissed on 23.6.2011. Hence, this Regular Second Appeal. r
3. The appeal was admitted on 21.11.2011, on the following substantial question of law:
"1. Whether both the Ld. Courts below erred in appreciating the law applicable, pleadings of the parties, evidence adduced by them in its right perspective, thus vitiating the impugned judgments & decrees?
2. Whether both the Ld. Courts below have not erred and acted illegally by not taking into consideration the spot map Ex. PW5/A prepared by the revenue agency in discharge of its official duties as per the order of the ld. Trial court dt. 10.6.2003 for rendering just and fair decision on the case?
3. Whether the Ld. Courts below have not mis- appreciated the Ex. W-5/A, and Exhibit P2 and was not it incumbent upon the lower appellate court to base its judgment upon the above documents corroborated by oral evidence in the absence of other contrary documentary evidence?
4. Mr. Sanjay Jaswal, Advocate on the basis of substantial questions of law framed, has vehemently argued that both the ::: Downloaded on - 15/04/2017 18:26:38 :::HCHP 3 Courts below have not correctly appreciated the oral as well as documentary evidence. He also contended that the Courts below have not correctly appreciated the site map, Ext PW-5/A, which was .
duly corroborated by oral evidence.
5. Mr. Neel Kamal Sharma, Advocate has supported the judgments and decrees passed by the learned Courts below.
6. I have heard the learned counsel for the parties and also gone through the record carefully.
7. Since all the substantial questions of law are interconnected, the same were taken up together for discussion.
8. Plaintiff Roshan Lal has appeared as PW-1. According to him, suit land was Abadi Deh. He alongwith, other co-villagers and defendant was owner-in-possession of the same. On the backside of his house, there was a vacant land. Defendant started digging work behind his house. Land was sloppy. He was apprehending damage. He tried to stop the defendant. He has proved Ext. P1 Jamabandi. He also proved map prepared by J.E. Devender Kumar, mark X. In his cross-examination, he admitted that the land in front of his house was in possession of the defendant. He admitted that land which is in his possession remains in his possession and he has constructed his house and courtyard and land which was in possession of the defendant remained in his possession and he has constructed his house and courtyard.::: Downloaded on - 15/04/2017 18:26:38 :::HCHP 4
9. PW-2 Satya Pal Sharma has deposed that disputed land was Abadi Deh. Courtyard on the backside of the land was in possession of the plaintiff. In his cross-examination, he has .
admitted that the land was on the backside of the house of the plaintiff. This sloppy land starts after three feet of the plaintiff's land. On the said land, no pillar was raised by the defendant. He did not know who was in possession of the land which was excavated by the defendant.
10. PW-3 Devender Sharma J.E. has prepared spot map Ext. P2. In his cross-examination, he has admitted that plaintiff was father-in-law of his brother. He also admitted that the pillar which was raised by the defendant in front of the house of the plaintiff belonged to the defendant.
11. PW-4 Chandu Ram corroborated the statement of the plaintiff.
12. PW-5 Inder Kumar Patwari has prepared Tatima Ext.
PW-5/A, which was verified by Field Kanungo.
13. PW-6 Hem Raj Kanungo has verified the Tatima.
According to him, on Khasra No. 558/1, there was a plot. He has shown his ignorance that the plaintiff has occupied more land than his share.
14. Defendant has appeared as DW-1. He purchased the suit land in the year 1988. He denied that on the disputed land, there was house of Roshan Lal. He admitted that disputed land comprised in Khasra No. 558 was Abadi Deh measuring 2 bighas.::: Downloaded on - 15/04/2017 18:26:38 :::HCHP 5
15. DW-2 Laxmi Ram deposed that the plaintiff moved an application to the Panchayat and Panchayat visited the spot. It was found on the spot that they have made compromise. Plaintiff .
admitted that the defendant has made the plot behind his house.
16. Entire land is about 2 bighas and 10-20 persons have constructed their houses. Ext. P2 does not show how much land was in possession of the plaintiff and how much land was in possession of the defendant. Tatima Ext. PW-5/A dated 28.8.2003 was prepared by the Patwari. However, demarcation report was not placed on record. PW-6 Hem Raj Kanungo has stated in his cross-
examination that no demarcation was conducted on the spot.
However, statements of the parties were recorded. Plaintiff has not placed any tangible evidence on record to establish that the Patwari/ Kanungo has complied with the standing instructions issued by Financial Commissioner for undertaking demarcation.
According to Patwari, he has conducted demarcation. Patwari is not competent to give demarcation as per the instructions issued by the Financial Commissioner and by this Court. Plaintiff, thus, in these circumstances can not place reliance upon Ext. PW-5/A. There is no evidence led by the plaintiff that excavation of the land by the defendant would cause any damage to his property. Admission of the plaintiff establishes that the defendant was raising construction over the land which was in his possession. Plaintiff has miserably failed to prove that the defendant has interfered with his possession ::: Downloaded on - 15/04/2017 18:26:38 :::HCHP 6 over the suit land by raising construction. Defendant has raised construction over the land owned and possessed by him.
17. Courts below have correctly appreciated oral as well as .
documentary evidence. Ext. PW-5/A and P2 have rightly been discarded by the Courts below. The substantial questions of law are answered accordingly.
CMP No. 12764/2014 & CMP No. 19726/2014
18. The appellant has also moved an application for the appointment of local commissioner under Order 26 Rule 9 CPC and also an application for leading additional evidence to partition the land in dispute comprised in Khasra No. 558 measuring 0-22-23 hectares situate in village Sukhar/507 Illaqa Hatli, Sub Tehsil Baldwara, District Mandi, Himachal Pradesh.
19. It is settled law that the parties can not be permitted to fill-up lacunae by appointment of local commissioner. Tatima relied upon by the plaintiff vide Ext. PW-5/A has rightly been discarded by both the Courts below. The purpose of Order 41 Rule 27 CPC is not to patch-up the weak points in the case.
20 Their Lordships of the Hon'ble Supreme Court in Malayalam Plantations Ltd. v. State of Kerala reported in (2010) 13 SCC 487, have held as under:
"17. It is equally well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up he weak points in the case. Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happenings or events which are relevant for disposal of the appeal, however, it is not open to any party, at ::: Downloaded on - 15/04/2017 18:26:38 :::HCHP 7 the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 CPC. Additional evidence cannot be permitted at the appellate .
stage in order to enable other party to remove certain lacunae present in that case."
21. Thus, this Court can not order for appointment of local commissioner under Order 26 Rule 9 CPC. It is also settled by now that in absence of satisfactory reasons assigned for non-production of evidence in the trial Court, additional evidence should not be generally permitted. Party guilty of remissness in lower court is not entitled to indulgence of the Court under Order 41 Rule 27 Civil Procedure Code. In the instant case, the party had opportunity to get the land demarcated at the initial stage. Moreover, a party on whom onus to prove the point lies, if fails discharge onus, is not entitled to fresh opportunity to produce evidence.
22. In view of the discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stand disposed of. No costs.
(Rajiv Sharma) Judge June 24, 2015 (Vikrant) ::: Downloaded on - 15/04/2017 18:26:38 :::HCHP