Himachal Pradesh High Court
Sheila Devi vs Nanak Chand on 18 July, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.113/2023 Date of Decision: 18th July, 2023.
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Sheila Devi .....Petitioner.
Versus
Nanak Chand .....Respondent.
Coram
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 For the Petitioner: Mr. Jeevesh Sharma, Advocate.
For the Respondent: Mr. Surender Verma, Advocate.
Jyotsna Rewal Dua, Judge The petitioner/plaintiff remained unsuccessful in the Civil Suit instituted by her. The learned Trial Court dismissed Civil Suit instituted by the petitioner/plaintiff for declaration, permanent prohibitory and mandatory injunction, vide judgment and decree dated 01.10.2021. The petitioner/plaintiff assailed this judgment and decree before the learned First Appellate Court.
At the time of hearing of the appeal, an application was moved by the petitioner/plaintiff under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure seeking appointment of Local Commissioner. The application has been dismissed by the learned First Appellate Court on 06.03.2023, giving cause of action to the petitioner to invoke supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 21/07/2023 20:32:42 :::CIS 22. The main controversy between the parties was concerning the removal of lateral support to the land of the petitioner-plaintiff.
According to the petitioner, there was lateral support to his land .
comprised in Khasra No.2047, which originated from Khasra No.2048 situated in Muhal Bari/26/9, Tehsil Sundernagar, District Mandi, H.P. Khasra No.2048 is owned by the present respondent-defendant. The petitioner instituted a Civil Suit on 05.06.2015 against the respondent/defendant for declaration to the effect that she had right of easement of lateral support to her land comprised in Khasra No.2047 from adjoining land of the respondent/defendant comprised in Khasra No.2048 along with consequential relief of permanent prohibitory injunction for restraining the defendant from excavating his adjoining land comprised in Khasra No.2048. Mandatory injunction seeking direction to the respondent/defendant to construct the retaining wall at his cost to protect the suit land owned by the plaintiff comprised in Khasra No.2047 was also prayed for.
The first two issues framed by the learned Trial Court on the basis of pleadings of parties were-
"1. Whether the plaintiff has got right of lateral support to her land bearing Khasra No.2047 from land bearing Khasra No.2048, as alleged ? OPP.
2. Whether the defendant is removing the lateral support, as alleged? OPP."
On the first issue learned Trial Court returned the findings in favour of the plaintiff, however, other issue whether the defendant ::: Downloaded on - 21/07/2023 20:32:42 :::CIS 3 removed the lateral support or the plaintiff suffered any damage to the suit land on account of any act of the defendant, the findings were returned against the plaintiff and in favour of the defendant. It would .
be appropriate to extract following paras from the judgment:-
" 20. Coming to the pleadings as well as oral evidence led in that behalf by the plaintiff and defendant. The plaintiff in Para No.5 of the plaint alleged that the defendant has constructed a new house over Khasra No.2048 and since 05.10.2014, has started removing the lateral support of the land of plaintiff bearing Khasra No.2047. The plaintiff in the cross-examination of defendant Nanak Chand has put suggestion to the defendant that while constructing his house, he unlawfully excavated the land of the plaintiff and removed the lateral support of the land of the plaintiff and resultantly, the land caved in, which suggestion has been denied by the defendant. The cross-examination of the defendant also reveals that he has categorically mentioned that he constructed his house in the year 2005 and the lintel was laid in the year 2012-13. Thus, from the evidence led by the parties, it is not established that the defendant while constructing his house in the year 2014 removed the lateral support of the house of plaintiff. Admittedly, from the evidence on record, it is established that the plaintiff has right of lateral support to her land, however, it cannot be said that the defendant caused damaged to the land of the plaintiff while raising construction and excavated the land during the construction of his house. The possibility of damage to the land of the plaintiff on account of other reasons cannot be ruled out.
21. The counsel for the plaintiff has also placed reliance upon the demarcation report Ex.PW5/D and tatima Ex.PW4/A and argued that after conducting demarcation, the demarcating official reflected in the tatima that boundary of land of plaintiff shown in dotted line was found to have been fallen. In the case in hand, the demarcation report is not so relevant as there is no boundary dispute between the parties and the demarcation report can be seen only for the corroborative purposes. However, when it is not established on record that the defendant caused damaged to the land of the plaintiff while constructing his house, the demarcation report is of no help to the plaintiff. Perusal of the application Ex.PW5/A also shows that the plaintiff has nowhere mentioned regarding the damage to the suit land by removing the lateral support and rather, mentioned that for the satisfaction of the parties to ascertain their boundaries, the demarcation ::: Downloaded on - 21/07/2023 20:32:42 :::CIS 4 may be carried out. In the demarcation report Ex.PW5/D also, it is mentioned that there is dispute of boundaries between the parties, hence, demarcation is being conducted. After conducting demarcation, the demarcating official found less than one meter of boundary wall to have been fallen. The statements of the .
parties were also recorded which are Ex.PW5/B and Ex.PW5/C which show that the line regarding constructing the retaining wall by the defendant was added later on in both the statements. The Kanungo, who appeared as PW5 in the witness box as also admitted that aforesaid lines were added later on. There is no mention of the cause of damage to the suit land in the report of demarcating official. Thus, in these circumstances, at the cost of repetition of facts, the plaintiff has failed to prove that defendant has caused damage to the lateral support to the suit land.
22. Coming to the second point that whether the plaintiff has been able to prove the actual damage done to the suit land. The evidence led by plaintiff qua this is a tatima Ex.PW4/A and report of Field Kanungo Ex.PW5/A along with statements of parties Ex.PW5/B and Ex.PW5/C. It is admitted by defendant in his statement Ex.PW5/B that he will raise a danda/retaining wall over the land of plaintiff. Tatima Ex.PW4/A shows the place in the shape of red dotted line where defendant is causing interference with the suit land however, neither any report of expert suggesting height, length, width, material to be used and other description of the retaining wall has been led by the plaintiff nor plaintiff has placed on record any abstract of costs required for construction of such retaining wall. Hence, plaintiff cannot be said to have proved her averments regarding relief of mandatory injunction beyond preponderance of probabilities. Accordingly, issue No.1 is proved in affirmative and decided in favour of the plaintiff and issues No.2 to 4 are answered in negative and decided against the plaintiff."
3. The learned Trial Court vide its judgment and decree dated 01.10.2021 dismissed the Civil Suit. Plaintiff carried the matter further before the learned First Appellate Court. At the stage of hearing of the appeal, an application was moved by the plaintiff under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure with the prayer to appoint Local Commissioner. The object of making such prayer was ::: Downloaded on - 21/07/2023 20:32:42 :::CIS 5 to ascertain "existing position of the suit property". The application was dismissed by the learned First Appellate Court on 06.03.2023. The order has been assailed by the plaintiff in the instant petition.
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4. After hearing learned counsel for the parties, I do not find any merit in the petition requiring interference with the impugned order.
The Civil Suit instituted by the plaintiff in the year 2015 was dismissed by the learned Trial Court on 01.10.2021. Learned Trial Court held that plaintiff has a right of lateral support to her land bearing Khasra No.2047 from the land of respondent bearing Khasra No.2048, but it was not proved on record that the defendant had removed lateral support to the suit land or that any damage was allegedly caused to the plaintiff's suit by any act of the defendant. It was stand of the defendant that the plaintiff had not channelized water from the suit land.
Defendant had constructed his house in the year 2005 and lintel was laid in the year 2012-13. In the aforesaid circumstances, possibility of alleged damage to the plaintiff's land on account of other reasons was not ruled out by the learned Trial Court. After remaining unsuccessful in the Civil Suit, the plaintiff made a prayer for appointment of Local Commissioner before the learned First Appellate Court. The object of making prayer is not understandable. The plaintiff has merely averred in the application that Local Commissioner's appointment is necessary "in order to ascertain the existing position on the suit property". The Civil Suit was instituted in the year 2015. The application for ::: Downloaded on - 21/07/2023 20:32:42 :::CIS 6 appointment of Local Commissioner was moved before the learned Appellate Court in the year 2022. The ascertainment of existing position of the suit property by the Local Commissioner is not going to advance .
the cause of justice in the instant case. The plaintiff cannot be allowed to collect evidence with the assistance of Local Commissioner, that too when the matter is at the stage of final appeal. The instant is not a case of boundary dispute between the parties. The case record also shows that the plaintiff had already got the suit land demarcated. The report in this regard was exhibited on record. It was for the plaintiff to prove the averments as made in the plaint. The plaintiff cannot be allowed to collect evidence with the assistance of Local Commissioner.
Hence, for the foregoing reasons, I do not find any merit in the present petition and the same is dismissed. It is however clarified that observations made above shall remain confined only to the adjudication of instant petition and shall have no bearing on the appeal, which shall be decided by the learned Court, in accordance with law.
All pending application(s), if any, also stands disposed of.
Jyotsna Rewal Dua Judge 18th July, 2023 (CS) ::: Downloaded on - 21/07/2023 20:32:42 :::CIS