Himachal Pradesh High Court
Rameshwar Dass (Deceased) Through Lr ... vs State Of Himachal Pradesh And Others on 6 December, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 319 of 2006
Decided on: December 6, 2016
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Rameshwar Dass (Deceased) through LR Bhushan Lal
.........Appellant
.
Versus
State of Himachal Pradesh and others ....Respondents
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
of
Whether approved for reporting?1 Yes.
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For the appellant rt Ms. Ruma Kaushik, Advocate.
For the respondents: Mr. P.M. Negi, Deputy Advocate General,
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Sandeep Sharma, Judge:
Instant regular second appeal filed under Section 100 CPC is directed against judgment and decree dated 27.4.2006 passed by learned District Judge, Sirmaur at Nahan in Civil Appeal No. 66- CA/13 of 2005 affirming judgment and decree dated 12.8.2005 passed by the learned Civil Judge (Senior Division) Sirmaur District at Nahan, HP in Civil Suit No. 75/1 of 2003 whereby suit for possession having been filed by the present appellant-plaintiff (in short, 'plaintiff') was dismissed.
2. Briefly stated the facts as emerge from the record are that the plaintiff filed a suit for possession claiming therein that he is owner-in-
possession of the land comprised in Khewat Khatauni No. 10 min/ 24 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 2min, Khasra Nos. 439 and 453 measuring 356-47 hectares situated at village and Mauza Nauni of Nahan town, District Sirmaur, Himachal Pradesh as per Jamabandi for the year 1995-96 (hereinafter, 'suit land'). Plaintiff further claimed that in the year 1995, at the instance of .
officials of defendant No.2, the Irrigation and Public Health Department installed water pipe line under Nahan-Khairi pipe line scheme through the land of the plaintiff. Plaintiff claimed that aforesaid line was laid down by the authorities despite the resistance on of the part of the plaintiff and the officials of the I&PH Nahan had assured him that land over which pipe line has been laid down, would rt be acquired by the State Government in accordance with law and he would be given reasonable compensation. Plaintiff further stated that he was induced by the then officers of the defendants that permanent job would be provided to his son. Since the defendants failed to fulfill aforesaid commitment having been made at the time of laying down pipe line through the land of the plaintiff, he was compelled to file suit bearing No. 42/1 of 97 titled as Rameshwar Dass versus State of Himachal Pradesh and others in the Court of learned Sub Judge, 1st Class, Nahan, for mandatory injunction for removal of aforesaid water pipe line from the suit land. Plaintiff further averred in the plaint that during the pendency of the suit, defendants provided job to his son therefore, plaintiff got the suit dismissed in default. Defendants after dismissal of the suit removed the son of the plaintiff from the job illegally and also backed out from their commitment. Plaintiff further claimed that he requested the defendants several times after aforesaid ::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 3 event to acquire the land and to pay compensation but no action was taken by them and as such he was compelled to file instant suit for possession.
3. Defendants by way of written statement, refuted the claim put .
forth on behalf of the plaintiff by stating that suit is not maintainable since plaintiff had earlier filed Civil Suit on same and similar cause of action, which was dismissed in default and suit is also not properly valued for the purpose of court fee and jurisdiction. On merits, of defendants claimed that the pipe line in question was laid down in the year 1995 with the consent of the plaintiff and at no point of time, rt during laying of pipe line, objection was raised by him. Defendants further denied that the plaintiff at any point of time was given assurance by the officials of the respondent-Department that his son would be given permanent job and compensation would be paid after acquiring the suit land. Defendants further claimed in the written statement that there is no vegetation on the suit land and they have constructed one pillar of size 1.25x 1.25 metres and a pipe of 300 MM dia rests on this pillar and 4.20 RMT of pipe line falls in Khasra No. 453 and 17 RMT pipe line falls in Khasra Nno. 439, which is above the ground level. Defendants specifically pleaded in the written statement that civil suit No. 42/1 of 97 having been filed by the plaintiff was dismissed in default for non-appearance of the plaintiff, vide order dated 6.7.1998, passed by Sub Judge, First Class, Nahan. Defendants further averred that the son of the plaintiff was given appointment on daily wages but he himself abandoned the job voluntarily and ::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 4 thereafter, plaintiff approached the defendant for payment of compensation or removal of the water pipe line from suit land, because he had voluntarily given suit land for laying pipe line.
4. On the basis of the pleadings of the parties, learned trial Court .
settled following issues on 24.6.2004 "1) Whether plaintiff is entitled for the relief of mandatory injunction/possession directing the defendants to remove the water pipe line illegally laid by the defendants on the suit land? ...OPP
2) Whether the suit is not maintainable in the present of form? ... OPD
3) Whether the suit is not properly valued for the purpose of court fee and jurisdiction ..... OPD
4) rt Whether no cause of action has accrued to the plaintiff to file the present suit against the defendants?
. OPD
5) Relief:"
5. Subsequently, vide judgment and decree dated 12.8.2005, learned trial Court dismissed the suit of the plaintiff. Being aggrieved and dissatisfied with the dismissal of the suit by the learned trial Court, plaintiff preferred an appeal before the learned District Judge, which was also dismissed vide judgment and decree dated 27.4.2006, hence, this Regular Second Appeal.
6. Present regular second appeal was admitted on 27.5.2005, on the following substantial questions of law:
"1. Whether non-consideration of oral as well as documentary evidence, which goes to the root of the matter has vitiated the findings of the ld. Court below?
2. Whether the suit of the plaintiff was barred under the law and as such was not maintainable?"::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 5
7. Ms. Ruma Kaushik, Advocate on behalf of appellant vehemently argued that the judgments and decrees passed by the learned Courts below are not sustainable as the same are not based on correct appreciation of evidence adduced on record by the respective parties, .
as such same are liable to be set aside. Ms. Kaushik, while referring to the judgments of the courts below, contended that bare perusal of same suggests that the evidence led on record by the plaintiff has not been read in its right perspective, as a result of which great prejudice has of been caused to the plaintiff, whose land has been admittedly used by the defendants while laying water pipe lines. Ms. Kaushik further rt contended that both the learned Courts below miserably failed to appreciate that considerable portion of land has been used by the defendants for laying water pipe lines that too without there being any acquisition in accordance with law. She further contended that for the last 25 years, defendants have been using this land without awarding any compensation to the plaintiff and as such judgments passed by both the Courts deserve to be set aside. While concluding her arguments, Ms. Kaushik further contended that it is ample clear from the record that in lieu of land having been used by the defendants, son of plaintiff was offered appointment but subsequently, after dismissal of the suit having been filed by the plaintiff, he was illegally removed from service and as such impugned judgments and decrees passed by the Courts below deserve to be set aside. In the aforesaid background, Ms. Kaushik forcefully contended that the present appeal deserves to ::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 6 be allowed, after setting aside the judgments and decrees passed by the Courts below.
8. Mr. P.M. Negi, Deputy Advocate General duly assisted by Mr. Ramesh Thakur, Deputy Advocate General, supported the judgments .
and decrees passed by the Courts below. Mr. Negi, while referring to the judgments passed by Courts below, strenuously argued that same nowhere suggest that the evidence led on record by the respective parties has not been dealt with in its right perspective rather as per of perusal of judgments, it is revealed that each and every aspect of the matter has been dealt with meticulously by the Courts below and there rt is no scope of interference, whatsoever by this Court, especially in view of the concurrent findings of fact and law recorded by the Courts below. While referring to the statements having been made by the plaintiff himself, as PW-1, Mr. Negi strenuously argued that the plaintiff was unable to prove on record that at the time of laying of pipes over his land, any assurance was given to him that land would be acquired and he would be paid compensation. Similarly, he further argued that there is no evidence, be it ocular or documentary, adduced on record by the plaintiff suggestive of the fact that any assurance was given to the plaintiff for offering appointment to the son of the plaintiff, as such there is no illegality or infirmity in the judgments and decrees passed by the learned Courts below and same deserve to be upheld. While concluding his arguments, Mr. Negi contended that this Court has limited jurisdiction to re-appreciate evidence while ::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 7 exercising powers under Section 100 CPC, especially when both the Courts below have returned concurrent findings of facts and law.
9. Before adverting to the merits of the case, it would be appropriate to deal with the specific objection raised by the learned .
counsel representing the defendants with regard to maintainability and jurisdiction of this Court, while examining the concurrent findings returned by both the Courts below, learned counsel for the defendants had invited the attention of this Court to the judgment passed by of Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein the Hon'ble Supreme Court rt has held:
"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 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)
10. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction 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. There can be no quarrel (dispute) with ::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 8 regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-appreciating the evidence available on record, but as emerges from the case referred above, there .
is no complete bar for this Court to upset the concurrent findings of the Courts below, if the same appears to be perverse.
11. In this regard reliance is placed upon judgment passed by Hon'ble Apex Court in Sebastiao Luis Fernandes (Dead) through of LRs and Others vs. K.V.P. Shastri (Dead) through LRs and Others, (2013)15 SCC 161 wherein the Court held:
rt "35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth v. Seshammal, (2006)5 SCC 545, wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below :
(SCC pp.555-56) "24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law.
Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A ::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 9 substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law .
is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-
recognised exceptions are where (i) the courts below of have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law rt erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same."
(pp.174-175)
12. I have heard the learned counsel for the parties and gone through the record carefully.
13. Since both the substantial questions of law are interconnected as such are being taken up together to avoid repetition of discussion of evidence.
14. With a view to explore answer to aforesaid substantial questions of law, this Court carefully analyzed evidence adduced on record by ::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 10 the respective parties, perusal whereof nowhere suggests that there is non-consideration of oral as well as documentary evidence by the Courts below while dismissing the suit of the plaintiff. Similarly, this Court, after carefully examining the judgments passed by the learned .
Courts below, finds no illegality or infirmity in the findings returned by the learned Courts below that the suit of the plaintiff is barred in law in view of dismissal of earlier suit filed by the plaintiff on same and similar cause of action.
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15. Perusal of pleadings available on record suggests that there is no dispute that in the year 1995, Irrigation and Public Health rt Department Nahan installed water pipe lines under Nahan-Khairi Scheme through the land of the plaintiff. It also emerges from the pleadings that apart from the land of the plaintiff, Department also used land of certain other persons. It is also not in dispute that no compensation was paid to the plaintiff at the time of laying of aforesaid water pipe lines through his land. Since land was never acquired in terms of the Land Acquisition Act, there was no occasion for the defendants to pay compensation to the plaintiff. Though the plaintiff in his pleadings claimed that at the time of laying of pipes, he resisted but later on, on the assurance of officials of the I&PH Department, he allowed to lay pipes through his land. Plaintiff has further claimed that he was assured by the officials of the Department that once work of laying water pipe lines is over, land would be acquired and he would be paid compensation and his son would be offered appointment in the Department.
::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 1116. Defendants by way of written statement has specifically denied the aforesaid claim of the plaintiff. It also emerges from the record that in the year 1997, plaintiff had filed Civil Suit on same and similar grounds, which was dismissed in default for non-appearance of the .
plaintiff vide order dated 6.7.1998, perusal whereof suggests that earlier suit filed by the plaintiff was dismissed in default for non-
appearance of the plaintiff as such there is no force in the contention of the plaintiff that he had got his suit dismissed in default because his of son was given appointment on daily wages by the Department. With a view to substantiate his case, plaintiff examined himself as PW-1 and rt also tendered in evidence copies of Jamabandi for the year 1995-96 (Ext. P1), copy of Aks Shajra (Ext. P2), copy of order dated 6.7.1998 (Ext. P3) and notice (Ext. P4). Perusal of Exts. P-1 and P-2 clearly suggests that the suit land is owned and possessed by the plaintiff and there is no dispute qua the same. It also appears from the pleadings that some portion of land has been used by the defendants for laying pipes rather, defendants have only constructed pillars of dimensions of 1.25 x 1.25 and a pipe of 300 mm dia has been rested on the raised pillar in Khasra No. 453 of suit land and a pipe of17 m in Khasra No. 439 of suit land. Remaining portion of suit land is in possession of the plaintiff.
17. This Court while sifting evidence, be it ocular or documentary, adduced on record by the plaintiff was unable to lay its hand on any document, suggestive of the fact that at the time of laying pipelines, assurance was given by the defendants that land would be acquired and ::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 12 plaintiff would be paid compensation. Similarly, there is no evidence suggestive of the fact that defendants at the time of laying pipes had assured to offer appointment to the son of the plaintiff. Though, it emerges from the record that son of the plaintiff was working on daily .
wages in the Department but admittedly no evidence has been led on record by the plaintiff that his son got appointment in lieu of land offered by him for laying pipe line. Though, there is no dispute regarding laying of pipeline over the suit land, which definitely of belongs to the plaintiff but work of laying pipeline was started and completed in 1995 whereas, plaintiff at first instance filed Civil Suit rt bearing No. 42/1 of 1997 in the year 1997 i.e. after two years, seeking relief of mandatory injunction but admittedly, same was dismissed in default. At the cost of repetition, it may be stated that though the plaintiff claimed that he got suit dismissed in default since his son was provided employment on daily wages by the defendants but aforesaid version of the plaintiff was not rightly accepted by the Courts below in the absence of cogent and convincing evidence adduced on record by the plaintiff, whereas as has been noticed above, perusal of Ext. P3 i.e. order dated 6.7.1998, clearly suggests that earlier suit filed by the plaintiff was dismissed in default for non-appearance of the plaintiff. In the written statement, defendant have admitted that the son of plaintiff was offered appointment in the Department but they stated that son, who was working in their Department, himself abandoned the job.
Similarly, this Court finds no evidence in support of the claim of the plaintiff that at the relevant time, when pipe line was being laid by the ::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 13 defendants, he was assured by the officials of the Department that he would be paid adequate compensation after acquisition of land rather, this Court, after noticing that earlier suit was filed in the year 1997, is convinced and satisfied that water pipe line was laid through the land .
of plaintiff with the consent of the plaintiff. Had the plaintiff not consented for laying pipe through his land, he would have raised dispute immediately but in the present case, as has clearly emerged, dispute for the first time was raised after two years in 1997.
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18. Interestingly, in the present case, earlier suit filed by plaintiff was dismissed on 6.7.1998. and thereafter no effort was made by the rt plaintiff to get that suit restored by moving application in accordance with law rather the plaintiff chose to wait for another five years to file another Civil Suit being Civil Suit No. 75/1 of 2003, which itself suggests that the plaintiff had no cause of action rather instant suit has been filed solely with a view to pressurize the defendants to either pay compensation in lieu of land or to offer employment to his son, who admittedly abandoned the job.
19. This Court, after carefully examining the entire evidence led on record by respective parties, sees no illegality or infirmity in the judgments passed by the Courts below and as such there is no force in the contentions raised by the plaintiff that there has been non-
consideration of oral as well as documentary evidence, which goes to the root of the matter. This Court, with a view to answer aforesaid substantial question of law, minutely examined entire evidence led on record and found no reason to differ with the findings returned by the ::: Downloaded on - 15/04/2017 21:41:33 :::HCHP 14 learned Courts below, which otherwise appear to be based on correct appreciation of evidence adduced on record. Similarly, this Court, after perusing Ext. P3 sees no illegality in the findings returned by the Courts below that instant suit filed by the plaintiff is barred in law.
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20. Substantial questions of law are answered accordingly.
21. Consequently, in view of aforesaid discussion above, there is no merit in the present appeal and the same is dismissed.
22. Pending applications, if any, are disposed of. Interim directions, of if any, are also vacated.
23. This Court, after noticing the fact that the land of the plaintiff rt has been used by the defendants, that too without paying any compensation to the plaintiff, deems it fit to direct the defendants to consider the request, if any, made by the plaintiff for offering job to his son, who was working with the defendants as daily wager.
(Sandeep Sharma) Judge December 6, 2016 (Vikrant) ::: Downloaded on - 15/04/2017 21:41:33 :::HCHP