Gian Chand Son Of Sh. Himat Ram And ... vs Ranveer Singh Son Of Shri Prem Singh on 16 September, 2015

[Cites 8, Cited by 1]

Himachal Pradesh High Court

Gian Chand Son Of Sh. Himat Ram And ... vs Ranveer Singh Son Of Shri Prem Singh on 16 September, 2015

rt __________________________________________________________ For the Revisionists: Mr. Vikas Rajput, Advocate For the Non-Revisionist: Mr. B.S. Chauhan, Sr. Advocate with Mr.Vaibhab Tanwar, Advocate.

P.S. Rana, Judge.

Order:- Present civil revision is filed under Section 115 of Code of Civil Procedure against judgment and decree passed by learned District Judge Mandi in Civil Appeal No. 19 of 2013 titled Ranveer Singh vs. Gian Chand and others decided on 6.8.2014.

Whether Reporters of Local Papers may be allowed to see the judgment? Yes.

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Brief facts of the case

2. Ranvir Singh plaintiff filed suit for possession pleaded therein that land comprised in Khata No. 126 .

min/125 Khatauni No. 168, Khasra No. 3741 measuring 00-05-10 bighas is situated in Mohal Simus 148 Tehsil Bharol District Mandi H.P. and is owned and possessed by the plaintiff. It is pleaded that defendants have encroached upon the suit land and constructed house of over suit land. It is pleaded that plaintiff applied for demarcation and after demarcation by the revenue official rt it was found that defendants encroached upon the suit land and raised the construction of house over suit land. It is pleaded that plaintiff so many times requested the defendants to deliver the possession of suit land after demolition of construction raised by the defendants on suit land. It is pleaded that on 28.11.2009 defendants finally refused to hand over the possession of suit land to plaintiff. Prayer for decree the suit as mentioned in relief clause of plaint sought.

3. Per contra written statement filed on behalf of defendants pleaded therein that suit is not maintainable and plaintiff is estopped by his act and conduct and ::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 3 acquiesance to file the present suit. It is pleaded that suit is time barred and plaintiff has no cause of action in favour of the plaintiff. It is pleaded that suit is not properly .

valued. It is pleaded that defendants are adjoining owners of suit land and they have built their house over Khasra No. 3740 in the year 1997. It is pleaded that defendants have not raised any construction over suit land. Prayer for dismissal of suit sought.

4. Plaintiff filed replication and re-asserted the allegations as mentioned in plaint. On 10.11.2010 learned rt trial Court framed following issues:-

(i) Whether plaintiff is entitled to the relief of possession as alleged? ....OPP

(ii) Whether suit is not maintainable?

....OPD

(iii) Whether plaintiff is estopped by his act conduct and acquiesance? OPD

(iv) Whether suit is time barred? OPD

(v) Whether plaintiff has no cause of action? ....OPD

(vi) Relief.

::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 4 5. Learned trial Court decided issues Nos. 1, 3

and 4 in negative and issues Nos. 2 and 5 in affirmative.

Learned trial Court dismissed the suit filed by the plaintiff.

6. Feeling aggrieved against the judgment and decree passed by learned trial Court Shri Ranveer filed appeal under Section 96 of CPC. Learned District Judge Mandi on 6.8.2014 disposed of the appeal titled Ranveer Singh vs. Gian Chand and others. Learned District Judge of allowed the appeal and set aside impugned judgment and decree passed by learned trial Court. Learned District rt Judge permitted plaintiff to withdraw the suit with liberty to institute fresh suit subject to payment of cost of `2000/-

(Rupees two thousand only). Learned District Judge dismissed the suit filed by the plaintiff as withdrawn.

7. Feeling aggrieved against the judgment and decree passed by learned District Judge Mandi Gian Chand and others filed present civil revision.

8. Court heard learned Advocate appearing on behalf of revisionists and learned Advocate appearing on behalf of non-revisionist and Court also perused entire record carefuly.

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9. Following points arise for determination in civil revision petition:-

1. Whether civil revision is liable to be accepted as mentioned in memorandum of .

grounds of revision petition?

2. Final order.

10. Reasons for findings upon Point No.1 10.1 PW1 Ranveer Singh has stated that area of of suit land is 0-5-10 bighas and he is owner of suit land. He has stated that Gian Chand had constructed a house over rt his land. He has stated that he stopped the defendants not to construct house over his land but defendants did not accept his request. He has stated that thereafter suit land was got demarcated. He has stated that in demarcation it was found that defendants have raised the construction over the land owned by the plaintiff. He has stated that after demarcation defendants did not agree to vacate the suit land and thereafter he filed the present suit. He has stated that possession of land be delivered to him. He has stated that copy of jamabandi is Ext.PW1/A and demarcation report is Mark A and application for demarcation is Mark B and copies of tatima are Mark C ::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 6 and Mark D. In cross examination he has admitted that he had purchased the land fifteen years ago in the year 2002. He has denied suggestion that Gian Chand had .

raised construction in the year 1997. He has stated that at the time of demarcation Halqua Patwari, Field Kanungo, Panchayat Pardhan Sarla Devi and Up-Pardhan Braham Dass were present. He has denied suggestion that construction was raised with consent of prior owner. He of has denied suggestion that Gian Chand is in settled possession of suit land since the year 1997.

10.2 rtPW2 Mukesh Clerk posted in Tehsil Office has stated that he has brought the summoned record. He has simply produced record.

10.3 PW3 Sunil Dutt Patwari has stated that document Ext.PW2/A was prepared by him. He has stated that document has been prepared as per factual position.

He has stated that Field Kanungo had demarcated the suit land. He has stated that thereafter as per direction of Field Kanungo he had prepared the tatima (Field map). In cross examination he has stated that tatima (Field map) is not signed by Field Kanungo. He has stated that demarcation was conducted with the help of mussabi. He ::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 7 has denied suggestion that wrong demarcation was conducted.

10.4 DW1 Gian Chand has tendered his affidavit .

Ext.DW1/A in examination-in-chief. There is recital in affidavit that plaintiff has obtained demarcation report in connivance with Halqua Patwari in the absence of deponent. There is further recital in affidavit that deponent has constructed the house in the year 1991 of when plaintiff was not owner of suit land. There is further recital in affidavit that deponent is adjoining owner of rt Khasra No. 3740. There is further recital in affidavit that dispute has arisen inter se the parties due to wrong demarcation conducted without help of mussabi. In cross examination he has denied suggestion that he raised construction over the suit land. He has stated that he had constructed the house in the year 1991. He has denied suggestion that plaintiff has stopped him from raising construction.

10.5 Parties placed on record documents i.e. (1) Ext.PX jamabandi for the year 2000-2001. (2) Akas Tatima (Field map) Ext.PW2/A. There is recital in jamabandi Ext.PX for the year 2000-2001 that Khasra No. 3741 was ::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 8 exclusively owned by Prem Singh son of Rikhi Ram and thereafter vide mutation No. 574 suit land was exchanged in favour of Ranjit Singh, Ranvir Singh in equal share.

11. Submission of learned Advocate appearing on behalf of revisionists that learned first Appellate Court had committed illegality by way of giving permission to the plaintiff to withdraw the suit with liberty to institute a fresh suit in respect of same matter under Order 23 Rule 3 of read with Section 151 CPC is accepted for the reasons hereinafter mentioned. There are two provisions for rt withdrawal of civil suit. (1) Order 23 Rule 1. (2) Order 23 Rule 3. It is held that under Order 23 Rule 1 party can withdraw the suit unconditionally even during the appellate stage of case. It is held that when suit is withdrawn with permission to file fresh suit on same cause of action then party has to satisfy the following ingredients as mentioned under Order 23 Rule 3 of CPC 1908. Under Order 23 Rule 3 the party has to satisfy (1) That a suit must fail by reason of some formal defect. (2) That there are sufficient grounds for allowing the plaintiff to institute fresh suit on same cause of action. In present case it is proved on record that learned trial Court ::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 9 dismissed the suit of plaintiff on merits and thereafter plaintiff filed the first appeal before learned District Judge Mandi. It is well settled law that party cannot be allowed .

to withdraw the suit during the appellate stage so as to destroy the decree passed by learned trial Court in favour of adverse party. It is well settled law that right which has accrued in favour of party cannot be taken away by way of withdrawal of suit during the appellate stage of case. It of was held in case reported in 1986 P.L.J.538 (P&H) titled Piare Lal vs. Murari Lal that plaintiff is not entitled to withdraw rt the suit as a matter of course at any time after decree passed by trial Court. (See AIR 1984 P&H 221 titled Jubedan Begum and others vs. Sekhawat Ali Khan. See AIR 1986 P&H 228 titled Gurnek Singh and another vs. Gurbachan Singh and others. See (2000)5 SCC 458 titled K.S. Bhoopathy and others vs. Kokila and others. See Latest HLJ 2014 (HP) 559 titled Nand Kumar vs. Gajinder Singh and others. See 2003(2) Shim.L.C.24 titled Man Sukh vs. Jagdish Chand)

12. Submission of learned Advocate appearing on behalf of non-revisionist that during the pendency of appeal fresh cause of action occurred in present case relating to encroachment in favour of non-revisionist and therefore learned District Judge has rightly granted ::: Downloaded on - 15/04/2017 18:55:56 :::HCHP 10 permission to file fresh suit on same cause of action to non-revisionist is rejected being devoid of any force for the reasons hereinafter mentioned. It is true that civil .

appeal titled Ranveer Singh vs. Gian Chand was filed on 26.4.2013 before learned District Judge Mandi and it is also true that subsequent demarcation was conducted by Field Kanungo during the pendency of first appeal pending before learned District Judge. Court is of opinion that of Ranveer Singh could prove subsequent demarcation report by way of filing application under Order 41 Rule 27 rt CPC during pendency of appeal for producing additional evidence in Appellate Court. It is proved on record that Ranveer Singh has filed application under Order 41 Rule 27 CPC for permission to lead additional evidence relating to demarcation report but learned District Judge did not dispose of application filed under Order 41 Rule 27 CPC. It is held that subsequent demarcation report could be proved under the provisions of Order 41 Rule 27 CPC in accordance with law before learned first Appellate Court.

It is held that there is no formal defect in civil suit. It is held that there are no sufficient grounds for allowing plaintiffs to institute fresh suit on same cause of action.

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Application filed by plaintiff under Order 23 Rule 3 CPC is dismissed. Point No.1 is decided in favour of revisionist.

Point No. 2 (Final Order) .

13. In view of above stated facts and case law cited supra judgment and decree passed by learned District Judge Mandi on 6.8.2014 in Civil Appeal No. 19 of 2013 titled Ranveer Singh vs. Gian Chand are set aside and case is remanded to learned first Appellate Court i.e. of District Judge Mandi (H.P.) for deciding the appeal afresh on merits in accordance with law. Learned District Judge rt Mandi is also directed to decide the application filed under Order 41 Rule 27 CPC strictly in accordance with law.

Parties are directed to appear before learned first Appellate Court on 16.10.2015. File of learned Trial Court and first Appellate Court be transmitted forthwith along with certified copy of this order. No order as to costs. All pending miscellaneous application(s) if any also stands disposed of. Civil Revision is disposed of.







                                                  (P.S.Rana),
    September 16,2015(ms)                           Judge.




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