Himachal Pradesh High Court
Sh. Rattan Singh vs Sh. Rattan Singh & Others on 15 September, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA
ON THE 15th DAY OF SEPTEMBER, 2022
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
REGULAR SECOND APPEAL No.133 of 2008
Between:
1. SH. RATTAN SINGH,
2. SH. PREM SINGH,
3. SH. ROSHAN LAL,
4. SH.
AJMER SINGH,
5. SH. MEENA RAM
ALL SONS OF SH. SAWARIA
RAM, RESIDENTS OF
VILLAGE KOLAR, TEHSIL
PAONTA SAHIB, DISTRICT
SIRMOUR, H.P.
....APPELLANTS.
(BY MR. R.K.GAUTAM, SENIOR ADVOCATE, WITH MR. SAHIL
DAXIT, ADVOCATE)
AND
SH. RONKI LAL, S/O SH.
SHEESH RAM, RESIDENT OF
VILLAGE KOLAR, TEHSIL
PAONTA SAHIB, DISTRICT
SIRMOUR, H.P.
.... RESPONDENT.
(BY MR. BIMAL GUPTA, SENIOR ADVOCATE, WITH
MS. KUSAM CHAUDHARY, ADVOCATE)
Whether approved for reporting?1 Yes
1
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2
This appeal coming on for hearing stage this day, the Court passed the
.
following:
JUDGMENT
By way of this appeal, the appellants have assailed judgment and decree dated 08.03.2006, passed by the Court of learned Civil Judge, (Jr. Division), Court No.1, Paonta Sahib, District Sirmaur, H.P., in Civil Suit No.29/1 of 2004, titled Sh. Ronki Lal Versus Sh. Rattan Singh & others, in terms whereof, the suit for permanent prohibitory and mandatory injunction and in the alternative, for possession was decreed by the learned Trial Court, as also the judgment and decree 26.12.2007, passed by the Court of learned District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No.37CA/13 of 2006, tilted Shri Rattan Singh & others Versus Shri Ronki Lal, in terms whereof, the judgment and decree passed by the learned Trial Court was upheld by the learned Appellate Court while dismissing the appeal of the present appellants.
2. Brief facts necessary for the adjudication of the present appeal are that respondentplaintiff (hereinafter to be referred as 'plaintiff') filed a suit for permanent and mandatory injunction and in the alternative for possession against the defendants, on the ground that the plaintiff was exclusive ownerinpossession of land ::: Downloaded on - 22/09/2022 20:00:21 :::CIS 3 comprised in Khata No.189, Khatauni No.305 min. Khasra .
No.456/430, measuring 318 bighas situated in Patti Masania of Mouza Kolar, Tehsil Paonta Sahib, District Sirmaur, H.P. and defendants being strangers to the suit land had startied digging foundation for construction of their house and chhappars in the suit land, without any right. Record demonstrates that though, initially the suit was filed only for permanent prohibitory and mandatory injunction, but subsequently, amendment was carried out in the plaint and alternative relief of decree for possession was also incorporated therein.
3. The suit was resisted by the defendants, inter alia, on the ground that Jiwan Singh had exchanged 05 bigha land out of the suit land towards Khasra No. 455/430, in the year 197071, in lieu of their abadi land and immediately after the exchange, the defendants had constructed their cattle shed and kachcha chhappars over the same in the year 1971 itself. This construction was carried out to the notice of Jiwan Singh and others openly and without any obstruction. According to the defendants, this fact was intentionally suppressed and concealed by the plaintiff and as the construction of cattle shed and Kachcha Chhappars was carried out on land measuring 05 bigha, towards khasra No.455/430, therefore, the plaintiff was having no right, title and interest over the ::: Downloaded on - 22/09/2022 20:00:21 :::CIS 4 same, because of the exchange that had taken place. It was further .
the stand of the defendants that as the plaintiff was out of possession of the suit land and in case exchange was not proved, then they had perfected their title over the suit land by way of adverse possession.
4. On the basis of the pleadings of the parties, learned Trial Court framed the following issues: "1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP
2. Whether the defendants have encroached 05 bighas of the suit land during the suit land during the pendency of this suit? OPP
3. If issue No. 2 is held in affirmative, whether the plaintiff is entitled to the relief of mandatory injunction by way of demolition of super structure, as prayed for? OPP
4. Whether the plaintiff is entitled to the relief of possession of 05 bighas of the suit land comprised in khasra No. 456/430/1 as prayed for? OPP
5. Whether the suit is not maintainable? OPD
6. Whether the plaintiff has no locusstandi to file the suit? OPD
7. Whether the plaintiff has no cause of action ? OPD
8. Whether the defendants are in possession of 05 bighas of suit land in lieu of an exchange as pleaded in para No.4 of w. as alleged ? OPD ::: Downloaded on - 22/09/2022 20:00:21 :::CIS 5
9. Whether the defendants have become owner of this 05 .
bighas of the suit land by way of adverse possession, if the plea of exchange fails ? OPD 10 Relief."
5. On the strength of evidence which was led by the parties in support of their respective contentions, the issues so framed were answered by learned Trial Court as under: "Issue No.1 : Yes Issue No.2 : Yes Issue No.3 : Yes Issue No.4 : Redundant Issue No.5 : No. Issue No.6 : No. Issue No.7 : No. Issue No.8 : No. Issue No.9 : No. Issue No.10 : No. RELIEF : Suit decreed per operative part of judgment."
6. Learned Trial Court, thus decreed the suit by holding that the defendants had failed to prove the plea of oral exchange of land as taken by them and evidence was contrary to the pleadings and not sufficient to prove the plea of exchange. Learned Trial Court also held that the defendants failed to demonstrate that they had perfected their title by way of adverse possession over 05 bigha of ::: Downloaded on - 22/09/2022 20:00:21 :::CIS 6 the suit land. Learned Trial Court further held that as defendants .
had failed to prove on record that they had come in possession of the suit land on the basis of some exchange and further as they had failed to prove that their title stood perfected by way of adverse possession, therefore, the defendants had admittedly encroached upon the suit land and that too, during the pendency of the suit, as was proved from the evidence on record, more so in light of the statement of DW2 Lachhmi Chand, in the course of his cross examination. On these basis, learned Trial Court held that the plaintiff was entitled to the relief of permanent prohibitory as well as mandatory injunction by removal of temporary sheds and foundations.
7. In appeal, these findings were upheld by the learned Appellate Court.
8. Learned Appellate Court held that the contention of the defendants was that they were in possession of the suit land since 1971 after the exchange was affected, as pleaded by them. This assertion of the defendants, however, stood falsified not only from the evidence led by the plaintiff, but also from the statement of DW2 Lachhmi Chand, as was also held by the learned Trial Court.
Learned Appellate Court held that DW2 Lachhmi Chand had admitted in his crossexamination that whatsoever construction was ::: Downloaded on - 22/09/2022 20:00:21 :::CIS 7 there, the same was commenced by the defendants only a year back, .
i.e. somewhere in the month of June, 2004, because statement of this witness was recorded in the month of June, 2005 and therefore, this demonstrated that encroachment upon the suit land as well as construction carried thereupon was in the course of pendency of the suit. Learned Appellate Court further upheld the findings returned
9.
r to by the learned Trial Court that the plea of adverse possession was not substantiated on record by the defendants.
The application, filed under Order 18, Rule 18 of the Civil Procedure Code, read with Order 26, Rule 9 thereof, in which prayer was made by the appellants/applicants for spot inspection either by the Court or by way of appointment of Local Commissioner to reappreciate the evidence on the spot before learned Appellate Court was rejected by the same by holding that the question of visiting the spot or appointment of Local Commissioner would have arisen only, had there been material ambiguity in the evidence which could not have been explained, or in the alternative encroachment, if any proved of the land, could not be properly identified qua its placement on the spot or the dimensions thereof.
Learned Appellate Court held this not being the case, a party could not be allowed to fish for evidence at the appellate stage or to create new evidence to the disadvantage of the other parties. On these ::: Downloaded on - 22/09/2022 20:00:21 :::CIS 8 findings, the application was dismissed and on the basis of the .
findings which have been narrated hereinabove, learned Appellate Court while upholding the findings returned by the learned Trial Court, dismissed the appeal.
10. Feeling aggrieved, the appellants have filed this Regular Second Appeal, which was admitted by the Court on 14.08.2008, on the following substantial questions of law:
1. Whether the impugned judgment passed by the lower appellate court is not sustainable in the eyes of law as the learned judge has failed to discuss in detail the evidence on record which was otherwise required to do so being the highest fact finding court?
2. Whether the learned lower appellate court is wrong in dismissing the application under Order 18 Rule 18 read with Order 26 Rule 9 Code of Civil Procedure filed by the appellants before him?
11. I have heard learned counsel for the parties and have also carefully gone through the judgments and decrees passed by both the learned Courts below as well record of the case.
12. I will answer both the substantial questions of law separately.
Substantial Question of Law No.1
13. A perusal of the judgments passed by both the learned Courts below demonstrate that there are concurrent findings ::: Downloaded on - 22/09/2022 20:00:21 :::CIS 9 returned by both the learned Courts below to the effect that '(a) .
defendants miserably failed to prove their plea of exchange of land in the year 1971 from one Jiwan Singh, (b) defendants failed to prove that their possession upon the suit land was from the year 1971, (c) defendants failed to demonstrate that they had perfected their title upon the suit land by way of adverse possession and that record demonstrated, including the statement of DW2 Lachhmi Chand, that encroachment upon the suit land was made by the defendants during the pendency of the suit and whatever construction was carried thereupon was also during the pendency of the suit'.
A perusal of the record as well as the judgments passed by the learned Courts below demonstrate that these findings were returned by the learned Courts below after taking into consideration the statements of plaintiff's witnesses as well as the documents which were exhibited on record by the plaintiff. The fact that stand of the defendants in the written statement was that they had come in possession of the suit property by way of an exchange which was entered into by them with one Jiwan Singh itself amounts to admission on the part of the defendants that in fact they were not owners of the suit land. Now, a perusal of the record demonstrates that Jiwan Singh entered into the witness box as PW3 and he did not support the case of the defendants. A careful perusal of cross ::: Downloaded on - 22/09/2022 20:00:21 :::CIS 10 examination of this witness demonstrates that the credibility of what .
he stated in in his examinationinchief, was not impaired in his crossexamination. Therefore, this Court has no hesitation in holding that the findings which have returned by the learned Courts below by holding that (a) defendants miserably failed to prove their plea of exchange of land in the year 1971 from one Jiwan Singh, (b) r to defendants failed to prove that their possession upon the suit land was from the year 1971, (c) defendants failed to demonstrate that they had perfected their title upon the suit land by way of adverse possession and that record including the statement of DW2 Lachhmi Chand proved that encroachment upon the suit land was done by the defendants during the pendency of the suit and whatever construction was carried thereupon was also during the pendency of the suit, are clearly borne out from the record of the case. Further, as the judgment passed by the learned Lower Appellate Court is in the nature of affirming the judgment passed by the learned Trial Court, therefore, it cannot be said that the learned Appellate Court failed to discuss in detail the evidence on record.
Substantial Question of Law is answered accordingly.
Substantial Question of Law No.2
14. Order 18, Rule 18 of the Civil Procedure Code, provides that the Court at any stage of a suit may inspect any property or ::: Downloaded on - 22/09/2022 20:00:21 :::CIS 11 thing concerning which any question may arise and where the Court .
inspects any property or thing, it shall as soon as may be practicable, makes a memorandum of any relevant facts observed at such inspection and such Memorandum shall form a part of the record of the suit. Similarly, the provisions of Order 26, Rule 9 of the Code of Civil Procedure, inter alia, provides that in any suit in which the Court deems local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, then the Court may issue a Commission to such person as it thinks fit, directing him to make such investigation and to report thereon to the Court.
15. This Court is of the considered view that the provisions of Order 18, Rule 18, as also Order 26, Rule 9 of the Civil Procedure Code, exist to facilitate the cause of justice and the powers enshrined therein have to be exercised by the Court, if the facts of the case so demand, but these provisions cannot be permitted to be invoked by a party to fill in the lacunae in his case. In other words, these provisions cannot be permitted to be resorted to by a party, calling upon a Court of Law to create evidence in his favour.
16. The prayer made in the application by the applicants/ appellants was for appointment of a Local Commissioner or for spot inspection by the Court to ascertain whether there was any encroachment as alleged by the plaintiffs and further to ascertain ::: Downloaded on - 22/09/2022 20:00:21 :::CIS 12 the issue of construction which stood carried out upon the suit land .
as also for plantation of fruit trees etc.
17. A quick reference to the stand of the appellants in the written is necessary at this stage also. The suit was resisted by the defendants on the ground that the suit land stood exchanged by them with Jiwan singh and that too as far back as in the year 197071, in lieu of their Abadi and immediately after the exchange, the defendants had constructed their cattle sheds and Kachcha Chhappars over the same in the year 1971 itself. This stand of theirs has been disbelieved by both the learned Courts below. Therefore, in the backdrop of the defendants having failed to prove that they had come in possession of the suit land by way of exchange, the spot inspection by the Court or appointment of a Local Commissioner would not having facilitated the adjudication of the case as the material was already available with the learned Courts below to adjudicate upon the lis.
18. Similarly, the plea of adverse possession taken by the defendants could not be substantiated by them and further it had come in the statement of DW3 itself that whatever construction was carried out upon the suit land was carried out one year as from the date when he was making the statement in the Court. The statement so made by this witness in the Court in the month of June, 2005 ::: Downloaded on - 22/09/2022 20:00:21 :::CIS 13 and this obviously means that the construction activity was carried .
out by the defendants upon the suit land in the year 2004, i.e. during the pendency of the suit. To this effect also, there are concurrent findings returned by both the learned Courts below. In this background, when one peruses the findings which have been returned by the learned Appellate Court by dismissing the said application which already stand enumerated by me hereinabove, this Court does not finds any perversity therein. Substantial question of law is answered accordingly.
19 . In view of above discussion, as this Court does not finds any merit in the present appeal, the same is, accordingly, dismissed, also the pending miscellaneous applications, if any. No order as to cost. Interim order, if any, stands vacated.
(Ajay Mohan Goel) Judge September 15, 2022 (Rishi) ::: Downloaded on - 22/09/2022 20:00:21 :::CIS