Bakhtawar Singh Son Of Late ... vs Tarsem And
2021 Latest Caselaw 3772 HP

                                      1

         IN   THE    HIGH COURT OF HIMACHAL         PRADESH, SHIMLA

                       ON THE 9th DAY OF AUGUST, 2021




                                                            .
                                  BEFORE





                    HON'BLE MR. JUSTICE SANDEEP SHARMA

                    REGULAR SECOND APPEAL No.280 of 2006





       Between:

    1. BAKHTAWAR SINGH SON OF LATE SH.DATA RAM,
    2. SMT. SOMA DEVI, WIDOW OF LATE SH.RAM ASRA,





    3. VIPAN KUAMR SON OF LAE SH.RAM ASRA (MINOR),
    4. ANIL KUMAR SON OF LATE SH. RAM ASRA(MINOR),
       (APPELLANTS NO.3 AND 4 ARE MINOR, THORUGH

       HER MOTHER AND NATURAL GUARDIAN SMT.

       SOMA DEVI, APPELLANT NO.2).
    5. SMT. URMILA DEVI WIDOW OF LATE SH. SANDEEP
        KUMAR,


    6. KARTIK SON OF LATE SH. SANDEEP KUMAR,
       (MINOR),
    7. NIKHIL SON OF LATE SH. SANDEEP KUMAR




       (MINOR)





       (APPELLANTS NO.6 AND 7 ARE MINOR THROUGH
       THEIR MOTHER     AND NATURAL GUARDIAN SMT.
       URMILA DEVI, APPELLANT NO.5)





    8. WATTAN CHAND SON OF SH. SHIBBA,
       ALL ARE RESIDENTS OF VILLAGE BATHRI,
       SUB TEHSIL HAROLI, TEHSIL AND DISTRICT UNA,
       HIMACHAL PRADESH.




                                                           ......APPELLANTS




                                           ::: Downloaded on - 31/01/2022 22:50:56 :::CIS
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      (BY SH. R.K.GAUTAM, SENIOR ADVOCATE WITH
      MR. GAURAV GAUTAM, ADVOCATE)




                                                              .
      AND





    1. TARSEM LAL SON OF SH. BASANTA,
    2. PREM CHAND SON OF SH. BASANTA (DECEASED)





      THOUGH HIS LEGAL REPRESENTATIVES).
      (A).   SMT. KAMLESH WIFE OF LATE SH. PREM CHAND,
      (B).   SH. TILAK RAJ SON OF LATE SH. PREM CHAND,
    3. HANS RAJ SON OF SH. BASANTA,





    4. SUKHDEV SON OF SH. BASANTA,
    5. SODI RAM SON OF SH. BASANTA,
      ALL RESIDENTS OF VILLAGE AND POST OFFICE

      BATHRI, TEHSIL HAROLI, DISTRICT UNA,

      HIMACHAL PRADESH
                                                         ......RESPONDENTS
      (BY SH.P.M.NEGI, ADVOCATES)



      This Appeal coming on for orders this day, the Court passed the
      following:




                  JUDGMENT

Instant Regular Second Appeal under Section 100 of

CPC, lays challenge to judgment and decree dated 30.3.2006,

passed by learned District Judge Una, District Una, Himachal

Pradesh in Civil Appeal No.31 of 2005, affirming the judgment and

decree dated 28.3.2005 passed by learned Civil Judge (Senior

Division) Una, District Una, Himachal Pradesh in Civil Suit No.78

of 1995, titled as Datta Ram and others versus Tarsem and

others, whereby suit for permanent prohibitory injunction, having

been filed by the appellant-plaintiff, came to be dismissed.

.

2. Precisely, the facts of the case as emerge from the

record are that the plaintiff filed a suit for permanent prohibitory

injunction restraining the defendants ( hereinafter referred to as

the defendants) from making any sort of interference by blocking,

causing any obstruction, hindrance in any manner and to divert

the natural flow of water over the land or 'NIHALI' of the plaintiff

situate in Khasra No.1511 or raising any embankment on the

natural flow of rain and used street water flowing in the 'Nallah'

shown in red colour in the site plan situated to the north of

Khasra No.1508 measuring 18x2 meters to the south of Khasra

No. 1575 being part and parcel of Khasra No.1575 belonging to

the defendants comprised in Khewat No.311, Khatauni No.360 as

entered in Missal Haquiat Ishtemal for the year 1987-88 situate

in village Bathri, H. B. No.476, Sub Tehsil Haroli, Tehsil and District

Una, Himachal Pradesh.

3. Plaintiff in the in the plaint alleged that the natural

flow of water from the street passes through the said ''Nallah'

from west to east and enters in the "Choe'. Plaintiff claimed that

aforesaid water is flowing since the time immemorial without any

obstruction and is in the knowledge of the defendants as well as

their predecessor. A (Nihali workshop) is situated to the south of

Khasra No.1508 in pre-consolidation Khasra No.1043 and the

defendants with a view to cause damage to said 'Nihali' shown in

.

the site plan in green colour and also to land of new Khasra

Nos.1511, 1514, threatened a week before to create interference

and obstruction by raising embankment etc. in the water flow

and to fill such 'Nallah' ' so as to divert water flow towards Nihali

of the plaintiffs, which act is illegal and uncalled for.

4. Aforesaid suit having been filed by the plaintiff came

to be resisted on behalf of defendants, who in their written

statement claimed that subject matter of the suit is subjudice

before Hon'ble High Court in writ petition No.25/1991 and as

such, suit is liable to be stayed under Section 10 of CPC. On

merits, defendants claimed that there was no such 'Nallah' to

intake rainy water of the abadies, as alleged. Defendants alleged

that plaintiffs have raised abadi in old Khasra No.1575 and no

land remains vacant. Defendants further claimed that the site

plan annexed with the plaint is wrong and they want to carve out

forcibly a 'Nallah' through their land in the garb of instant suit.

Defendants also claimed that the natural flow of water passes

through village street and passage leading to the abadies of

Loharan and onwards. Defendants while reiterating that there

exists no 'Nallah' in the suit land comprised in Khasra No.1508,

claimed that water flows through a passage which runs parallel

to the east of alleged 'Nihali'. Defendants claimed that there is

no such Nihali on the spot. Defendants averred in the written

.

statement that there is no question of filling of 'Nallah' as there

was never a 'Nallah' at the spot. Defendants claimed that dispute

is regarding carving out the passage and allotment of land for

Nihali out of old Khasra No.1043.

5. In replication, plaintiff specifically denied the factum

with regard to pendency of civil writ petition before this Court

qua the suit land and claimed that suit was maintainable being

well founded. Plaintiff also claimed that there was no occasion for

the plaintiff to carve out a 'Nallah' forcibly and the same already

exists on the spot.

6. On the basis of the pleadings adduced on record by

the respective parties, following issues were framed:-

1. Whether the plaintiffs are entitled to the relief

of injunction as prayed for? OPP.

2. Whether the suit is barred under section 10 CPC?

OPD.

3. Whether the suit is not maintainable? OPD.

4. Whether this Court has no jurisdiction to try this suit? OPD.

5. Relief:-

7. Learned trial court on the basis of the pleadings as

well as evidence adduced on record by the respective parties,

dismissed the suit of the plaintiff and as such, he approached

learned District Judge, Una, District Una, H.P. by way of appeal

under Section 96 CPC, however aforesaid appeal was also

.

dismissed vide judgment dated 30.3.2006. In the aforesaid

background, plaintiff has approached this Court in the instant

proceedings, praying therein to decree the suit after setting

aside the judgments and decrees passed by learned Courts

below.

8. Appeal having been filed by the plaintiff came to be

admitted on 30.8.2013, on following substantial questions of

law:-

"1. That the learned lower appellate court misread the evidence and misinterpreted the admission made by the defendant, what is its effect?.

2. Whether the learned Courts below based its judgments purely against the pleadings?.

3. Whether the judgment given by the learned

lower Appellate Court is sound in law which is against the pleadings?".

9. Having heard learned counsel representing the

parties and perused the material available on record vis-à-vis

judgments and decrees passed by learned Courts below, this

court finds it difficult to agree with the contention raised by

learned counsel representing the plaintiff that learned Courts

below failed to appreciate the evidence in its right perspective,

rather this court after having carefully scanned the pleadings as

well as evidence led on record, finds no illegality and infirmity in

the impugned judgments and decrees passed by learned Court

.

below, which appear to be based on proper appreciation of

evidence adduced on record by the respective parties.

10. Careful perusal of copy of Missal Haquiat

Consolidation Ex.P.1 for the year 1987-88, clearly shows that suit

land comprised in Khasra No.1508 stands recorded in the

ownership and possession of the defendants and similarly Ex.P-2

i.e. copy of Missal Haquiat for the year 1987-88 shows land

comprised Khasra No.1511 to be owned and possessed by the

plaintiffs and other co-sharers. Ex.P-3 i.e. Missal Haquiat for the

same year shows Khasra No.1507, 1509 and 1510 to be owned

by the proprietors being Shareaam.

11. PW-1, Payre Lal , who stated to have prepared site

plan Ex.PW1/A at the spot highlighting flow of water in blue

colour, in his cross-examination, categorically admitted that at

the time of preparing site plan, as referred above, neither he

called opposite party nor Patwari.

12. Plaintiff, Wattan Chand, in his affidavit, which he

tendered in evidence, deposed that their Nihali exists on Khasra

No.1511 and abadies in Khasra No.1506. He claimed that the

defendants are owners of Khasra No.1508 and on the part of

which, there exists a 'Nallah' followed by Khasra No.1575 owned

by Harnam Singh. This witness deposed that water of abadi and

fields passes through such 'Nallah' since time immemorial, but

.

defendants extended threats to raise construction on such

'Nallah' and to fill it with mud to obstruct water flow and to

divert the same towards their Nihali. This witness also deposed

that defendants have started collecting material for such

construction. This witness while referring to site plan Ex.DW1/A,

claimed that site plan adduced on record by the defendants is

not correct, rather correct position of the spot has been depicted

in site plan Ex.PW1/A. In cross-examination, aforesaid witness

admitted that Khasra No.1508 belongs to Tarsem Lal etc. i.e.

defendants and their boundaries are fixed by them. However,

this witness self stated that they had left 2 meters 'Nallah' in the

aforesaid land. If the aforesaid admission made by PW-2 in his

cross-examination is examined vis-à-vis averments contained in

the plaint, learned counsel representing the defendants is right in

claiming that once there is no such assertion in the plaint that

defendants had left two meters of land in Khasra No.1508 for

'Nallah', aforesaid deposition made on behalf of the plaintiff

cannot be taken into consideration. This witness further admitted

that there exists a 'Gohri' in between his abadi and Khasra

No.1508, but self stated that they had challenged this 'Gohri'. He

further denied that the 'Gohri' situated in between his abadi and

Khasra No.1508 is used as a passage by whole village. This

witness denied that his as well as water of other village land

.

passes through this 'Gohri'. This witness further admitted that

defendants cultivate their Khasra No.1508, but self stated that

they left two meters of land for such 'Nallah'. If the statements of

PW-1 and PW-2 are read in conjunction juxtaposing each other, it

reveal that though plaintiff has claimed that defendants had left

two meters of land in Khasra No.1508 for 'Nallah', but neither

such fact ever came to be pleaded in the plaint nor plaintiff ever

placed on record correct specification, if any, with regard to

'Nallah' allegedly existing on the north side of Khasra No.1508.

PW-2, has categorically admitted in his cross-examination that

defendants cultivate their Khasra No.1508. Though, this witness

claimed that defendants have left two meters land for such

'Nallah', but since no specification with regard to existence of

'Nallah' in Khasra No.1508 ever came to be placed on record,

claim of the plaintiff regarding existence of such 'Nallah' in two

meters of land in Khasra No.1508 cannot be accepted.

Interestingly, plaintiffs not examined any person from village to

support his aforesaid claim. PW-1, who had an occasion to

prepare site plan Ex.PW1/A has categorically admitted in his

cross-examination that at the time of preparation of site plan

Ex.PW1/A, no revenue officials was associated by him and as

such, site plan having been prepared by him otherwise cannot be

taken into consideration, especially when no specific details with

.

regard to dimensions of 'Nallah' ever came to be placed on

record. Interestingly, PW-2 i.e. plaintiff in his cross-examination

stated that defendants extended threats in March, 1995 in

presence of his brother Data Ram. He stated that there was no

other person from outside. He also denied that defendant did not

obstruct their water which flows as usual and stated that threats

were extended in March, 1995 followed by another spell of

threats after ten days followed by institution of this suit.

However, there are no specific details with regard to date and

timing when defendants allegedly extended threats to cause

obstruction.

13. Defendant Tarsem Lal (DW-1) while reiterating the

assertion made in the written statement tendered evidence by

way of affidavit and admitted in the cross-examination that

field of Harnam Singh exists on north of his land, which was

otherwise pointed out to be the real position shown in the site

plan Ex.PW1/A. This witness also deposed that 'Gohri' is located

in between Khasra Nos.1508 and 1575.

14. Mr. Gaurav Gautam, learned counsel representing the

plaintiff while referring to aforesaid statement made by

defendant Tarsem Lal, argued that since once Tarsem Lal

admitted that entire water of the area of Tarkhans flows through

the 'Gohri' and that 'Gohri' is situate in between Khasra

.

Nos.1508 and 1575 (vide site plan Ex.PW1/A), plaintiff claim

stands established by defendants evidence, but aforesaid

submissions made by Mr. Gaurav Gautam, learned counsel for

the plaintiff is of no consequence for the reason that pleadings or

evidence led on record by the plaintiff nowhere suggest that

there exists a 'Gohri' between Khasra No.1508 and 1575 through

which water of their residential area and fields flows, rather

plaintiffs have claimed that there exists a Nallah in the northern

portion of Khasra No.1508 through which flows the water of a

street or that of their residential area and fields. Otherwise also,

claim of the plaintiff with regard to existence of a Nallah in

Khasra No.1508, is totally contrary to the documentary evidence

available on record. No part of Khasra No.1508 has been shown

to be a 'Nallah' in the Missal Haquiat Istemal 1987-88 Ex.P.1.

15. Leaving everything aside, plaintiffs' claim as to

existence of a Nallah' on the part of Khasra No.1508 otherwise

cannot be accepted for the reason that site plan Ex.PW1/A,

wherein alleged Nallah has been shown to be part of Khasra

No.1508 was prepared by plaintiffs' witness Pyare Lal, a

Draftsman, who in his cross-examination as PW-1 has

categorically admitted that while carrying out demarcation, he

did not make a mention of how the demarcation was carried out

nor did he state that he while carrying out demarcation had

.

observed the relevant instructions of the Finance Commissioner

(Revenue), Himachal Pradesh. Moreover, PW-1 of his own without

associating the defendants and revenue officials proceeded to

demarcate the land and thereafter, prepared site plan Ex.PW1/A

on the basis of same. Interestingly, plaintiff claimed that

defendants extended threats to him in the presence of his

brother Data Ram, but such person Data Ram never came to be

examined and as such, very factum with regard to extension of

threats, if any, by the defendants remains doubtful. Since,

plaintiffs have failed to specifically prove factum with regard to

threats, if any, caused by defendants to cause obstruction in

water flow, suit having been filed by the plaintiffs otherwise

deserves to be dismissed on the ground of cause of action.

16. Having perused the material available on

record, this Court is fully satisfied and convinced that both the

Courts below have very meticulously dealt with each and every

aspect of the matter and there is no scope of interference,

whatsoever, in the present matter. Substantial questions of law

are answered accordingly.

17. Hon'ble Apex Court in Laxmidevamma and Others vs.

Ranganath and Others, (2015)4 SCC 264, wherein it has been

.

held as under:

"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)

18. Aforesaid exposition of law clearly suggests that High

Court, while excising power under Section 100 CPC, cannot upset

concurrent findings of fact unless the same are shown to be

perverse. But, in the case at hand, this Court while examining

the correctness and genuineness of submissions having been

made by the parties, has carefully perused evidence led on

record by the respective parties, perusal whereof certainly

suggests that the Courts below have appreciated the evidence in

its right perspective and there is no perversity, as such, in the

impugned judgments and decrees passed by both the Courts

below. Moreover, learned representing the appellants- plaintiffs

was unable to point out perversity, if any, in the impugned

.

judgments and decrees passed by both the Courts below and as

such, same do not call for any interference.

19. Consequently, in view of the discussion made

hereinabove, this Court is of the view that the judgments and

decrees passed by both the Courts below are based on correct

appreciation of the evidenc-e, be it ocular or documentary on the

record and, as such, present appeal fails and same is

accordingly dismissed.

20. Interim directions, if any, are vacated. All

miscellaneous applications are disposed of.

    9th August, 2021                                  (Sandeep Sharma),
          (shankar)                                      Judge