Himachal Pradesh High Court
Sh. Rajinder Paul vs Salig Ram on 17 August, 2021
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 17th DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
REGULAR SECOND APPEAL No. 435 of 2007
Between:
1. SH. RAJINDER PAUL,
2. SH. RAJESH PAUL,
BOTH SONS OF LATE SH. FANDHI RAM,
3. SMT. NIRUBALA D/O LATE SH. FANDI RAM
4. DELTED VIDE ORDER DATED 16.12.2016.
5. SH. MOHINDER SINGH SON OF LATE
SH. FANDHI RAM,
ALL RESIDENTS OF VILLAGE GHANAL-
KALAN, TAPPA BAJURI, TEHSIL AND
DISTRICT HAMIRPUR, H.P.
....APPELLANTS
(BY SH.ROMESH VERMA, ADVOCATE )
AND
1. SH. KASHMIR SINGH,
2. SH. KISHAN CHAND,
3. SH. SUKH DEV,
4. SH. RANGIL SINGH,
ALL SONS OF LATE SH. SALIG RAM,
ALL RESIDENTS OF VILLAGE GHANAL-KALAN,
TAPPA BAJURI, TEHSIL AND DISTRICT
HAMIRPUR, H.P.
....RESPONDENTS
(BY SH.K.D.SOOD, SENIOR ADVOCATE WITH
MR. HET RAM THAKUR, ADVOCATE)
Whether approved for reporting? Yes.
This Appeal coming on for orders this day, the Court passed the following:
::: Downloaded on - 31/01/2022 22:53:32 :::CIS
2
JUDGMENT
.
By way of instant appeal filed under Section 100 of CPC,
challenge has been laid to judgment and decree dated 28.5.2007,
passed by learned Additional District Judge (Fast Track Court)
Hamirpur, District Hamirpur, H.P., in Civil Appeal No.49 of 2000,
affirming the judgment and decree dated 5.2.2000, passed by
learned Sub Judge, 1st Class (I), Hamirpur, District Hamirpur, H.P., in
Civil Suit No.29 of 1995, titled as Rajinder Paul and others versus
Salig Ram, whereby suit for permanent prohibitory and mandatory
injunction as well as demarcation, having been filed by the appellants
(hereinafter referred to as the plaintiffs), came to be dismissed.
2. Precisely, the facts of the case as emerge from the record
are that plaintiff filed a suit against original defendant, Salig Ram for
permanent prohibitory injunction, averring therein that land
compromised in Khata No.75min, Khatauni No.89min, Khasra Nos.
1106/810, 1114/813, kita-2, measuring 2 kanals 15 marlas, as per
jamabandi for the year 1992-93, situate in Tika Ghanal Kalan, Tappa
Bajuri, Tehsil and District Hamirpur, Himachal Pradesh (hereinafter
referred to as the suit land), is owned and possessed by the plaintiffs
and some portion thereof was encroached upon by the defendant by
raising illegal and unauthorized construction of a house in the first
week of January, 1989 despite his being stranger to the suit land.
Plaintiffs further averred in the plaint that defendant undertook to
remove the illegal and unauthorized construction, but fact remains
.
that he again started illegal construction over the suit land in the first
week of January, 1993 and since despite repeated requests, he failed
to stop the work, plaintiffs had no option, but to file the suit.
3. Original defendant, Salig Ram, who is now being
represented by his legal representatives, as detailed in the memo of
parties, resisted the aforesaid claim of the plaintiffs on the ground
that at no point of time, he raised any construction over the suit land
nor he was interfering with the possession of the plaintiffs over the
suit land. Defendant submitted that land of the defendant comprised
of Khasra Nos.815 and 920 is adjoining to the suit land and the
boundaries between the suit land and his land were affixed a number
of times and he has raised construction of his house in the year
1982-83, in the year 1984-85 and also in the year 1986. Besides
above, defendant also claimed that the entire construction had been
raised by him over his own land and at no point of time plaintiff
raised objection, if any, and as such, suit having been filed by the
plaintiffs deserves outright rejection.
4. On the basis of the pleadings adduced on record by the
respective parties, learned court below famed framed following
issues:-
1. Whether the plaintiffs are entitled to the relief of
permanent prohibitory injunction as prayed? OPP.
2. Whether in the alternative, the defendant entitled to
the relief of mandatory injunction? OPP.
3. Whether the plaintiff has no cause of action and
locus- standi to file the suit? OPD.
.
4. Whether the defendant is entitled to special costs
under Section 35-A CPC? OPD.
5. Whether the plaintiffs are estopped by their own act
and conduct from filing the suit? OPD.
6. Relief.
5. Learned trial Court on the basis of the evidence adduced
on record by the respective parties, dismissed the suit of the
plaintiffs vide judgment and decree dated 5.2.2000.
6. Being aggrieved and dissatisfied with the dismissal of the
suit, plaintiffs filed Civil appeal under Section 96 CPC in the court of
learned Additional District Judge (Fast Track Court) Hamirpur, District
Hamirpur, Himachal Pradesh, however fact remains that same was
also dismissed vide judgment and decree dated 28.5.2007. In the
aforesaid background, plaintiffs have approached this Court in the
instant proceedings, praying therein to decree their suit after setting
aside the judgments and decrees passed by learned Courts below.
7. On 14.5.2008, this Court admitted the appeal at hand on
the following substantial questions of law:-
"1. Whether the learned lower Appellate Court was
required to allow the application under Order 26
Rule 9 CPC, once it has rejected the earlier
demarcation reports on record?.
2. Whether the application under Order 41 Rule 27
CPC was rejected wrongly by the learned
appellate Court?".
.
8. I have heard learned counsel representing the parties
and gone through the record carefully.
SUBSTANTIAL QUSTION OF LAW No.1
9. Perusal of the pleadings adduced on record by the
plaintiffs, reveal that the plaintiffs have claimed that defendants
have encroached upon some portion of Khasra No.813, but plaint
clearly reveals that no specific details with regard to land encroached
by the defendants ever came to be pleaded in the plaint. Similarly,
plaintiffs also failed to file any tatima to demonstrate the extent of
land allegedly encroached by the defendants. The entire case of the
plaintiffs qua the encroachment made by the defendants, is based
upon the demarcation report of Tehsildar conducted on 13.11.1994
i.e. prior to filing of the suit. Though, aforesaid report came to be
exhibited as DW2/C, but it is not in dispute that aforesaid report was
set-aside in the appeal by A.C.1st Grade vide order dated
16.11.2002, copy whereof stands exhibited as Ex.PC. Careful perusal
of aforesaid report clearly reveals that A.C.1st Grade has relied upon
that demarcation report Ex. R-1, which was carried out by the
Tehsildar on 6.6.2000 and was made a part of the order. Report
further reveals that during the pendency of the suit person namely,
Dila Ram, Tehsildar, came to be appointed as Local Commissioner,
who after having demarcated the land in question, submitted the
report Ex.DW2/C. Plaintiffs claimed before the Court below that
.
demarcation report Ex.DW2/C submitted by Local Commissioner
appointed by the Court below, clearly reveals that defendants have
encroached upon the suit land comprised of Khasra No.1114/813/1 to
the extent of 5 marlas and from Khasra No.1114/813/2 to the extent
of 01 Sarsahi and as such, suit having been filed by the plaintiffs
needs to be decreed.
10. Defendants while disputing aforesaid report claimed
before the Court below that since Local Commissioner appointed by
the court below failed to demarcate the land as per the instructions
issued by the Financial Commissioner, same cannot be taken into
consideration while determining the issue with regard to
encroachment, if any, done by the defendants on the land of the
plaintiffs. Local Commissioner, Sh. Dila Ram, with a view to prove his
report Ex.DW2/C, appeared as DW-2 and stated that before
conducting the demarcation, he fixed three points ABC, but he is not
aware on which Khasra number points ABC were fixed and as such,
has not mentioned the same in his report. He also stated that suit
land did not fall within the fixed points ABC. DW-2 also stated that he
did not measure the adjoining land of the defendants comprised in
Khasra No.815, nor he fixed any boundary of the adjoining Khasra
numbers. DW-2 deposed that southern boundaries of the suit land
have been not measured nor shown in the report. If the statement of
this witness is read in its entirety, it clearly reveals that he did not
.
demarcate the land as per the instructions issued by the Financial
Commissioner and as such, Court below refused to place reliance
upon the same. It also emerge from the statement of this witness
that he failed to measure adjoining land of the defendants and as
such, it is not understood that how it arrived a conclusion that
defendants have encroached upon the land of the plaintiffs to the
extent of 5 marlas in Khasra No.1114/813/1 and 01 Sarsahi in Khasra
No.1114/813/2. Once, this witness categorically admitted that suit
land was not demarcated in terms of the instructions issued by
Finance Commissioner, no fault, if any, can be found with the action
of the courts below while not accepting the report Ex.DW2/C.
11. It is not in dispute that on 6.6.2000, during the pendency
of the first appeal having been filed by the plaintiffs, another
Tehsildar conducted the demarcation of the spot, which came to be
placed on record as Ex.R-1. As per report (Ex.R-1), dated 6.6.2000,
lands of the parties were measured in their presence and no part of
the suit land was found under the possession of the defendants.
Interestingly, in this report Tehsildar reported that there is a road,
which is over the land owned and possessed by the plaintiff Rajinder
Paul and adjoining to the road his land is lying vacant. In this report,
house of the defendant Salig Ram was found to be constructed over
his own land. This report was admitted to be correct by both the
parties, as is evident from their statements recorded by the Tehsildar.
.
Interestingly, no mention, if any, of road ever came to be made in the
report of Tehsildar, Sh. Dila Ram (DW-2), who was appointed by the
trial Court in his report Ex.DW2/C and as such, learned Court below
rightly not accepted his report. Subsequently, demarcation report
Ex.R-1 was accepted by the parties to the lis as correct and SDO
(Civil) also accepted the same as correct, as is evident from order
dated 2.7.2021 and same was ordered to be made part of the order
of the SDO (Civil).
12. Record reveals that during the pendency of the appeal,
plaintiffs filed another application under Order 26 Rule 9 CPC, praying
therein for appointment of fresh Local Commissioner, but such prayer
of them was not accepted by the court below.
13. Mr. Romesh Verma, learned counsel representing the
appellants-plaintiffs while placing reliance upon the judgment
rendered by Hon'ble Apex Court in case titled Ram Lal & Sons versus
Salig Ram and others, 2019(2) Him.L.R.(SC) 852 (Civil Appeal
No.8285 of 2009), contended that when courts below had arrived at a
definite conclusion that Local Commissioner appointed by the trial
court did not conduct the demarcation as per the instructions, it
instead of dismissing the suit of the plaintiff, ought to have appointed
fresh Local Commissioner, so that he could conduct fresh
demarcation in terms of the instructions issued by the Financial
Commissioner. It would be profitable to take note of paras No. 15 to
.
17 of the aforesaid judgment herein:-
"15. It appears from the observations made by the High
Court in the present case that the Local Commissioner
omitted to scrupulously follow the applicable instructions
for carrying out such demarcation and particularly omitted
to fix three reference points on different sides of the land in
question. However, the report made by the Local
Commissioner was accepted by the Trial Court as also by
the First Appellate Court. The question is: If the Local
Commissioner's report was suffering from want of
compliance of the applicable instructions, what course was
to be adopted by the High Court?
16. An appropriate answer to the question aforesaid is not
far to seek. In the course of a civil suit, by way of incidental
proceedings, the Court could issue a Commission, inter alia,
for making local investigation, as per Section 75 of the
Code of Civil Procedure ("the Code" hereafter). The proce-
dure in relation to such Commission for local investigation
is specified in Rules 9 and 10 of Order XXVI of the Code.
Suffice it to notice for the present purpose that, as per
clause (3) of Rule 10 of Order XXVI, where the Court is dis-
ssatisfied with the proceedings of such a Local Commis-
sioner, it could direct such further inquiry to be made as
considered fit. This clause (3) of Rule 10 of Order XXVI of
the Code reads as under:-
"Where the Court is for any reason dissatisfied
with the proceedings of the Commissioner, it may
direct such further inquiry to be made as it shall
think fit."
17. The fact that the Local Commissioner's report, and for
that matter a properly drawn up report, is requisite in the
present case for the purpose of elucidating the matter in
dispute is not of any debate, for the order dated 24.01.1991
passed by the First Appellate Court having attained finality
whereby, additional issues were remitted for finding on the
basis of Local Commissioner's report. In the given set of
facts and circumstances, we are clearly of the view that if
the report of the Local Commissioner was suffering from an
irregularity i.e., want of following the applicable instruc-
tions, the proper course for the High Court was either to is-
sue a fresh commission or to remand the matter for recon-
.
sideration but the entire suit could not have been dismissed
for any irregularity on the part of Local Commissioner. To
put it differently, we are clearly of the view that if the Local
Commissioner's report was found wanting in compliance of
applicable instructions for the purpose of demarcation, it
was only a matter of irregularity and could have only re-
sulted in discarding of such a report and requiring a fresh
report but any such flaw, by itself, could have neither re-
sulted in nullifying the order requiring appointment of Local
Commissioner and for recording a finding after taking his
report nor in dismissal of the suit. Hence, we are unable to
approve the approach of High Court, where after rejecting
the Commissioner's report, the High Court straightway pro-
ceeded to dismiss the suit. The plaintiffs have been assert-
ing encroachment by the defendants on their land and have
also adduced oral and documentary evidence in that re-
gard. As noticed, the First Appellate Court had allowed the
appeal and decreed the suit filed by the plaintiff not only
with reference to the Commissioner's report but also with
reference to the other evidence of the parties. Unfortunate-
ly, the High Court appears to have overlooked the other
evidence on record".
14. There cannot be any quarrel with the aforesaid
proposition of law laid down by the Hon'ble Apex Court that if Local
Commissioner omits to scrupulously follow the applicable instructions
for carrying out demarcation and particularly omits to fix three
reference points on the different sides of the land in question, courts
should call for fresh demarcation report, but now the question arises
for consideration in the instant case is whether there was any
requirement, if any, for appointment of fresh Local Commissioner in
the light of the demarcation report dated 6.6.2000 Ex.R-1, conducted
during the pendency of the first appeal preferred by the plaintiffs. It
is not in dispute that demarcation report Ex.DW2/C furnished by Sh.
Dila Ram (DW-2) was not in accordance with law and as such, Court
.
ought to have called for fresh demarcation report, as has been held
by the Hon'ble Apex Court in the aforesaid case, but since after
dismissal of the suit by trial court, suit land again came to be
demarcated by another Tehsildar and he in his report dated 6.6.2000
Ex.R-1, categorically stated that no part of the suit land falls under
the possession of the defendants, there was no question for
accepting the fresh prayer made on behalf of the plaintiffs for
appointment of fresh Local Commissioner. DW-2, Dila Ram had
submitted the demarcation report Ex.DW2/C during the pendency of
the trial and was admittedly was not found to have been carried out
in accordance with law and as such, court below had two option
either to dismiss the suit of the plaintiff or to have appointed fresh
Local Commissioner, as has been held by Hon'ble Apex Court.
Learned trial court dismissed the suit on the ground that plaintiffs
have not been able to prove encroachment, if any, made by the
defendants over the suit land. However, fact remains that during the
pendency of the first appeal having been filed by the plaintiffs, fresh
demarcation came to be conducted on 6.6.2000, which subsequently,
came to be placed on record as Ex.R-1. Perusal of aforesaid report
clearly reveals that both the parties accepted the report to be correct
and in that report person responsible for carrying out demarcation
categorically reported that no part of the suit land falls under the
possession of the defendants. In the aforesaid report, it also came to
.
be reported that there is a road near the land owned and possessed
by plaintiff Rajinder Paul and adjoining to the road the land is laying
vacant. No house of defendant Salig Ram was found to be
constructed on the land of the plaintiffs.
15. Statements made by plaintiffs before the Tehsildar
concerned at the time of demarcation, dated 6.6.2000, clearly reveal
that they admitted the same to be correct. Aforesaid report Ex.R-1
was accepted as correct by S.D.O.(Civil), as is evident from order
dated 2.7.2001 and same was also ordered to be made part of the
order of the SDO(Civil). Since, fresh demarcation report, dated
6.6.2000 was already on record of First Appellate Court, there was no
occasion, if any, for First Appellate Court to accept the prayer made
on behalf of the plaintiffs for appointment of fresh Local
Commissioner and as such, he rightly dismissed the second
application having been filed by the plaintiffs under Order 26 Rule 9
CPC for appointment of fresh Local Commissioner.
16. Rule 9 of Order 26 CPC provides for the appointment of
Local Commissioner for the purpose of local investigation or for
elucidating any matter in dispute or for other allied purposes. The
object of the local investigation is not to collect the evidence which
can best be taken in the court, but to obtain evidence, which from its
very nature can only be gathered on the spot. Otherwise also, local
investigation by a Commissioner is merely to assist the court and as
.
such, report is not binding on the court, which can arrive at its own
conclusion on the basis of evidence on record even in a variance to
such a report. See. Jeet Ram alias Meet Ram vs. Sita Ram and others,
latest HLJ 2002(HP)1173 and Shri Gulaba vs. Shri Hari Ram, 1998 Sim.
L.C.85.
17. Mr. Romesh Verma, learned counsel representing the
appellants while placing reliance upon the judgment rendered by this
Court in Beli Ram versus Mela Ram and another, AIR 2003 Himachal
Pradesh 87, contended that Court can exercise power suo motu and
remand the case with the direction to appoint Local Commissioner. It
would be apt to take note of para-13 of the judgment herein below:-
"13. Rule 9 of Order 26 of the Code of Civil Procedure
(hereafter referred to as 'the Code'), empowers the Court
to issue commission to make local investigation which
may be required for the purpose of elucidating any matter
in dispute. Though the object of the local investigation is
not to collect evidence which can be taken in the Court,
but the purpose is to obtain such evidence, which from its
peculiar nature, can only be had on the spot with a view
to elucidate any point which is left doubtful on the
evidence produced before the Court. To issue a
commission under Rule 9 of Order 26 of the Code, it is not
necessary that either or both the parties must apply for
issue of commission. The Court can issue local
commission suo motu, if, in the facts and circumstances
of the case, it is deemed necessary that a local
investigation is required and is proper for the purpose of
elucidating any matter in dispute. Though exercise of
these powers is discretionary with the Court, but in case
the local investigation is requisite and proper in the facts
and circumstances of the case, it should be exercised so
that a final and just decision is rendered in the case".
18. There cannot be any dispute qua aforesaid proposition of
.
law that Court while exercising power under order 26 Rule 9 of the
Code of Civil Procedure of its own can order to appoint Local
Commissioner to ascertain boundary dispute, but it can be only done
if the court deems it necessary to appoint local investigation for the
purpose of elucidating any matter in dispute. Though, aforesaid
judgment has no application in the instant case, but since First
Appellate Court while discarding the demarcation report Ex.DW2/C,
submitted by DW-2 took into consideration subsequent demarcation
report Ex.R-1 conducted on 6.6.2000, which was admitted by both
the parties to be correct, there was otherwise no occasion for the
learned First Appellate Court to allow the second application under
Order 26 Rule 9 CPC for appointment of fresh Local Commissioner
and to remand the case for trial court for this purpose. Substantial
question of law No.1 is answered accordingly.
SUBSTANTIAL QUESTION OF LAW No.2
19. Record reveals that during the pendency of first appeal
plaintiffs filed an application under Order 41 Rule 27 CPC, seeking
therein permission of the Court to tender in evidence certified copy of
order dated 16.1.2002, passed by A.C.1st Grade/Tehsildar Hamirpur in
case No.37 of 1995, titled as Rajinder Paul versus Salig Ram and copy
of mutation No.394, dated 25.3.2002 as an additional evidence. In
the aforesaid application, plaintiffs claimed before the Court below
that they had filed civil suit for permanent prohibitory and
.
mandatory injunction as well as demarcation with regard to Khasra
Nos. 1106/ 810 and 1114/813, kita 2, measuring 2 kanals 15 marlas
before the Sub Judge, 1st Class (I), Hamirpur, H.P. on 31.1.1995.
During the pendency of aforesaid suit, Sh. Dila Ram, retired Tehsildar
(DW-2) was appointed as Local Commissioner vide order date
24.2.1998 i.e. Ex. DW2/A. As per the plaintiffs, Sh. Dila Ram (DW-2)
carried out the demarcation and found defendants to have
encroached upon the land of the plaintiffs, but same was not relied
upon by the learned lower court as the Local Commissioner did not
carry out demarcation as per the reference of lower court and suit of
the plaintiff was dismissed.
20. Plaintiffs also averred in the application that when the
demarcation was carried out by the Local Commissioner on 6.4.1998,
the southern sides of Khasra Nos. 1106/810 and 114/813 were taken
as 12 karams each because these were mentioned wrongly. Besides
above, plaintiffs averred in the application that at the time of
partition of Khasra Nos. 810 and 813, the southern sides of Khasra
Nos. 1106/810 and 1114/813 were mentioned wrongly as 12 karams
each and a correction application was made by the plaintiffs before
the A.C.1st Grade/Tehsildar, Hamirpur, H.P., on 22.9.1995 vide case
No.37/95, titled Rajinder Paul versus Salig Ram and same was
allowed on 16.1.2002. Revenue Officer ordered to correct the
southern sides of Khasra No.1106/810 from 12 karams to 15 karams
.
and Khasra No. 1114/813 from 12 karams to 13 karams, Khasra
No.1107/810 from 18 karams to 22 karams and Khasra No.1115/813
from 8 karams to 10 karams. Plaintiff claimed that there is boundary
dispute between the parties and as such, order dated 16.1.2002
passed by A.C.1st Grade and mutation No.394, dated 25.3.2002 are
very material for the just decision of the case.
21. This Court finds from the record that all the documents
intended to the placed on record by way of additional evidence were
very much in the knowledge/possession of the plaintiffs at the time of
filing of the suit, but yet they without there being any plausible
reasons failed to place the same on record. Very purpose and intent
of filing the application at hand is to bring on record certified copy of
order dated 16.1.2002, passed by A.C.1st Grade in case No.37 of
1995, titled as Rajinder Paul versus Salig Ram and copy of mutation
No.394, dated 25.3.2002, but no fruitful purpose would be served by
taking aforesaid documents on record for adjudication of the case at
hand. By way of aforesaid documents, plaintiffs intend to prove that
since certain correction came to be made at the time of partition of
Khasra No. 810 and 813 and southern sides of Khasra Nos.
1106/810 and 1114/813, fresh demarcation can be ordered with the
direction to Local Commissioner to take into consideration corrections
made by the revenue authorities, but once plaintiffs themselves
have accepted the latest demarcation report dated 6.6.2000 Ex. R-1
.
carried out by the Tehsildar during the pendency of the appeal, it is
not understood that how order dated 16.1.2002, passed by A.C.1st
Grade, Tehsildar Hamirpur, is of any help to the plaintiffs. It is not in
dispute that demarcation report dated 6.6.2000, Ex.R-1 was not only
accepted by the parties, but the same was also accepted as
corrected by the SDO (Civil) vide order dated 2.7.2001 and same has
also been ordered to form part of the order. Till the time, aforesaid
report is not set-aside by the competent authority, same could not be
ignored and as such, court below rightly took the same into
consideration while holding that the defendants have not encroached
upon the suit land. It clearly emerge from the evidence, be it ocular
of documentary, led on record that plaintiffs have miserably failed to
prove the factum with regard to encroachment made by the
defendants over the suit land.
22. 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 No.2 is answered accordingly.
23. 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)
24. 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.
.
25. 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 evidence, be it ocular or documentary on the record and, as
such, present appeal fails and same is accordingly dismissed.
26. Interim directions, if any, are vacated. All miscellaneous
applications are disposed of.
17th August, 2021 (Sandeep Sharma),
(shankar) Judges
