Himachal Pradesh High Court
Om Dutt vs Mandeep on 17 September, 2021
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17th DAY OF SEPTEMBER 2021
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
.
REGULAR SECOND APPEAL No. 70 of 2009
Between:-
OM DUTT
S/O SHRI NARATA RAM,
R/O VILLAGE TRILOKPUR,
TEHSIL NAHAN,
DISTRICT SIRMAUR, H.P.
......APPELLANT
(BY KARAN SINGH KANWAR, ADVOCATE)
AND
MANDEEP
S/O SHRI TARA CHAND,
R/O VILLAGE TRILOKPUR,
TEHSIL NAHAN,
DISTRICT SIRMAUR, H.P.
.......RESPONDENT
(BY SH. AJEET SINGH SAKLANI,
ADVOCATE VICE SH. RAJESH
VERMA, ADVOCATE)
This appeal coming on for hearing this day, the Court
passed the following:
JUDGMENT
Suit filed by the appellant for permanent
prohibitory injunction has been concurrently dismissed by
the two learned Courts below. Aggrieved, plaintiff has
preferred the instant regular second appeal.
The status of parties hereinafter is referred to as
it was before the learned Trial Court.
2(i). Suit for permanent prohibitory injunction was
filed by the plaintiff (appellant herein). Plaintiff claimed
.
himself to be a co-owner in possession of the land
comprised in Khata/Khatauni No.136/316, Khasra No.367,
measuring 1-7 Bighas, situated at Mauza Trilokpur, Tehsil
Nahan, District Sirmour. Jamabandi for the year 1998-99
in support of the averment was appended. The plaintiff
asserted that the defendant was stranger to the suit land,
yet he was interfering in it. The cause of action was stated
to have accrued to the plaintiff on 26.03.2006 and
28.03.2006, when the defendant statedly forcibly entered
the suit land and started digging over a portion of the same
for the purpose of raising wall of his house.
2(ii). The defence taken was that the defendant from
the times of his ancestors was residing over part of Khasra
No.375, which was 'Abadi Deh'. An old house existed over
Khasra No.375. Defendant carried out renovations by
putting lintel upon the old construction in the year 1995-
96. An upper storey of this house was constructed by him
in the year 2000. The defendant also pleaded that his
residential house was at a distance of about 50 meters from
the suit land and that there existed a 4 feet wide kacha
passage in between the house of the plaintiff and the house
of the defendant. Defendant denied interfering in the suit
land.
.
2(iii). The parties led evidence in support of their
respective pleadings. After appreciating the pleadings,
evidence and contentions of the parties, the learned Trial
Court vide judgment and decree dated 29.02.2008,
dismissed the suit. The first appeal preferred by the plaintiff
was also dismissed by the learned Additional District
Judge, Sirmaur at Nahan, on 04.11.2008. Aggrieved,
instant appeal was preferred by the plaintiff.
3. This second appeal was admitted on 02.03.2009
on following substantial questions of law:-
"1. Whether the learned Courts below have rightly
exercised the jurisdiction in not appointing
the local commissioner as the dispute pertains
to boundary and as admitted by the defendant
himself.
2. Whether the learned Courts below have
misconstrued, misinterpreted document Ext.
PW-3/2 demarcation report and Ext. PW-1/C
site plan which has been duly proved on
record and has not been rebutted by the
defendant."
4. I have heard learned counsel for the plaintiff
(appellant) and perused the record.
Both the learned Courts below have returned
findings on facts that the plaintiff has not been able to
.
prove interference over the suit land by the defendant.
4(i). The plaintiff in support of his case appeared in
the witness box as PW-1 and reiterated his submissions
made in the plaint. He also stated that he and his brother
were exclusive owners in possession of the suit land.
Plaintiff did not examine any inhabitant of the locality,
wherein the suit land was situated to support his allegation
of interference by the defendant in the suit land. PW-2
Mohan Lal was a resident of a different village. PW-2
feigned his ignorance about description, identity of suit
land etc. The witness did not have much clue about the
dispute between the parties.
4(ii). The oral evidence of the plaintiff in the case was
not sufficient to prove alleged interference of defendant in
the suit land. One of the co-owners of the suit land, Sh.
Duni Chand, also stepped in the witness box as DW-1. He
denied raising of any construction by the defendant over
the suit land. In fact, this witness, who is the co-owner over
the suit land alongwith the plaintiff, has supported the
version of the defendant. He denied interference by the
defendant over the suit land in any manner on 26.03.2006
and 28.03.2006. He also stated that the lintel over the
house was put by the defendant in his (defendant's) land
.
during the year 1995-96 and upper storey of the house was
completed by the defendant in the year 2000.
4(iii). The defendant examined himself as DW-2. He
produced the rough sketch, i.e. site plan, Ext. DW-2/A. He
denied interfering in the suit land and stated that old house
raised by his ancestors was there in Khasra No.375. He
renovated it in the year 1995-96 and raised the upper
storey over the same in the year 2000. He also stated that
door of his house opens towards 4 feet wide common path,
which was in existence from the times of his ancestors. He
stated that there was distance of about 50 meters between
plaintiff's and his house.
5. The substantial questions of law, on which this
appeal was admitted, may now be answered.
Question of Law No.1:-
There was no necessity of appointing the Local
Commissioner. It was not a case of boundary dispute
between the parties. The plaintiff had filed the suit for
permanent prohibitory injunction alleging interference over
the suit land by the defendant. Plaintiff was required to
prove his allegations by leading cogent evidence, which he
failed to do. It is not even otherwise the case of the plaintiff
that he moved for appointment of the Local Commissioner
.
either before the learned Trial Court or before the learned
First Appellate Court. It is not a case where the learned
Courts below required the assistance of the report of the
Local Commissioner to adjudicate the lis.
Question of law is answered accordingly.
Question of Law No.2:-
There was no mention in the demarcation
report, Ext. PW-3/B, that the defendant had interfered in
the suit land. The demarcation report only indicated the
boundaries of the suit land. Therefore, the demarcation
conducted by the Field Kanungo did not prove plaintiff's
allegation of interference in the suit land by the defendant.
Both the learned Courts below have correctly interpreted
the demarcation report. There is nothing to infer from the
site plan, Ext. PW-1/C, that the defendant was causing
interference over any part of the suit land. The plaintiff
failed to prove interference over the suit land by the
defendant.
Question of law is answered accordingly.
In view of the evidence, which had come on
record, there was no escape from the conclusion that the
plaintiff has only alleged interference in the suit land by the
defendant, but no proof of such interference was put forth
.
by him. The co-owner of the suit land, Sh. Duni Chand, had
also not supported the plaintiff. The co-owner had
completely contradicted plaintiff's claim. Therefore, the
impugned judgments and decrees passed by the learned
Courts below, dismissing the suit filed by the plaintiff, do
not call for any interference. The judgments are based on
proper appreciation of pleadings, facts and evidence. The
findings returned by the learned Courts below are all
factual. No question of law, much less a substantial
question of law, arises for adjudication in the instant
appeal.
Impugned concurrent judgments and decrees
passed by learned Courts below do not call for any
interference. Instant second appeal lacks merit and is
accordingly dismissed, so also the pending miscellaneous
application(s), if any.
Jyotsna Rewal Dua
September 17, 2021 Judge
Mukesh
