State Of H.P. Through vs State Of H.P. And Others As
2022 Latest Caselaw 8339 HP

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 10th DAY OF OCTOBER, 2022




                                                             .
                                 BEFORE





            HON'BLE MR. JUSTICE AJAY MOHAN GOEL
                   REGULAR SECOND APPEAL No. 52 of 2022





     BETWEEN:-
1.   STATE OF H.P. THROUGH
     DISTRICT       COLLECTOR,





     HAMIRPUR,         DISTRICT
     HAMIRPUR, H.P.
2.   EXECUTIVE ENGINEER, HP
     PWD,   DIVISION BARSAR,

     TEHSIL BARSAR, DISTRICT

     HAMIRPUR, H.P.
3.   ASSISTANT ENGINEER, STATE
     ROADS    PROJECT,    CMU,
     HAMIRPUR,        DISTRICT


     HAMIRPUR, H.P.
                                                  ...APPELLANTS
     (M/S SUMESH RAJ & SANJEEV SOOD,




     ADDITIONAL ADVOCATE GENERALS,
     WITH MR. AMIT KUMAR DHUMAL,





     DEPUTY ADVOCATE GENERAL)
     AND





     KARTAR CHAND, AGED 51
     YEARS, SON OF SH. MAHANT
     RAM, RESIDENT OF VILLAGE
     KAROHTA, TAPPA MEHALTA,
     TEHSIL BHORANJ, DISTRICT
     HAMIRPUR, H.P.
                                                 ...RESPONDENT

     (BY M/S TARUN K. SHARMA AND BISHAV
     SHARMA, ADVOCATES)
     Whether approved for reporting? Yes.
__________________________________________________________




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              This Regular Second Appeal is coming on for hearing this day, the Court
passed the following:-




                                                                        .
                            JUDGMENT

By way this Regular Second Appeal, the appellants have

assailed the judgment and decree dated 27.02.2016, passed by the Court

of learned Civil Judge (Junior Division), Court No. II, Hamirpur, H.P. in Civil

Suit No. 30 of 2012, titled as Kartar Chand Vs. State of H.P. and others as

well as judgment and decree dated 25.05.2019, passed by the Court of

learned District Judge, Hamirpur, H.P. in Civil Appeal No. 38 of 2016, titled

as State of H.P. and others Vs. Kartar Chand, respectively, in terms

whereof, the suit for permanent prohibitory injunction as well as mandatory

injunction filed by the respondent/plaintiff was decreed to the extent of grant

of permanent prohibitory injunction and the appeal preferred against the

same by the State was dismissed by the learned First Appellate Court.

2. I have heard learned Additional Advocate General as also

learned counsel for the respondent. I have also gone through the judgments

and decrees passed by both the learned Courts below.

3. Respondent/plaintiff (hereinafter referred to as 'the plaintiff')

filed a suit for permanent prohibitory injunction restraining the defendants

from changing the nature or carving out any road or demolishing any

building etc. over the suit land comprised in Khata No. 66 min, Khatauni No.

66 min, Khasra No. 335/11, measuring 0-08 Marlas, as per Jamabandi for

the year 2006-07, situated in Tika Karoh, Tappa Mehalta, Tehsil Bhoranj,

District Hamirpur, H.P. and also for mandatory injunction, inter alia, on the

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ground that the plaintiff was owner in possession of the suit property

alongwith other co-owners and though the adjoining land to the suit land

was acquired for the purpose of construction of a road and compensation

of land as well as structure was duly paid to the owners, but the suit land

was not acquired for the said purpose and defendants being strangers qua

the suit land, having no right, title or interest over the same, be restrained

from demolishing the building of the plaintiff and other co-owners, situated

over the suit land in the course of up-gradation/improvement of Una-Ner-

Chowk road till due compensation thereof was paid to the plaintiff and other

co-owners.

4. The suit was resisted by the defendants, inter alia, on the

ground that the defendants were neither trying to demolish the building of

the plaintiff or otherwise without paying any compensation and the facts

were that work of construction of Una-Ner-Chowk road was awarded to C

& C Company and the defendants were to hand over hindrance free

vacated site to the Company for completion of work and for this purpose,

the building of the plaintiff was required to be demolished, as the same was

falling within the corridor of impact and the same was thus required to be

removed in order to improve road geometrics and curves of the road. It was

further the case of the defendants that plaintiff had already been paid

Rs.8,40,900/- and Rs.28,700/- in lieu of complete existing structure/building

as per World Bank guidelines and in this view of the matter, the defendants

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were not strangers to the land and it was rather the plaintiff, who had

encroached upon part of the suit land approximately 1.5 meters belonging

to HP PWD, for seeking eviction whereof of the plaintiff, proceedings were

initiated before the SDM concerned.

5. On the basis of pleadings of the parties, learned Trial Court

framed the following issues:-

"1. to Whether the plaintiff is entitled for decree of

permanent prohibitory injunction, as prayed for? OPP.

2. Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for? OPP.

3. Whether the suit of the plaintiff is not maintainable

in the present form, as alleged? OPD.

4. Whether the plaintiff has got no cause of action to

file the present suit, as alleged? OPD.

5. Whether the plaintiff is estopped from filing the

present suit by his own act and conduct, as alleged? OPD.

6. Whether the suit of the plaintiff is not well within time, as alleged? OPD.

7. Relief.

6. On the basis of the evidence which was led by the parties in

support of their respective pleadings and contentions, the same were

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decided as under:-

            "Issue No. 1:         Yes.
            Issue No. 2:          No.





            Issue No. 3:          No.
            Issue No. 4:          No.
            Issue No. 5:          No.





            Issue No. 6:          No.
             Relief:              The suit of the plaintiff is partly decreed as
                                  per operative part of the judgment."

7. Learned Trial Court decreed the suit of the plaintiff partly qua

grant of permanent prohibitory injunction, whereas suit for grant of

mandatory injunction was dismissed. In appeal, learned Appellate Court

upheld the judgment and decree passed by the learned Trial Court.

8. Feeling aggrieved, the appellants have preferred this Regular

Second Appeal.

9. A perusal of the judgment and decrees passed by both the

learned Courts below demonstrates that concurrent findings have been

recorded to the effect that the suit land comprised in Khasra No. 335/11

was not acquired by the defendants for the purpose of up-

gradation/improvement of Una-Ner-Chowk road. Learned Trial Court had

returned definite findings that Ex. DW5/B and other documents on record

demonstrated that the road was situated over Khasra No. 334/11 and

defendants had not brought any evidence on record to prove that the same

was to be constructed over land comprised in Khasra No. 335/11, which

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belonged to the plaintiff and that the same for this purpose stood acquired

by the defendants. These findings have been upheld by the learned

Appellate Court also.

10. During the course of his submissions, learned Additional

Advocate General could not bring to the notice of this Court any exhibit, in

terms whereof, the suit land stood acquired and/or compensation in lieu

thereof stood paid to the plaintiff after acquisition of the same. To be fair

to the learned Additional Advocate, he has submitted that the defendants

had placed on record Ex. DW2/A to Ex. DW2/F to prove that payments were

made with regard to a double storeyed building, but a perusal of the

judgment passed by the learned First Appellate Court demonstrates that

this point has been considered by the learned First Appellate Court at length

in Para No. 18 onwards of the judgment while coming to the conclusion that

reliance cannot be placed upon the said report to conclude that the house

of the plaintiff is situated over Khasra No. 335/11. To the contrary, both the

learned Courts below have concurrently held that Jamabandi Ex. DW1/B

demonstrates that plaintiff and other persons are co-owners in possession

of the suit land and the entry in the copy of Jamabandi carries with it a

presumption of truth and no evidence was led to rebut this presumption and

this demonstrates that the version of the plaintiff that he is co-owner in

possession of the suit land has to be accepted as correct. Both the learned

Courts below also held that as it was an admitted fact that defendants had

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issued a notice for demolition of the structure of the plaintiff and as there

was a serious dispute between the parties regarding the fact whether the

structure was in the suit land or in the Government land, therefore, the

plaintiff had a reasonable apprehension of interference over the suit land

and was entitled to protect his possession. This Court is of the considered

view that these findings which have been returned by the learned Courts

below, besides being findings of fact, are clearly borne out from the record

and are not perverse findings, in view of the fact that the defendants failed

to prove on record that the suit land was in fact acquired for the purpose of

up-gradation/improvement of Una-Ner-Chowk road. Therefore, this Court

finds no perversity with the judgments and decrees, passed by the learned

Courts below and further, as this Court finds no substantial questions of law

involved in the present appeal, the same being devoid of any merit is

dismissed, so also pending miscellaneous applications, if any. No order as

to costs.

(Ajay Mohan Goel) Judge October 10, 2022 (bhupender)