Himachal Pradesh High Court

Biri Singh vs Kanshi Ram & Others on 16 September, 2023

Bench: Mamidanna Satya Rao

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

RSA No.73 of 2018 Reserved on: 11.08.2023

                                          Pronounced on:16.09.2023





      Biri Singh                                               ......Appellant
                                 Versus





      Kanshi Ram & Others                   ......Respondents

______________________________________________________ Coram:

Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.

Whether approved for reporting?

For the appellant : Mr. Devender K. Sharma, Advocate.

For the respondents : Mr. G.R. Palsra, Advocate. ______________________________________________________

M.S. Ramachandra Rao, Chief Justice.

This Regular Second Appeal is preferred challenging the

judgment and decree dt. 13.09.2017 in Civil Appeal no.25/2017

rendered by the Additional District Judge(II), Mandi, District

Mandi, H.P. confirming the judgment and decree dt. 25.05.2017 in

Civil Suit no.189/2008 of the Civil Judge (Senior Division), Court

no.1, Sarkaghat, Mandi, District Mandi, H.P.

2) The appellant in this appeal is the plaintiff in the suit.

3) The parties will be referred to as per their array in the suit.

4) The said suit was filed on 11.9.2008 by the plaintiff for

permanent prohibitory injunction restraining the defendants from

causing any kind of interference in the suit land in any manner

whatsoever and to direct the defendants to remove the heap of the

cow dung stored there on the part of the suit land and also for

directing the defendants to handover the vacant possession of the

suit land in its original position to the plaintiff.

Case of the plaintiff.

5) It is the contention of the plaintiff that he is a permanent resident

of Village Chandesh Eillaqua Bharota, Tehsil Sarkaghat, District

Mandi, and that he was residing permanently there after his

retirement from Government job in Education Department; during

his service tenure, he resided for some time at Village Bhambla

and constructed a house there; that in between his house and a

public highway popularly known as "Jahu-Mandi-Road", there is

a patch of land comprised in Khewat no.194, Khatauni no.226,

Khasra no.79, measuring 0-00-13 square meters (for short the "suit

land"), situated in Village Bhambla, which is in his possession in

the capacity as a tenant and the same was also recorded in the

revenue record, i.e. the Jamabandi for the year 2002-03.

6) The plaintiff alleged that the defendants took advantage of his

absence therefrom and with intention to grab the said patch of

land, started storing cow dung thereon and also removed fruit

bearing trees therefrom; that he requested the defendants to remove

the cow dung from the suit land and pay damages for the illegal

removal of the trees, and though the defendants had assured

removal of the cow dung, they did not do so and so he filed the

suit.

7) He alleged that his house is existing on the adjoining plot

comprised in Khasra no.85; and the suit land is in front of the said

house and abutting to the road side and is being enjoyed by him as

a courtyard/open space; that the owner of the suit land is one Daya

Ram to the extent of 150 share out of 376 shares and he is not

interfering into the peaceful possession of the plaintiff.

Stand of the defendants:

8) The defendants filed written statement opposing the grant of

relief to the plaintiff.

9) They contended that the land which the plaintiff is claiming to

be his was in fact in the peaceful and exclusive possession of

defendant no.2 by name Vinod Kumar s/o Kanshi Ram; and over

this land, i.e. on Khasra no.81/1, there is a house of the defendants,

which is evident from the copy of the Jamabandi for the year 1987-

88.

10) It is contended that there is no house of the plaintiff over the

land comprised in Khasra no.79 and the entry in the copy of the

Jamabandi filed by the plaintiff, showing him as non-occupancy

tenant, is wrong, incorrect and contrary to the factual position and

it has no binding effect on the defendants.

11) According to the defendants, the entry made in the copy of

Jamabandi for the year 1995-96 in remarks column in respect of

Rapat no.246 dt. 15.04.1993, referring to reference of File

no.101/93 dt. 12.04.1993 is fictitious, as in reality there was no

such file at all.

12) It is their contention that Khasra no.79 was a part of Khasra

no.81 and this is evident from the copy of Jamabandi for the year

1987-88.

13) They also filed copy of "Kayami Abadi", which is prepared

during the consolidation/settlement operation and according to

them, it demonstrates that there is a house of Rajesh Kumar and

Vinod Kumar, who are both the sons of Kanshi Ram. They

contended that Khasra no.79 claimed by the plaintiff is in fact in

the possession of the defendants and over it their house is standing.

They admitted that the plaintiff has a house in Khasra no.85.

14) Before the trial Court, the plaintiff examined PW-1 & PW-2

Ram and marked Ex.PW-1/A. The defendants examined DW-1 &

DW-2 Ram and marked Ex.DW-1/C & Ex.DW-1/A.

15) The trial Court framed the following issues:

"1.

2.

            for? OPP
                      r           to

Whether plaintiff is entitled for injunction, as prayed

Whether suit land is the part of Khasra No.81, as

alleged? OPD

3. Whether suit is not maintainable, as alleged? OPD

4. Whether plaintiff has suppressed the material facts from this Court, as alleged? OPD

5. Whether suit is bad for non-joinder of necessary parties,

as alleged? OPD

6. Relief."

Judgment of the trial Court:

16) After considering the oral and documentary evidence, the trial

Court dismissed the suit.

17) The trial Court held that the plaintiff failed to prove the cause of

action, and that the stand of the plaintiff is contradictory.

18) It held that though the plaintiff had written in the plaint that for

the first time on 15.05.2008, defendants started to throw the cow

dung on the suit land; in the Court, PW-1 stated that he was

transferred in 2005 and retired in 2007, and taking the benefit of

his absence between 2005-2007, the defendants interfered.

19) It further held that Ex.DW-1/C, i.e."Kayami Abadi", shows the

house of Rajesh Kumar & Vinod Kumar, who are the sons of

Kanshi Ram (defendant no.1); that it is also true that Khasra no.79,

which is the suit land measuring 13 square meters, was shown as a

house in tenancy of the plaintiff through Daya Ram as land owner,

but in the ownership column of Jamabandi Ex.PW-1/A, which is

the latest entry of Daya Ram, the names of Rajesh Kumar s/o

Kanshi Ram, Vinod Kumar s/o Kanshi Ram and one Tasvir is

there, which falsifies the case of the plaintiff to the effect that the

suit land is absolutely in possession of the plaintiff.

20) The trial Court further held that though the plaintiff stated that

the suit land is a vacant space, the Jamabandi states about the entry

of "Gair Mumkin Makaan" in a meager portion of 13 square

meters and it cannot be said that in such a meager portion there is a

house and also a vacant space.

21) It further observed that consolidation authorities were not

competent to change the entries in any manner whatsoever

regarding the constructed portion, as initially Khasra no.81 was not

assessed to land revenue.

22) It further held that the suit land was carved out from Khasra

no.81, which is clear from copy of Jamabandi Ex.DW-1/B coupled

with Ex.DW-1/A.

Judgment of the Appellate Court:

23) Challenging the same, the plaintiff preferred Civil Appeal

no.25/2017 to the Additional District Judge (II), Mandi .The

Appellate Court also dismissed the appeal.

24) The Appellate Court held that Ex.DW-1/C, which is a document

regarding "Kayami Abadi" shows it as "Bagicha Jaat", comprised

in Khasra no.81 by the consolidation Department and as per

Ex.DW-1/A, Khasra no.81/1, as per Jamabandi for the year 1995-

96 shows it as "Gair Mumkin House" and Khasra no.81/2 is also

"Gair Mumkin House".

25) It held that the plaintiff was shown in possession in Khasra

no.81/1 (old Khasra no.79) to the extent of 0-00-13 square meters,

which is a "Gair Mumkin House" and he was shown as per the

order dt. 12.04.1993 as the "Gair Marusi" over the suit land.

26) It held that Ex.DW-1/C shows that there is a house of Rajesh and

Vinod, who are the sons of 1st defendant Kanshi Ram, and as per

the Jamabandi Ex.DW-1/A, Khasra no.79, measuring 13 square

meters has been shown as the house in tenancy of the plaintiff

through their land owners.

27) It held that Ex.PW-1/A shows Daya Ram, Rajesh, Vinod and

Kanshi Ram and one Tehrir in the suit land and so it is not in the

plaintiff's possession because as per the plaintiff, the suit land is in

the shape of a courtyard.

28) It held that on a meager portion of 13 square meters, no house

can be constructed and it is presumed that there is an open space

which is a part of the house.

29) It also held that during the consolidation, the consolidation

authorities have no right to change the entries of "Abadi" on the

land and they have no right to make any entry of the constructed

area, in any manner, as Khasra no.81 was not assessed to land

revenue.

30) It also held that no tatima is placed on record to show how much

portion is under construction and whether Khasra no.79 is in

possession of the plaintiff.

31) It also held that there is no evidence produced by the plaintiff to

show that the defendants have thrown cow dung over the suit land.

32) Challenging the said judgment, this Second Appeal is filed.

33) The Second Appeal was admitted on 23.04.2018 to consider the

following substantial question of law:-

"(1) Whether the learned lower Appellate Court recorded the

findings without appreciating the pleadings and oral as well as documentary evidence correctly and thus the findings are perverse?"

34) This Court also directed the parties to maintain status quo qua

nature, possession and alienation of the suit land till the disposal of

the appeal.

35) Counsel for the appellant contended that the findings recorded

by both the Courts below are perverse and cannot be sustained.

36) He contended that in his chief-examination, the plaintiff as PW-

1 has specifically stated that there is a courtyard in front of his

house falling in Khasra no.85; there is a courtyard in front of the

plaintiff's house located in Khasra no.85; and that courtyard is in

Khasra no.79; and that in Khasra no.79 cow dung etc. is being

thrown by the defendants and there is no cross-examination by the

defendants of PW-1 of the said fact. According to him lack of

.

cross examination by defendant on this aspect to the plaintiff , is

sufficient to decree the suit. He contended that this aspect of the

matter has been lost sight of by the trial Court as well as the lower

Appellate Court.

37) He therefore contended that the finding of both the lower

Appellate Court as well as the trial Court that there is no evidence

of dumping of cow dung in the property, is perverse.

38) He further contended that Ex.PW-1/A filed by the plaintiff

shows that as on 12.04.1993, the plaintiff is shown as a non-

occupancy tenant of land in Khasra no.79 and this being a suit for

injunction to show prima facie possession, the said document is

adequate, and a deeper inquiry into title to the property by both the

trial Court as well as the Appellate Court, is not warranted.

According to him, there is a presumption of truth attached to

Ex.PW-1/A, Jamabandi for the year 2002-03, and the same could

not be ignored by the Courts below.

39) He also contended that the finding of the trial Court that there

were contradictions in the stand of the plaintiff, cannot be

countenanced.

40) The counsel for the respondents supported the orders passed by

the Courts below.

Consideration by the Court

41) As stated earlier, the suit was filed on 11.09.2008 in the trial

Court.

42) Among the exhibits filed by the parties, Ex.PW-1/A filed by the

plaintiff, which is Jamabandi of the year 2002-03, is most

proximate in point of time to the date of filing of the suit. Column-

5 thereof shows that in Khasra no.79, possession of the plaintiff is

recorded.

43) The documents filed by the defendants are for the period much

prior thereto.

44) There is no challenge to Ex.PW-1/A before any revenue

authorities by the defendants at any point of time.

45) Prima facie, this document proves the possession of the plaintiff

of the land comprised in Khasra no.79, which is shown to be of

extent 0-00-13 square meters.

46) Even in Ex.DW-1/A, in column no.5, the name of the plaintiff is

recorded as a person in possession of the above land for the year

1995-96.

47) In Balkrishna Dattatraya Galande vs. Balkrishna Rambharose

Gupta and Ors.1 it was held"

"11. The first Respondent-Plaintiff has filed the suit Under Section 38 of the Specific Relief Act seeking

permanent injunction on the ground that he is in actual possession of the suit property. Grant of permanent injunction results in restraining the Defendant's

legitimate right to use the property as his own property.

Under Section 38 of the Specific Relief Act, an injunction restraining the Defendant from disturbing possession

may not be granted in favour of the Plaintiff unless he proves that he was in actual possession of the suit property on the date of fling of the suit."

48) Once, prima facie, the possession of the plaintiff on the date of

filing of the suit is established by these two documents, and the

evidence of the plaintiff about dumping of cow dung by the

defendants is not subjected to any cross-examination by the

defendants, the case of plaintiff has to be accepted by both courts

and the suit ought to have been decreed by the Courts below.

AIR 2019 SC 953

49) In State of Uttar Pradesh vs. Nahar Singh (Dead) and Ors2 the

Supreme Court held that if evidence of a party on an aspect is not

subjected to cross examination, it ought to be accepted by the

Court. It declared:

"13. It may be noted here that that part of the statement

of PW 1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of

delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-

examining the witness tendered in evidence by the

opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:

(1) to test his veracity, (2) to discover who he is and what is his position in life,

or

(3) to shake his credit by injuring his character, although the answer to such questions might tend directly or

indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

(1998) 3 SCC 561

14. The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn3 clearly elucidates the principle underlying those provisions. It reads thus: "I cannot help saying, that it seems to me to be

absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not

speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that that imputation is intended to

be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have

been able to do if such questions had been put to him, the

circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is

a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity

of making any explanation which is open to him; and, as

it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair

play and fair dealing with witnesses."

This aspect was unfortunately missed by the High Court when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing."

(1893) 6 R 67

50) This was reiterated in Rajinder Pershad v. Darshana Devi4 as

under:

"4. The only point urged albeit strenuously on behalf of

.

the appellant by Mr P.S. Mishra, the learned Senior Counsel is that as there has been no valid service of

notice, so all proceedings taken on the assumption of service of notice are illegal and void. He has invited our attention to the judgment of the learned Rent Control

Tribunal wherein it is recorded that Exhibit AW 1/6 dated 5-8-1986 was sent by registered post and the same was taken by the postman to the address of the tenant on

6-8-1986, 8-8-1986, 19-8-1986 and 20-8-1986 but on

those days the tenant was not available; on 21-8-1986, he met the tenant who refused to receive the notice. This

finding remained undisturbed by both the Tribunals as well as the High Court. Learned counsel attacks this finding on the ground that the postman was on leave on

those days and submits that the records called for from

the post office to prove that fact, were reported as not available. On those facts, submits the learned counsel, it

follows that there was no refusal by the tenant and no service of notice. We are afraid we cannot accept these contentions of the learned counsel. In the Court of the Rent Controller, the postman was examined as AW 2. We have gone through his cross-examination. It was not suggested to him that he was not on duty during the

(2001) 7 SCC 69, at page 69

period in question and the endorsement "refused" on the envelope was incorrect. In the absence of cross- examination of the postman on this crucial aspect, his statement in the chief examination has been rightly relied

upon. There is an age-old rule that if you dispute the correctness of the statement of a witness you must give

him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit. ...."

51) Instead, perversely both Courts went into other aspects as to

whether the consolidation authorities have a right to change entries

of Abadi on the land, and whether they can make any entry of

constructed area, which are wholly irrelevant.

52) The finding of both the Courts below that there could not be any

house in the meager portion of 13 square meters in Khasra no.79,

also appears to be perverse since in Villages one does not built big

mansions. Houses are of smaller sizes and it cannot be presumed

that there could not be any house in the meager portion of 13

square meters.

53) It is also settled law that in a mere suit for temporary injunction,

question of title will not be decided. [See: Jose vs. Johnson, (2020)