Chandan Kumar vs Kali Dass and another

The instant appeal stands directed against the impugned judgement and decree of the learned District Judge, Hamirpur, H.P., whereby he affirmed the rendition of the learned Civil Judge, Sr. Division, Court No.1., Hamirpur, H.P. The plaintiff standing aggrieved by the concurrently recorded renditions of both the learned Courts below, hence through the instant appeal constituted before this Court, concerts to beget reversal of the judgements and decrees of both the Courts below.

The facts necessary for rendering a decision in the instant appeal are that the suit for permanent prohibitory injunction was filed by plaintiff against the defendants on jointly owned and possessed land by the plaintiff and defendants alongwith other co-sharers and not yet partitioned in due course of law. It is further alleged that defendants wrongly and illegally started digging the best portion of the suit land for the purpose of raising construction and also collected construction material on the spot. The plaintiff has requested the defendant not to raise construction but the defendants had not paid any heed, as such, the plaintiff filed the present suit.

The suit was contested by defendants by filing written statement. They have taken preliminary objections of maintainability, cause of action, non joinder and mis joinder of necessary parties. On merits, it is admitted that suit land is joint between the parties to the suit but it is averred that defendants are in exclusive possession of the suit land since 1978. It is submitted that suit land was partitioned in a family partition and all the co-sharers are in possession of their respective share. It is averred that the suit has been filed to cause harassment to them, as such, it be dismissed with heavy costs.

On the pleadings of the parties, the trial Court struck following issues inter-se the parties at contest:-

Whether the defendants are carrying out the construction over the suit land without the same being partition? OPP.

If issue No.1 is decided in affirmative and it is found that the defendants carried out the construction work over the suit land, whether the plaintiff is entitled for a decree of joint possession by way of demolition? OPP.

Whether the plaintiff is entitled for a decree of permanent prohibitory injunction, as prayed for? OPP.

Whether suit of the plaintiff is not maintainable in the present form? OPD.

Whether plaintiff has no cause of action and locus standi to file the present suit? OPD.

Whether the suit of the plaintiff is bad for non-joinder/mis-joinder of necessary parties?

Whether the plaintiff has concealed the material facts from the Court? OPD.

Whether the defendants are entitled for special costs under Section 35-A CPC?

Relief.

On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff besides the learned District Judge, affirmed the findings of the learned trial Court.

Now the plaintiff/appellant herein has instituted before this Court the instant Regular Second Appeal wherein he assail the findings recorded in its impugned judgment and decree, by the learned first Appellate Court.

The apposite averments cast in the plaintiffs'' suit, voice the factum of the (a) defendants raising construction upon un-divided suit property whereby the width of the village path stood narrowed (b) The construction raised by the defendants on undivided suit property being in excess of their share(s) therein. (c) The site whereat construction is endeavoured to be raised by the defendants'' comprising a valuable portion of the suit property.

The plaintiff for proving the aforesaid averments stepped into the witness box. However, during the course of his examination in chief, he has not thereon made any communication in respect of the construction raised by the defendants upon undivided suit property being in excess of their share(s) therein nor he voices therein of the site whereat construction is raised by the defendants'' comprising the best valuable portion of the suit property. However, he communicates in his examination in chief, that as a sequel to construction of pillars upon the suit property, the width of the path being narrowed. In the latter part of his cross-examination he has echoed that the real dispute arising inter se him vis-a-vis the defendants'' pertaining to a village path. The aforesaid voicing occurring in the statement of the plaintiff when construed with his omitting in his examination in chief to communicate that the site whereat construction is being raised by the defendants comprising a valuable portion of undivided suit property nor his voicing therein that it is beyond their share(s) therein, does unfold an inference that the apposite averments cast in the plaint remaining unproven besides lead to a further inference of the plaintiff contriving false averments in respect thereof, in the plaint

Be that as it may, even if assumingly, the plaintiff, has, in his examination in chief made a communication that in sequel thereof, the width of a village path being narrowed yet the aforesaid espousal was enjoined to be proven by best evidence. However, the Local Commissioner has not made any articulation in his report qua the width of the purported path being narrowed in sequel to the construction raised by the defendants''. Since the main dispute existing inter se the parties at contest is confined in respect thereof, whereas it remaining unproven, in sequel the suit of the plaintiff warrants its dismissal, as aptly done by both the Courts below. The report of the Local Commissioner also omits to make ample echoings in respect of the defendants in raising construction upon the suit land, theirs transgressing from their share(s) therein besides omits to bespeak that in the defendants raising construction, theirs raising it upon a valuable portion of the suit property thereupon also the apposite averments cast in the plaint remain unsubstantiated. In view of the above discussion, I find no merit in the appeal and it is dismissed in limine significantly also when no substantial question of law arises for determination. Impugned judgements and decrees rendered by both the courts below are maintained and affirmed. Decree sheet be prepared accordingly. No costs.