Chhatar Singh And Others vs Padmakant And Another

Heard, on the question of admission.

The appellants/defendants have filed the present appeal being aggrieved by the judgement dated 24.09.2012, passed by the 1st ADJ, Mandleshwar, whereby the appeal filed by them has been dismissed and by the judgement and decree dated 15.04.2011, passed by the Civil Judge, Class-I, Kasrawad, West Nimar, decreeing the suit of the plaintiff has been affirmed.

Facts of the case, in short, are as under:

The plaintiff filed the civil suit for permanent injunction in respect of the land bearing Survey No.208/2 (area 0.08 acre), situated in Gram Gogawa, Tehsil Kasrawad (hereinafter referred as "suit land").

According to the plaintiff, the suit land is in his possession and he is using it for agriculture purpose called in local language as Khala . In the West side to the suit land, there is Govt. road which he is using to bring agriculture articles and bulk cart etc. to his private land.

On 23.11.2004, near about 7.00 P.M., the defendants have illegally encroached the land by erecting an iron angle and fancing. When the plaintiff's son objected, defendants abused and threatened to kill him, for which, a report was lodged in the police station Kasrawad in which a criminal case was registered against them. The plaintiffs served a legal notice by way of registered post on 11.03.2005 to the defendants ,which was replied by them and despite that they did not remove the encroachment , therefore, the plaintiff filed the suit for permanent injunction.

The defendant Nos.1 and 2 filed the written statement denying the averment made in the plaint. According to them, they are in possession over the land since last 50-60 years. The land belonging to the plaintiff was sold to his father by defendant no.1. The west side of the area is in possession of the defendants since last 50-60 years which they are using as Khaliyan . The plaintiffs have no right to use their land from the West side as he is having access to his land from south side of the land. The suit is not maintainable as the plaintiffs are having remedy to approach the revenue authority i.e. Tehsildar.

On the basis of pleadings, the trial Court framed four issues for adjudication.

The plaintiff examined himself as PW-1, Ramsingh as PW-2, Ramkishan as PW-3 and he got exhibited four documents as Ex.P/1 to P/4. In defense, the defendant examined Sher Singh as DW-1, Ramlal Verma as DW-2, Balram Verma as DW-3, Kamal Chand Tailors DW-4, Karan Singh as DW-5 and Chhatar Singh as DW-6 and got exhibited four documents as Ex.D/1 to D/4.

After appreciating the evidence came on record, vide judgment dated 29.01.2010, the learned Civil Judge has dismissed the suit as the plaintiff did not file the suit for legal and easementary right but filed only for the relief of permanent injunction, and the relief of permanent injunction cannot be granted for use of Govt. land and the plaintiff is having right of way from the south side of his land. The west side of the land which is a Government land is being used by the defendants as Khaliyan.

Being aggrieved by the aforesaid dismissal of the suit, the plaintiff preferred a First Appeal 12-A/2010. Vide judgment dated 27.01.2011, the learned first appellate Court has allowed the first appeal and set aside the judgment and decree and remanded the case to the trial Court with a liberty to the plaintiff to amend the suit to seek the relief of easementary right and further directed the trial court to frame the additional issues and also obtained the spot inspection report by appointing a commission.

After the remand, the plaintiff filed an application for amendment claiming a legal right to use the Govt. land to approach his land from each point.

The plaintiff also filed an application under Order 26 Rule 9 of the CPC for appointment of Commission. The learned trial Court has allowed the application and directed Naib Tehsildar to visit the suit land and submit a report. The Naib Tehsildar conducted the spot survey of the land Survey No.208/2 and submitted his report dated 28.08.2011. As per the report, the land Survey No.207 is a Govt. land recorded in the head of Charnoi and same has been encroached by Sher Singh and being used as Khaliyan and west side of this land is being used as public road.

The defendants submitted an objection to the said report. The trial Court permitted him to address at the time of final hearing of the suit. The learned trial Court vide judgment and decree dated 15.04.2011 has decreed the suit in favor of the plaintiff by declaring that he is having legal right of entry from each point in his land land from west as well as south side . The defendants have been directed to remove the Khaliyan over west side of Survey no.208.

Being aggrieved by the aforesaid judgment, the defendants preferred a first appeal. Vide judgment dated 24.09.2012, the first Additional District Judge has dismissed the appeal and upheld the judgment and decree. Hence, the present second appeal before this Court.

I have heard Shri Sameer Athawale, learned counsel appearing for the appellant and Ms. Swati Sharma, learned counsel appearing for the respondent and perused the record.

Shri Sameer Athawale, learned counsel for the appellant submits that earlier on the same set of evidence, the learned Civil Judge has dismissed the Civil Suit but after remand, the plaintiffs did not produce any additional evidence except filling an application under Order 26 Rule 9 of the CPC despite that suit has been decreed . The Commissioner submitted the report, but he did not enter into the witness box to prove the report. No opportunity of hearing was given to the defendants to cross-examine the Commissioner, hence, the said report is not admissible in evidence. The learned Civil Court has not decided the civil Suit according to the remand order passed by the first appellate Court. The defendants/appellants are in settled possession since last 50-60 years. Plaintiffs' suit for easementary right is not maintainable especially for the Govt. land. The plaintiff is having alternate right of way from the south side. Therefore, the suit for easementary right ought to have been dismissed by both the Courts below. Hence, the appeal is liable to be allowed.

Per contra, Ms. Swati Sharma, learned counsel appearing for the respondent/plaintiff submits that admittedly, the appellants/defendants are in possession over the Govt. land. They have no legal right to encroach over the Govt. land or public road. In absence of any legal right this appeal is liable to be dismissed. The Commissioner report was obtained only for the help of the trial Court to decide the suit. The same is not liable to be proved by Commissioner by entering into the witness box. The appellants have not claimed any right or title over the land which is in illegal possession of them. Hence, no substantial question of law involved in this appeal and the concurrent findings recorded by both the courts below, are not liable to be interfere in the Second Appeal filed under Section 100 of CPC. Hence, appeal be dismissed with cost.

It is not in dispute that the plaintiff is owner of the bearing Survey No.208/2 (area 0.08 acre) and west side of this land is government land which is recorded as charnoi and villagers are using it as road. It is settled law that every owner of the land is having right of entry in his land from each point. The appellants/defendants have defended the suit only on the ground that thae are in possession over the suit land since last 50-60 years but they never claimed any legal right over the land. Initially the plaintiff filed the suit for permanent injunction, but later on the first appellate Court vide judgement dated 15.04.2011 remanded the case with a liberty to claim the legal right by way of amendment. Accordingly, the plaintiffs amended the suit and claimed the legal right to use their land from the west side. The appellants did not challenge the remand order by way of appeal.

The learned Court allowed the application filed under Order 26 Rule 9 of the CPC and directed the revenue authority to submit a spot inspection report. As per the report submitted by the Commissioner the west side of the land Survey No.208/2 is a land Survey No.207 which is a government land and the defendant Sher Singh, S/o Naval Singh has encroached over 0.16 hectare of the land and using it as a Khalihan and on the west side of the encroached land there is a 10 feet public way which goes from north to south which is also on Survey No.207 and in the revenue record it is not mentioned as a road. It is clear from the aforesaid inspection report that the defendant no.1 Sher Singh has encroached the government land which is on the west side of the plaintiff's land. After the aforesaid report, the defendant Sher Singh filed an application under Order 26 Rule 10(2) of the CPC raising an objection and sought permission to make a submission at the time of final argument. Under Order 26 Rule 9 of the CPC the Court is having power to call the report by way of commission only for the elucidation of any point or evidence came on record. The report submitted by the Commission is only for clarification of any point. Normally the said report is not required to be proved as documentary evidence by calling the Commissioner in the witness box. If the report is in support of the case of the either party and there is enough evidence in his favour the Court can rely on the report . Even otherwise, by filing application under Order 26 Rule 10 of the CPC the defendant No.1 did not seek permission to cross-examine the Commissioner. He only sought a permission to object the said report and the permission has been granted by the Court. In absence of any legal right over the suit land encroached by the defendant, I do not find any ground to interfere in this appeal. The findings of fact have been recorded by the Court. There is no substantial question of law involved in this appeal. Hence, appeal is hereby dismissed.

No order as to cost.