Dharam Chand vs Suresh Kumar and Others

Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree dated 22.12.2012 rendered by the District Judge, Kangra at Dharamshala in Civil Appeal No. 20-B/XIII/2012. "Key facts" necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) filed a suit against the respondents-defendants (hereinafter referred to as the "defendants" for convenience sake) seeking relief of permanent injunction and also for restraining the defendants from changing the nature of the land comprised in Khata No. 185, Khatauni No. 318, Khasra Nos. 1239/245, 1243/245, 246, 247 kitas 5 measuring 00-19-30 hectares situated in Mohal Kotli, Mauja Bir, Tehsil Baijnath, District Kangra. According to the plaintiff, the best and valuable part of the suit land has been utilized by defendants No. 1 to 3 without getting the same partitioned. He has also prayed for mandatory injunction directing the defendants to restore the suit land.

According to the defendants they have raised construction upto the plinth level but the same was stopped since the plaintiff and his brother have blocked the path, which was existing for the last 40 years. According to them, no fresh construction was raised.

The replication was filed by the plaintiff. The issues were framed by the learned Civil Judge (Junior Division) on 30.9.2010. He dismissed the suit on 1.3.2012. The plaintiff preferred an appeal against the judgment and decree dated 1.3.2012 before the learned District Judge, Kangra. He dismissed the same on 22.12.2012. Hence, the present Regular Second Appeal.

Mr. Anshul Attri learned vice counsel for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below have misread and misinterpreted the oral as well as documentary evidence led by the parties.

Mr. Imran Khan has supported the judgments and decrees passed by both the courts below.

I have heard the learned counsel for the parties and have perused the pleadings carefully.

PW-1 Jeet Kumar is the special power of attorney of the plaintiff. According to him, in the month of June, 2010, the defendants started stacking construction material on the suit land. The defendants again started construction work in the month of July, 2010. In his cross-examination, he has admitted that they are having separate land adjoining to the suit land belonging to him and his father.

DW-1 Bindu Devi has stated that in the month of June, 2009 the plaintiff was sold share of the suit land by defendant No. 1. The possession was also delivered to him. According to jamabandi Ex. P-1, the suit land was shown to be recorded in possession of various co-sharers alongwith plaintiff and defendants. In the remarks column of mutation, it has been mentioned that the share of the suit land was sold by defendant Suresh in favour of plaintiff Dharam Chand. According to the statement of DW-1 Bindu Devi, the construction was raised in the month of April and May, 2010. According to her, there was no other construction shown in photographs except Ex. PD. Thus, when the present suit was instituted, the construction was raised upto the plinth level. The plaintiff has not led any tangible evidence to establish that the defendants started raising construction in the month of June/July, 2010. The statement of DW-1 Bindu Devi was corroborated by DW-2 Badai Ram. It was denied by DW-1 Bindu Devi that the portion of the suit land where they had raised construction is the best and valuable portion. The plaintiff has not examined any other co-sharers to establish that if the construction is completed by the defendants, the same would result in effecting the rights of other co-sharers as well. The plaintiff has neither pleaded nor proved that share/portion of the suit land whereupon the plinth has been raised was included in the sale deed executed in his favour. The plaintiff had not raised any objection at the time when the construction was commenced by the defendants. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the judgments and decrees passed by the courts below. Accordingly, in view of the observations and analysis made hereinabove, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.