Dhayan Singh (Deceased) Through Lrs vs Lachhmi Devi & Anr

@JUDGEMENT- JUDGEMENT

Jyotsna Rewal Dua, J

Both the learned Courts below have dismissed the civil suit instituted by the appellant, seeking permanent prohibitory injunction against the respondents, hence he (now substituted by his legal heirs) has preferred the present Regular Second Appeal under Section 100 of Code of Civil Procedure.

This appeal was admitted on 25.10.2016 on the following substantial questions of law :-

Whether there being boundary dispute between the parties, therefore, application for appointment of Local Commissioner should have been appointed as held by this Hon’ble Court as well as by the Hon’ble Apex Court, repeatedly.

Whether the fixing of boundaries is required to be done by civil court as per requirement of High Court Rules and Orders.

I have heard learned Senior Counsel on both sides on the above questions of law vis-à-vis facts, pleadings & evidence in the case and with their assistance have also considered the entire record.

Consideration

4(i) The appellant (hereinafter referred to as the plaintiff) instituted a suit for permanent prohibitory injunction through his son and General Power of Attorney (GPA in short) Kamlesh Kumar to restrain the respondents (hereinafter referred to as the defendants) from interfering over the land comprised in Khata No.2, Khatauni No.2, Khasra No. 443 measuring 16 Marlas, situated in Tika Tikkari Ghuralan, Tappa Mewa, Tehsil Bhoranj, District Hamirpur, H.P. The plaintiff’s case was that he was owner in possession over the suit land. The defendants were strangers to the suit land, but had started uprooting its boundary. They had collected construction material for forcibly raising construction and were bent upon encroaching the suit land. A specific averment was made in the plaint that the plaintiff had not filed any other suit qua the suit land inter se the parties.

4(ii) In their written statement, the defendants admitted the plaintiff to be the owner in possession of the suit land, but denied there being any cause of action for him to institute the suit. Their defence was that they were neither digging the suit land nor collecting any material or raising any construction over it. The defendants pleaded that the plaintiff had instituted the suit just to harass them. That previously also, Sh. Mohinder Singh, predecessor-in-interest of the plaintiff had instituted Civil Suit No. 7 of 2003 against the defendants qua the same land for similar relief. The suit was dismissed by the learned Trial Court on 11.08.2005. The plaintiff, thereafter, instituted a similar Civil Suit bearing No.7 of 2005 against the defendants. This suit was also dismissed on 08.08.2007. Appeal against this judgment and decree was dismissed by the learned First Appellate Court on 19.06.2009. In the previous civil suits, demarcation of the suit land was carried out by the Field Kanungo. No encroachment of the defendants was found on the suit land. The defendants, inter-alia, also raised an objection that the plaintiff was estopped by his own acts and conduct from filing the instant suit as the suit land had been demarcated twice in his presence by the Revenue Agency. Not only Sh. Mohinder Singh, the predecessor-in-interest of the plaintiff, but the plaintiff had himself accepted these demarcation reports in the previous cases, but these material facts were concealed by him in the present suit. It was further asserted by the defendants that the plaintiff even otherwise was not entitled to the discretionary relief of injunction.

4(iii) Significantly, the plaintiff did not refute the statements made in the written statement. No replication was filed by him.

4(iv) After considering the case record, the learned Trial Court as well as learned First Appellate Court dismissed the suit.

4(v)(a) The plaintiff did not examine himself. On behalf of the plaintiff, his son and GPA Kamlesh Kumar stepped into the witness-box as PW-1. Though the civil suit was instituted through this witness as plaintiff’s GPA, however, it is a fact that the said GPA was not proved on record. It has also to be considered that this witness was deposing for the plaintiff as his GPA. He was supposed to answer all material questions regarding the previous litigations put to him by the defendants. Record has established that this witness had appeared as GPA of the plaintiff in the previous litigation as well (Civil Suit No. 7 of 2005), but a reading of his statement in the instant case makes it evident that he had been evasive in his answers to the questions put to him regarding the previous litigations. Even with respect to the documents, which are matter of record, he had either denied or evaded the questions. In such circumstances, his statement about interference by the defendants over the plaintiff’s land cannot be given credence.

The fact that the Civil Suit No. 7 of 2003 by plaintiff’s predecessor Sh. Mohinder Singh & Civil Suit No.7 of 2005 by plaintiff himself, were instituted against the defendants qua the same suit land and for the same relief, has been established on record. Sh. Kamlesh Kumar (PW-1) had appeared as witness in Civil Suit No.7 of 2005 as GPA of the plaintiff. In view of this, the statement of PW-1, denying or feigning ignorance about the institution of Civil Suit No.7 of 2005 by his father (present plaintiff) against the defendants, is nothing but a blatant lie. It can, thus, safely be concluded that the plaintiff had not come to the Court with clean hands, so much so that he even pleaded having not filed previously any suit qua the suit land against the defendants.

4(v)(b) It is also apparent from the record that in the previously instituted civil suits, demarcation of land was carried out. These demarcation reports have been brought on record of the instant case by the defendants to show that no encroachment by them was found over the suit land. Plaintiff opted to remain blissfully silent about this material aspect as well.

4(v)(c) Besides, no evidence has been adduced by the plaintiff in the instant case to prove alleged interference of the defendants over the suit land. It has come in the evidence that the defendants are owners in possession of the land adjoining to the suit land. On their behalf, a question was put to PW-1, Sh. Kamlesh Kumar the GPA of the plaintiff, that a naturally grown and distinct hedge goes along and divides the two parcels of the land owned by the parties. This hedge has been referred to in the demarcation report as well as in the judgment passed by the learned First Appellate Court in the previous suit (Civil Suit No.7 of 2005). PW-1 avoided to answer the question. But naturally, this leads to an inference that PW-1 was not even aware about the spot position and his endeavour was to mislead the Court.

4(v)(d) Substantial questions of law No. 1 and 2.

The substantial questions of law are with respect to plaintiff’s prayer for appointment of Local Commissioner for fixing boundaries between the suit land and the land owned by the defendants. The questions are to be weighed and considered against the above described factual scenario of the case.

An application was moved by the plaintiff before the learned Trial Court on 22.02.2014, seeking appointment of Local Commissioner to demarcate the suit land. The reasons given in the application for making such prayer was that ‘it had come in the evidence adduced by the parties that the defendants had encroached upon the portion of the suit land, therefore, to ascertain the nature and extent of encroachment, appointment of Local Commissioner was necessary’.

In their reply filed to the application, the defendants submitted that they had already taken demarcation of their owned land adjoining to the suit land from the Field Kanungo. This demarcation report was accepted by the AC-II Grade, Bhoranj on 13.06.2003 (Ex.D-7). The plaintiff as well as the previous owner of the suit land were parties to the aforesaid demarcation. The plaintiff as well as his predecessor-in-interest namely Sh. Mohinder Singh had accepted the demarcation before the AC-

II Grade. The defendants further submitted that the plaintiff had also got the suit land demarcated on 29.11.2003 (Ex.D-8). This demarcation was accepted by the defendants. Both the demarcation reports i.e. qua the defendants’ owned land as well as the plaintiff’s owned land have become final. The suit land cannot be demarcated again and again. Both these demarcation reports were placed on the file of the civil suit.

Taking into consideration these facts and also noticing that the application for demarcation of the suit land not just being irrelevant in the given factual scenario, but also having been moved after the closure of the evidence, learned Trial Court has dismissed the same on 24.07.2014. The order was accepted by the plaintiff at that stage. He did not agitate it even before the learned First Appellate Court.

The plaintiff having accepted the order dated 24.07.2014 passed by the learned Trial Court, dismissing his application, seeking appointment of Local Commissioner, cannot be permitted to raise this issue again in the instant second appeal. CMP No.3060 of 2017, filed by the plaintiff in this second appeal for appointment of Local Commissioner is otherwise also misconceived. As already noticed, in the previously civil suits instituted either by the plaintiff or by his predecessor-in-interest qua the same suit land & for the same relief, demarcation reports placed, have not established any encroachment on the suit land by the defendants. There is no evidence worth the name for proving alleged interference by the defendants over the suit land. There has to be some foundation even for apprehension. That basis is lacking in the case. Clearly the plaintiff had not come clean to the Court. The Court cannot hunt for evidence to support plaintiff’s case. No case is made out in the given facts for considering much less allowing the prayer made by the plaintiff seeking appointment of Local Commissioner at the stage of second appeal.

In view of above discussion, both the learned Courts justifiably dismissed the civil suit instituted by the appellant. No interference is called for in the findings of facts, concurrently returned by both the learned Courts below. There is no merit in this Regular Second Appeal. The same is dismissed. For the foregoing reasons, CMP No.3060 of 2017, seeking appointment of Local Commissioner is also dismissed.

The pending miscellaneous application(s), if any, also stand disposed of.