Dinesh Kumar Dixit vs Collector, Mandi, Disstt. Mandi, H.P., Executive Engineer, HPPWD. Division No. II, Mandi, H.P. and Shri Vinay Kumar Gupta, Contractor, Mandi, Distt. Mandi, Office at Construction Site at Padal, Near ITI, Mandi, H.P.

V.K.Ahuja, J.—This is a regular second appeal filed by the appellant/plaintiff u/s 100 C.P.C against the judgment and decree of the Court of learned District Judge, Mandi, dated 18.4.2006 wherein the findings of learned Civil Judge (Senior Division), Mandi, Distt. Mandi, H.P. dated 1.8.2005 dismissing the suit of the plaintiff were affirmed by the said judgment of the learned Appellate Court, the appellant/plaintiff has come up by way of this appeal. Briefly stated the facts of the case are that the appellant (hereinafter referred to as the plaintiff ) filed a suit for mandatory injunction as against the respondents(hereinafter referred to as defendants) on the allegations that the land comprised in khasra No. 291/1 measuring 47.80 sq. meters was in his possession since 1972 and he had constructed a khokha measuring 17.05 sq. meter and remaining land i.e 30.30 sq. meter was also built up by raising retaining wall. The plaintiff was running a business and was in peaceful possession of the land and in hostile possession which became adverse as against the true owner. It was further alleged that the respondent initiated proceedings u/s 163 of the H.P. Land Revenue Act in the year 1989 for eviction of the plaintiff and show cause notice was issued to the plaintiff and the said proceedings were still pending. Meanwhile the plaintiff also applied for regularization which application is still pending for consideration. It was further alleged that defendant No. 3 started digging foundation for the construction of the bridge in the month of December, 2002 for which blasting was done in a careless manner and the entire khokha of the plaintiff alongwith retaining wall gave way and plaintiff suffered a loss. It was alleged that the khokha was dismantled due to the negligent act of the defendant No. 3 and hence the suit for mandatory injunction filed by the plaintiff directing the respondents to restore the possession of the plaintiff. Defendants pleaded that the plaintiff had encroached upon the suit land for which proceedings were initiated. It was denied that he was in possession since 1972. It was alleged that the defendants have not demolished the khokha of the plaintiff and same might have been demolished due to heavy rain. It was also submitted that blasting was done by defendant No. 3 by taking due care and caution and no damage was caused to the khokha of the plaintiff.

On the pleadings of the parties, following issues were settled by the learned trial Court:

Whether the plaintiff was forcibly dis-possessed from the suit property by the defendants, as alleged ? OPP

If issue No. 1 is proved in affirmative, whether the plaintiff is entitled for the relief for mandatory injunction as prayed? OPD

Whether this court has no jurisdiction? OPD

Whether the suit is bad for want of notice u/s 80 C.P.C? OPD

Whether the plaintiff has no cause of action? OPD.

Relief.

Parties led their evidence and the learned trial Court vide its impugned judgment and decree dismissed the suit of the plaintiff.

On appeal, those findings were affirmed by the learned appellate Court.

I have heard the learned counsels for both the parties and have gone through the record of the case.

The appeal in question was admitted by this Court on the following substantial questions of law:-

1 Whether there is total misreading of the evidence of the parties by both the Ld. Courts below especially the documents Tatima Ex.PW4/A, Ex.PX, which has materially prejudiced the case of the appellant ?

Whether adverse inference can be drawn against the respondents by not examining the Contractor respondent No. 3 in support of their case?

On appraisal of the evidence led by the plaintiff, it is clear that the plaintiff had examined 5 witnesses to substantiate his case.

PW-1, Dinesh Kumar is plaintiff himself, who has stated that he constructed the khokha in the year 1972 and it was made pucca in the year 1988. He admitted that the file for illegal encroachment was started in 1989 and he received show cause notice and he also applied for regularization. PWD invited a new tender for the construction of the bridge and the work was started in December, 2002 and the blasting was done in between and there were cracks due to blasting and the khokha fell on 30th June, 2003. PW-2 is Kamlawati, Ahalmad and PW-3 is Soma Ram, who had only brought the record. PW-4 Surinder Kumar has stated that he had prepared the tatima and filed encroachment file which is Ex.PW4/A.PW-5, Subhash Chand, Patwari has stated that the plaintiff had applied for regularization. PW-6, Sher Singh has stated that the plaintiff was keeping the electrical goods in his khokha which fell due to the work started for constructing the bridge. He is not aware when the khokha was built. He was having his house at a distance of 6 k.m from the disputed land. He admitted that khokha had fallen at the spot but he has no personal knowledge about it.

To rebut this evidence, defendants examined DW-1 Kamal Kishor, Junior Engineer, who has stated that proceeding for eviction of the respondents was started and due to rain fall the khokha fell down. DW-2 Jitender Kumar, Work Inspector has also stated similarly that khokha had fallen due to rain fall. This is the all evidence led by the parties.

From the above discussion, this fact stands established that a khokha allegedly built by the plaintiff was in existence which was built on the Government land for which proceedings for eviction of the plaintiff were initiated by the respondents through the Revenue Officer. Those proceedings were still pending and meanwhile the khokha fell for which the suit for mandatory injunction was filed by the plaintiff that his possession be restored. The main question for determination is as to whether the plaintiff was entitled to the relief of mandatory injunction. Learned counsel for the appellant had relied upon the following decisions:

Reliance was placed upon the decision in Dalip Singh Vs. State of H.P., 1992 (1) SLC 320, wherein it was observed as under:

(b) Possession- Whether lawful or otherwise- ought not to be disturbed except by recourse to law.

It is a settled law that where a person is in settled possession of the property even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.

Reliance was also placed upon the decision in Canara Bank Vs. M/s Sai Box Factory and others, 2001 (1) S.L.J. 463, wherein it was observed as under:

If a defendant does not enter the witnessbox to make a statement on oath in support of the pleadings set out in the written statement, an adverse inference would arise that what he had stated in the written statement was not correct.

Reliance was also placed upon the decision in Rame Gowda Versus M. Varadappa Naidu, AIR 2004 SC 4609, wherein it was observed as under:

It was held that where the plaintiff was in settled possession, it entitles him to protect his possession-Grant of injunction in such circumstances is proper

There is no dispute in regard to the preposition that a person is in settled possession, is entitled to the relief of injunction including the relief of injunction against the true owner and he can not be evicted except by due process of law. However, the possession can only be protected if he is found to be in settled possession and he is in possession at the spot. The essential question for determination is though the plaintiff was held to be in possession for which eviction proceedings were started against him but that possession is not there at the spot which is sought to be protected by the plaintiff by claiming the relief of mandatory injunction. His version is that the khokha was demolished due to the negligence of the act of defendant No. 3 who was the contractor for the completion of the bridge, whereas the case of the defendant is that the khokha had fallen due to rain fall and not due to the act of the defendants. The plaintiff has not led any specific evidence to show that the khokha had fallen due to the act of the defendants by blasting, as alleged by him. He neither alleged nor proved the date when the work was started when the khokha fell and no other witness has stated in support of the allegations made by the plaintiff except the statement of the plaintiff himself. Defendants had examined two witnesses to prove that the khokha had fallen due to rain fall and not due to the blasting, as alleged by the plaintiff. Defendant No. 3 was only an agent of the defendants and therefore, it was not necessary that defendant No. 3 should have stepped into the witness box and failure to do so not will lead to adverse inference being drawn against the defendants. Once the plaintiff himself had failed to prove that the khokha had fallen due to blasting carried out by the defendants, there was no question of defendant No. 3 stepping into the witness box when the defendants had evidence to prove this fact as alleged by them and therefore, there was no inference can be drawn as against the defendants who had not examined defendant No. 3 once the plaintiff had failed to prove the facts as alleged by him.

From the above discussion of the evidence, it is clear that both the Courts below had properly discussed the evidence and had come to the right conclusion and there was no misreading of evidence to call for an interference by this Court. In view of above discussion, I accordingly hold that there is no merit in the appeal filed by the plaintiff which is dismissed accordingly. However, parties are left to bear their own costs.