Kheta Ram vs Prayagchand

Pratap Krishna Lohra, J—This appeal under Section 100 CPC is filed by defendant Kheta Ram, who has lost concurrently in both the Courts below, impugning the judgment and decree dated 6th September 2012, passed by Addl. District Judge (Fast Track) No. 2, Hanumangarh Headquarter Nohar (learned lower appellate Court), affirming the judgment and decree dated 17th August 2004 passed by learned Civil Judge (Sr. Div.), Nohar (learned trial Court), whereby the suit filed by plaintiff Prayagchand seeking permanent injunction against defendant was decreed.

The facts, apposite for disposal of this appeal, are that respondent-plaintiff initially filed a suit on 09.01.1995 for permanent injunction against appellant-defendant before the learned trial Court for restraining the defendant from interfering with his possession and raising construction on his plot. Later on, an application for amendment of the suit was moved by the plaintiff and on permission being granted by learned trial Court, amended suit was filed, inter-alia, with the averments that on 22.08.1973 he had purchased a residential plot measuring 50'' x 40'', located near PWD Rest House, Nohar, from Gram Panchayat, Chak Sardarpura, with its dimensions 50 ft. in North and West directions and 40 ft. in East and West, for which Patta was issued in his favour on 26.08.1973, which shows roads in North and East of the plot, towards West plot of Hari Ram Sunar and in South plot of Mangilal Panda. It was averred that the plot of western side was sold by Hari Ram Sunar to one Duniram and southern side plot was sold by Mangilal Panda to one Sadir Khan Dhobi, who constructed houses on their plots as such there exist houses of Sadir Dhobi and Duniram Sunar respectively in western and southern sides of his plot. The plaintiff further averred that in connection with his business he was residing in Nepal in recent past and his brothers Satyanaraya and Nathmal were looking after his plot, who also got constructed boundary wall of two feet height in some portion of the plot. Plaintiff also averred that he came to Nohar about one month back and for his treatment went to Jaipur, and on his return from Jaipur, he alongwith his brother visited the site of plot on 06.01.1995 then they found bricks lying outside his plot. On inquiry, it was revealed that those bricks were of defendant Kheta Ram who had staked there for raising construction on the plot. On approaching the defendant, he showed his adamancy to raise construction as such the suit was filed, however, the defendant during the pendency of the suit taking undue advantage of holidays of Iduljuha and Sunday falling on 23rd and 24th of February 2002 encroached over the disputed plot and swiftly added four feet wall on the existing wall, thereby raising the height of the wall to six feet, and also placed an iron gate on the plot belonging to plaintiff. The defendant also got constructed a godown in the north-west of plaintiff''s plot and started keeping animals therein. The plaintiff in the amended suit prayed for mandatory injunction against defendant to dismantle the construction raised in the plot and remove its debris and thereafter hand over its possession to him and on defendant''s denying to do so for getting vacated the plot through Court and handing over its possession to him and restraining the defendant by permanent injunction from raising construction on the plot and refrain him from interfering with the plaintiff''s possession.

Contesting the amended suit, defendant filed written statement and denying the claim of plaintiff stated that neither the disputed plot is pattasud plot of plaintiff, nor was it in his possession and that he had not raised any construction thereon. It was case of the defendant that the plaintiff is having only an exponential patta and has no place where it can be fitted, rather the defendant claimed the disputed plot of his own pattasud plot and he having its possession. According to defendant, the boundary wall on the plot already existed and he had only got constructed the godown. It was asserted by defendant that on 05.07.1972 after depositing the cost of plot with Gram Panchayat, Chak Sardarpura he had taken its possession and since then it was in his use occupation and was being used for keeping animals and dumping waste. The defendant detailed out neighborhoods of the plot in the reply mentioning that in the northern side of plot there is house of Hanuman, in South a way and house of Gopiram, in East a public way, and towards West house of Duniram. According to defendant, the plaintiff never got possession of the said plot and the patta with the plaintiff relates to some other place but out of greed he has instituted the suit. At last, the defendant prayed for dismissal of the suit.

On these pleadings, the learned trial Court framed following issues:

On plaintiff''s side, plaintiff Prayagchand examined himself as PW1 and also got recorded statements of witnesses PW2 to PW4 viz., Mangilal, Satyanarayan and Rajendra Kumar. In documentary evidence Patta was produced by plaintiff, which was marked as Ex. 1. Defendant-appellant Kheta Ram examined himself as DW1 and examined other witnesses PW 2 to 4 viz., Hanumandan, Liyakatali and Surendrapal respectively and produced documents Ex. A/1 Patta, Ex. A/2 Site Map prepared by Site Inspector and Ex. 3 Site Plan.

The learned trial Court after examining the evidence tendered by rival parties and the documents available on record, decided crucial Issue No. 1 in favour of plaintiff and against the defendant holding that the disputed residential plot situated near PWD Guest House, Nohar, detailed in Para 1 of the plaint, belongs to plaintiff for which Patta was issued by the then Gram Panchayat Chak Sardarpura in favour of plaintiff on 26.08.1973 and possession was also handed over. Issue No. 2 was struck off as the encroachment was claimed during the pendency of the suit. Deciding Issue No. 2-A in favour of plaintiff, learned trial Court found it proved that defendant had raised the boundary wall of bricks to the height of 6 ft by adding construction on the already existing wall and fixed an iron gate so also constructed a godown in the northwest corner of the plot. Finally, the learned trial Court arrived at the conclusion that as the disputed plot is pattasud plot of plaintiff on which the defendant has raised construction encroaching over it, he is entitled to get removed the construction by issuance of mandatory injunction. Issue No. 3 was also decided in favour of plaintiff and the learned trial Court concluded that as the plaintiff was allotted plot measuring 50 ft from east to west and 40 ft from north to south by Gram Panchayat through Patta Ex. 1 on which defendant illegally encroached and raised construction as such plaintiff is entitled to get removed the construction and obtain possession. The learned trial court ultimately decreed the suit and issuing mandatory injunction against defendant order for removal of the illegal construction raised by defendant of four feet wall, iron gate and godown at his expenses and evicting the defendant to handover possession of the plot to the plaintiff. Further, permanent injunction was also issued against defendant not to interfere with the use and occupation of plaintiff on the pattasud plot.

Against the judgment and decree of the learned trial Court, appellant-defendant preferred first appeal before the learned Additional District Judge, Nohar, which was transferred, heard and decided by the learned Addl. District Judge (Fast Track) No. 2, Hanumangarh, Hq. Nohar, the learned lower appellate Court which re-examined the matter threadbare and scrutinized the entire evidence de novo. The learned lower appellate Court arrived at the conclusion that the learned trial Court has not committed any error of law in passing the judgment and decree impugned and declined to interfere with the judgment and decree of the learned trial Court by dismissing the appeal, which has led to the filing of present second appeal by appellant-defendant.

Mr. Moti Singh, learned counsel for the appellant contended that having regard to the fact that the plaintiff has utterly failed to prove and establish his own title on the land in dispute, the lower appellate Court ought not to have accepted his version and, no relief could have been given.

Mr. Suresh Shrimali, learned counsel for the respondent sought to repel the said contentions stating that there being no dispute on the title of the plaintiff, it is amply proved that the defendant encroached over the plaintiff''s land and raised illegal construction.

I have heard learned counsel for the parties, perused the judgments rendered by both the Courts below and scanned the entire record.

The dispute between the parties relates to the encroachment made by defendant on the pattasud plot of plaintiff. The case of the plaintiff was that the defendant by taking advantage of holidays encroached on his plot and raised the height of compound wall so also fixed an iron gate and constructed a godown in the plot. However, it was the case of the defendant that plaintiff has no patta for the disputed land whereas he is having patta and is in possession since 5th July 1972 and is also in use and occupation of the same, which is his own property purchased under Ex. A-1. It has come on record that the defendant and his witnesses have admitted that in the western side of disputed plot there was plot of Hari Ram Sunar, who sold it out to Duniram and thereafter Duniram sold the same to Ranjit Saharan but the defendant in his cross examination accepts that Duniram Pandit was in the western side of the plot allotted to him whereas his statement to that effect is contrary to Patta Ex. A/1 produced by him and the learned trial Court has found proved from the evidence of plaintiff that the boundaries of disputed plot are the same which are mentioned in Patta Ex. 1, on which plaintiff was in possession till filing of the suit and two feet wall of plaintiff existed whereas the defendant after filing of the suit has encroached over the said plot. The learned trial Court has also referred to the size of the plot of plaintiff being 50 ft in north and south and 40 ft in east and west as per Patta Ex. 1 issued by Gram Panchayat, Chak Sardarpura on 26.08.1973 and pointed towards there being any denial by defendant or his witnesses in evidence. It also revealed to the trial Court that the Patta Ex. A/1 produced by defendant was in the format printed for the nineties and by interpolating the last 9 of the 199 it was made 7 by overwriting and thereafter written 72 and thereby patta was shown to be issued on 7.2.1972. It is opined by the learned trial Court that the patta produced by defendant was not possible to be accepted for the reason that Patta shown to be issued in 1972 was in the format of Pattas issued in the decennium of 1990 and it was specifically pointed out that the overwriting in Patta Ex. A/1 was neither clarified by defendant not any evidence placed on record as to how for the patta issued in the year 1972 a resolution could be passed on 06.02.1992. On asking defendant Kheta Ram about the same, he showed his unawareness about Patta having been issued on 06.02.1992 and stated that towards west of the plot for which he obtained the patta, Duniram Pandit was residing whereas in Patta Ex. A/1 in the west a vacant plot is shown. The Court further highlighted that defendant states about depositing Rs. 100 as patta fee but simultaneously stated that no receipt was issued to him which creates doubt about Patta Ex. A/1. It was further denoted that the defendant claimed his possession on the disputed plot for last 30-35 years and issuing of Patta Ex. A/1 by Sarpanch Buddharam but from the facts on record it clearly revealed that said patta was not issued on 06.02.1972 but was issued on some date in the year 1992 as such the contention of defendant was wrong that he was in possession of the disputed plot for last about 30-35 years in view of the patta having been issued in the year 1992. To show matching of boundaries of the disputed plot with plaintiff''s patta Ex. 1, the learned trial Court has also hinted towards the admission of defendant DW1 Kheta Ram, DW2 Hanuman Dan, DW3 Liyakat in their evidence and ultimately came to the conclusion that the disputed plot is the same plot which was allotted to the plaintiff by Gram Panchayat Chak Sardarpura and patta Ex. 1 was issued on 26.08.1973 in his favour and possession was handover to him. In such circumstances, the respondent-plaintiff has established his title on the disputed plot and the learned trial Court going through the pleadings with reference to the entire realm of evidence and held that the appellant-defendant has miserably failed to prove his case. In appeal, the lower appellate Court on re-appreciation of the said evidence and material has found that it is the defendant who has made the encroachment on plaintiff''s plot and after a detailed scrutiny of oral and documentary evidence had corroborated this finding.

On perusal of impugned judgments, it is amply clear that matter has been thrashed out threadbare by both the Courts below and recorded a categorical finding against the appellant. Finding of fact recorded by both the Courts below is based on sound appreciation of evidence and the same cannot be categorized as infirm or perverse from any stretch of imagination. Furthermore, it is settled position of law that jurisdiction under Section 100 CPC is to be exercised with great care and circumspection and normally this Court is not obliged to re-appreciate the evidence available on record for arriving at a different conclusion.

On a close scrutiny of the impugned judgment, in my opinion, no substantial question of law is involved in this second appeal requiring adjudication in view of the settled law that it is not within the domain of the High Court to investigate the grounds, on which the findings were arrived at by the last Court of fact, i.e. the first appellate Court. If in the given set of circumstances two inferences of fact are possible, one subscribed by the first appellate Court is not to be interfered by the High Court in second appeal. Adopting any other approach in such a situation is not permissible. The High Court, however, can interfere where it is found that the conclusions drawn by the first appellate Court were erroneous on account of being contrary to the mandatory provisions of law or trite legal position settled by authoritative pronouncements of Hon''ble Apex Court, or based on inadmissible evidence, or arrived at by ignoring material evidence. No such situation is available in this appeal and the concurrent findings by both the Courts below are just and reasonable based on sound appreciation of evidence.

In totality, jurisdiction conferred on this Court under Section 100 CPC is to be exercised sparingly and second appeal is to be entertained only when there is a substantial question of law involved. After examining the matter thoroughly, I am unable to find any substantial question of law in this appeal and questions proposed are also not satisfying the requisite parameters discussed hereinabove. Therefore, it is not a fit case to exercise second appellate jurisdiction.

In view of above, I am not persuaded to interfere with the impugned judgment passed by learned lower appellate Court.

Consequently, appeal fails and same is, hereby, dismissed. No costs.