Pushpa Panwar vs Gian Chand Tank

Tarlok Singh Chauhan, J.—The defendant is the appellant, who is aggrieved by the judgment and decree dated 8.5.2008 passed by the learned Additional District Judge, Sirmaur District at Nahan, H.P. in Civil Appeal No. 4-N/13 of 2001 whereby he affirmed the judgment and decree dated 4.5.2001 passed by learned Senior Sub Judge, Sirmaur District at Nahan, H.P. in Civil Suit No. 119/1 of 2000/98.

The plaintiff/respondent filed a suit seeking to restrain the defendant/appellant permanently from causing interference by raising construction in the land as detailed in para No. 1 of the plaint (hereinafter referred to as the suit land) and also seeking mandatory injunction for demolition and removal of construction raised by the defendant over Khasra No. 1355 by extending slab in the dimension of 1 1/2 feet wide and 11 1/2 feet long or in the alternative seeking a decree of possession on the basis of title of encroached area.

The case set-up by the plaintiff/respondent was that the suit land is owned and possessed by the plaintiff and the defendant has no right, title or interest in the same. The defendant/appellant without any right, title or interest has started raising construction over the suit land illegally with a view to encroach upon the suit land on 21.3.1998 for which she has collected building material on the spot. It is further averred that the defendant during the pendency of the suit after passing of stay order in April, 1998 forcibly raised construction by extending slab over portion of the suit land measuring 1 1/2 feet wide and 11 1/2 feet long which is shown in the site plan in red colour attached with the plaint, which encroachment was also found by the Local Commissioner on demarcation of the suit land. Accordingly, the construction raised over the suit land by the defendant unauthorisedly is liable to be checked and the plaintiff is entitled to a decree of mandatory injunction for demolition of such construction.

The defendant/appellant contested the suit by filing written statement admitting therein that the suit land is owned and possessed by the plaintiff and the defendant has no right, title or interest in the suit land. However, it is denied that the defendant has encroached upon the suit land by raising some construction, but stated that such allegations of the plaintiff are baseless and false. The defendant has purchased 126 sq. yard of land vide sale deed No. 98 dated 30.10.1970 as per specific identification and boundaries given in the said sale deed and in the year 1976 the defendant has raised construction of the ground floor alongwith ''Chhajja'' and further in the year 1983-84 the first storey was also constructed by the defendant alongwith door opened on the Chhaja over the property which was the part of old Khasra No. 17 which has been depicted as Khasra No. 1357 during current settlement. The defendant during November, 1981 also purchased another plot adjoining to the above land which is being used by her as kitchen garden and the vendor vide sale deed dated 10.10.1970 has also given 1 1/2 feet wide space along side the Eastern and Northern side of the plot and the ''Chhajja'' constructed by the defendant is also on her own property and there is a drain between the plot of defendant and plot of the plaintiff which drain has been constructed in the year 1976 which is surrounded by retaining walls on two sides. Since the retaining wall was just near the ''Chhajja'' so there was free ingress of the insects and other poisonous objects like snakes etc., therefore, in order to safe-guard the lives and property the defendant has constructed one brick wide parda wall in the month of January, 1998 within the knowledge and without any objection of the plaintiff and the defendant has also constructed small staircase about 2 feet wide during February, 1984 to connect the new plot with the roof of ground floor and ''Chhajja''. It is denied that on 21.3.1998 any construction work was started by the defendant in order to encroach over the land of the plaintiff. It is also denied that after passing of the stay order, the defendant has forcibly and unauthorizedly encroached upon portion of the land of the plaintiff by extending slab as alleged by the plaintiff, but stated that the ''Chhajja'' has been constructed by the defendant in the year 1976-77. The site plan and the report of the Local Commissioner are stated to be incorrect and it is averred that no Local Commissioner was appointed to the knowledge and with the consent of the defendant nor he has conducted any demarcation in the presence of the defendant. It is further averred that the predecessor of the plaintiff never raised any objection to the construction of the Chhajja and subsequently the plaintiff did not raise any objection on such construction at the time when he purchased the suit land after verifying the facts on the spot and after ascertaining the revenue record and on account of his own act, conduct, acquiescence and undue delay the plaintiff is not entitled to any relief of mandatory injunction even if it is found that such ''Chhajja'' has been constructed over a portion of the suit land.

The plaintiff/respondent filed the replication and the averments made in the plaint were reiterated and those of the written statement contrary to the plaint were refuted.

On 11.6.1998 and 17.9.1998, the learned trial Court framed the following issues:

Whether the plaintiff is entitled for relief of permanent prohibitory injunction as prayed for? OPP.

Whether there is no cause of action in favour of the plaintiff? OPD

Whether the suit of the plaintiff is vexatious as alleged? If so its effect? OPD

3-A. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP

3-B. Whether the entries in the revenue record are wrong, illegal and fraudulent as alleged? OPD

Relief.

The learned trial Court vide judgment dated 2.11.1999 partly decreed the suit of the plaintiff, which was challenged in appeal before the learned District Judge, Sirmaur District at Nahan, who vide judgment and decree dated 31.8.2000 re-framed the issues and remanded the case to the learned trial Court for decision afresh, which issues are as under:

Whether the defendant has encroached upon any portion of the land of the plaintiff as alleged, if so to what extent? OPP.

If issue No. 1 is proved, whether the plaintiff is estopped from filing the suit by his act and conduct and acquiescence as alleged? OPD

Whether the Karukans of the suit land of the plaintiff are not correct as alleged? OPD

Whether the suit of the plaintiff is false and vexatious to his knowledge and thus the defendant is entitled to the special costs as alleged, if so to what amount? OPD

Relief.

After recording the evidence and evaluating the same, the learned trial Court decreed the suit of the plaintiff on 4.5.2001. Aggrieved by the judgment and decree passed by the learned trial Court, the appellant/defendant preferred an appeal before the learned Additional District Judge, Sirmaur District at Nahan, who vide impugned judgment and decree dated 8.5.2008 dismissed the appeal.

Aggrieved by the judgments and decrees passed by the learned Courts below, the defendant/appellant has come up before this Court by way of second appeal.

On 18.8.2008 this Court admitted the appeal on following substantial questions of law:

"1. Whether the learned Courts below have rightly relied upon the report of District Revenue Officer, a Local Commissioner appointed by the Court dated 27.9.1999 for granting a decree of mandatory injunction and permanent injunction against the appellant.

In case the Courts below have rightly relied upon the report of Local Commissioner dated 27.9.1999 in that event whether the Courts below were right in partly relying upon the report of Local Commissioner and ignoring the rest of the conclusions given by the Local Commissioner in its report."

I have heard learned counsel for the parties and have also gone through the records carefully.

Since both the substantial questions of law are inter-related and inter-connected, therefore, I proceed to deal with the same through common reasoning.

At the outset, it may be observed that no objection to the report of the Local Commissioner was filed by the appellant when such report was submitted in the Court. Thus, in absence of any objection filed by the appellant to such report, the learned trial Court had no option but to accept the report of the Local Commissioner. On perusal of the demarcation report, it is established that the demarcation had been conducted in accordance with the Had Sikni Rules and as per the instructions issued by the Financial Commissioner. The learned counsel for the appellant could not even otherwise point out any illegality in the report insofar as the procedure adopted by the Local Commissioner for conducting the demarcation is concerned.

The learned counsel for the appellant has strenuously contended that the report of the Local Commissioner could not be accepted in part and had either to be accepted as a whole or rejected as a whole. In find no force in this submission of the learned counsel because the Local Commissioner has given specific findings regarding the encroachment over the suit land which reads as follows:

"(i) There is no encroachment on Khasra No. 1355 as is being claimed by Sh. Gian Chand Tank, plaintiff. However, at point ''D'' a negligible portion of stair of Smt. Pushpa Panwar measuring 20 to 30 centimeters in width and 18 decimeter in length is in the handing shape over Khasra No. 1355 of Sh. Gian Chand, plaintiff. As per rule of measurement denomination of less then half length of a unit may not have to be considered a full unit, but has to be considered as negligible.

Now in case the decree passed by the learned Courts below is seen, it is specific to the effect that the appellant has been directed to demolish the illegal encroachment raised by her over the land of the plaintiff/respondent comprised in Khasra No. 1355 measuring 20 to 30 centimeter in width and 18 decimeter in length in over handing shape in terms of the report of the Local Commissioner. Therefore, I wonder as to on what basis can the appellant claims that the learned Courts below have accepted only a part of the report of the Local Commissioner.

The learned counsel for the appellant would then contend that since the encroachment as alleged by the plaintiff/respondent has not been established and only negligible portion of the suit land was found to have been encroached by the appellant as per the report of the Local Commissioner, the learned Courts below could not have granted the relief of mandatory injunction. I am afraid that such plea is not available to the appellant since the Court can always award lesser relief than what has been claimed for. The relief of mandatory injunction has been sought by demolition of construction measuring 1 1/2 feet width and 11 1/2 feet length but then the learned Courts below have granted the relief as mentioned above which area is smaller than the one as prayed for by the plaintiff/respondent which was well within the judicial competence of the learned Courts below. Moreover, it is settled law that wrong doer has no equity in his favour. Above all, it is always to be borne in mind while administering justice equity plays an important part and court cannot loose site of equities and thus help wrong doer on mere technicalities. The substantial questions of law are answered accordingly.

Consequently, I find no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs.