Raj Kumar vs Bhola Nath

Tarlok Singh Chauhan, J.—The appellant is the defendant, who is aggrieved by the judgment and decree dated 17.12.2013 passed by learned District Judge, Una, H.P. in Civil Appeal No. 56-XIII/2011 whereby he affirmed the judgment and decree dated 30.7.2011 passed by learned Civil Judge (Senior Division), Court No. 1, Una, District Una, H.P. in Civil Suit No. 26/2005 and dismissed the counter claim filed by the appellant/defendant.

The facts, in brief, are that the respondents/plaintiffs filed a suit for possession and mandatory injunction against the appellant/defendant and his father (who is proforma respondent in this appeal) in respect of the land measuring 18 marlas comprising Khewat No. 841 min, Khatauni No. 1092 min, Khasra No. 1357 as entered in jamabandi for the year 1997-98 situated in Mohal Bathu, Sub Tehsil, Haroli, District Una (hereinafter referred to as the suit land). It was averred by the plaintiffs that the land in suit is owned and possessed by the plaintiffs and towards east of this land there is land of the defendants in Khasra No. 1344 over which they have raised construction/renovation, katcha construction with pucca construction. It was also alleged that the defendants have encroached upon the land marked with letters ABCD being part of khasra No. 1357 by raising construction thereon about six years ago. The plaintiffs raised objection at the time of raising aforesaid construction but the defendants assured that the plaintiff would be compensated with the land of similar nature. It was further alleged that while renovating his abadi from katcha to pucca about one and half years ago, the defendants have kept ventilators and door shown by letter D towards the land of the plaintiffs measuring 1 kanal 19 marlas, comprising khasra No. 1345 for which he has no right to do so. The said act of the defendants is highly illegal and uncalled for. The possession of the defendants over the suit land is illegal and that of trespasser. The plaintiffs requested the defendants to hand over the vacant possession of the said land denoted by letters ABCD after closing the ventilators and door but the defendants apparently appear to be adamant to accede to the request of the plaintiffs and had finally refused, hence the suit and prayed that a decree for possession of the super structure of the site denoted by letters ABCD shown in red circumscription, be passed in favour of the plaintiffs and against the defendants and for mandatory injunction directing the defendants to close the ventilators and door as shown by letter ''D'' in the site plan, kept on the northern wall of the plaintiffs abadi touching the land of the plaintiff measuring 1 Kanal 19 marlas comprising khewat No. 841 min, Khatauni No. 1092 min, khasra No. 1345 as per jamabandi for the year 1997-98.

The defendants resisted the suit by filing separate written statements. In the written statement filed on behalf of the defendant No. 1/appellant, preliminary objections of estoppel, locus-standi, cause of action, limitation, suppression of material facts and mis-joinder and nonjoinder of parties were raised. On merits, it was admitted to the extent that the land measuring 18 marlas comprising khasra No. 1357 is owned and possessed by the plaintiffs and towards East the land of the defendants comprising Khasra No. 1344 is existing. It was claimed that the defendant raised alleged construction about 14 years ago that too after obtaining the demarcation of the suit land in the presence of the plaintiff. It was further claimed that the alleged ventilators and door being raised by the defendants, do not give any cause of action to the plaintiffs. The defendants have title on the land as shown towards Northern side of khasra No. 1344. The other averments made by the plaintiffs were denied by the defendants and prayed for dismissal of the suit.

The appellant/defendant No. 1 also filed counter claim against the plaintiffs with the averments that the plaintiffs under the garb of present suit have been raising illegal and unwarranted threats to obstruct and close the only passage leading to the main road as shown with letters ABCDEF and with yellow ink in the site plan annexed for which they have no any legal right, title and interest to say so. It was further claimed that if the land denoted by letters ABCD in the site plan is found to be part of Khasra No. 1357, then the possession of the defendants has ripened into ownership being adverse by afflux of time. The defendants requested the plaintiffs not to interfere in the existing usages of passage but the plaintiffs have refused to accede to the request of the defendants two days back from filing of the suit. The defendants had filed the counter claim and prayed that a decree for declaration be passed in favour of the defendants and against the plaintiffs to the effect that defendant No. 1 is the owner in possession of the land shown in the plaintiffs'' site plan as acquired by prescription with consequential relief of permanent injunction restraining the plaintiffs from interfering in any way for the user and utilization of the land as common passage shown with yellow colour denoted with letters ABCDEFA.

In the written statement filed by the defendant No. 2, it was claimed that the defendants have no concern with the land in suit. It was also denied that the defendants raised any construction over the suit land. The land in suit is also not in possession of defendant No. 2. The cause of action has also been denied. The defendant No. 2 prayed for dismissal of the suit.

The learned trial Court on 23.2.2008 and 10.12.2008 framed the following issues:

Whether the plaintiffs are entitled for possession by removal of super structure shown with letters ABCD in the site plan? OPP

Whether the plaintiffs are entitled for mandatory injunction? OPP

Whether the plaintiffs are estopped by their own acts and conducts? OPD

Whether the plaintiffs have no locus standi to file the present suit? OPD

Whether the plaintiffs have no enforceable cause of action to file the present suit? OPD

Whether the suit is bad for mis joinder and non joinder of parties? OPD

6-A. Whether the counter plaintiff-defendant No. 1 has become owner of the suit site denoted with letters ABCD by way of adverse possession as claimed by way of counter claim? OP Counter claimant-defendant No. 1.

6-B. Whether the counter plaintiff-defendant No. 1 is entitled for the relief of permanent prohibitory injunction as prayed for by way of counter claim? OP Counter plaintiff-defendant No. 1.

Relief.

After recording the evidence and evaluating the same, the learned trial Court partly decreed the suit of the plaintiffs, while the counter claim filed by the appellant was dismissed. A decree for possession by way of removal of the super structure of the site denoted by letters ABCD shown in red circumscription in the site plan Ex. PW-3/A located on the land measuring 18 marlas comprising khewat No. 841 min, Khatauni No. 1092 min, khasra No. 1357 per jamabandi for the year 1997-98 situated in Mohal Bathu, Sub Tehsil, Haroli, District, Una, H.P. is passed in favour of the plaintiffs and against the defendants. The defendant No. 1 is directed to hand over the vacant possession of the above portion as shown in the site plan Ex. PW-3/A to the plaintiffs within three months from the date of judgment.

Aggrieved by the judgment and decree passed by the learned trial Court, the appellant preferred an appeal before the learned lower Appellate Court, which met the same fate. It is against the judgments and decrees passed by the learned Courts below that the appellant has come in second appeal before this Court.

I have heard Mr. N.K. Thakur, Senior Advocate, assisted by Mr. Surinder, Advocate, learned counsel for the appellant and Mr. Amrinder Singh Rana, learned counsel for the respondents and have also gone through the records carefully.

Though the appellant would contend that the judgments and decrees passed by the learned Courts below were not only illegal, erroneous but also against the law and facts and infact they had erred in passing the impugned decrees on inadmissible evidence. The learned counsel for the appellant has not been in a position to further substantiate these arguments. The learned lower Appellate Court at the instance of appellant, had got appointed the Tehsildar as a Local Commissioner, who vide his report Ex. CW-1/A proved on record that the construction had been found raised over portions A B D and C over Khasra No. 1357 and such report was duly accepted by the learned lower Appellate Court.

No question of law much less substantial question of law arises for consideration and accordingly, the appeal is dismissed, so also the pending application, without costs.