Rishi Parkash vs Rameshwar (deceased through LRs.) & Ors

Appellant/plaintiff is in regular second appeal against the concurrent findings of fact whereby the suit for permanent injunction seeking restrained

order against defendant Nos. 1 to 4 from interfering in the use of the street shown with red colour in the site plan was dismissed by the trial Court and

affirmed by the appellate Court.

The plaintiff instituted a suit on the premises that he is owner in possession of residential house shown with letters 'ABCD' in the site plan and there

was a street in the east of the house, which connected the house from North and East to street and metal road. Gram Panchayat had paved the

streets by bricks. There is a place of worship in the street for the last several decades where the villagers pay worships. The street was the only

passage used by the plaintiff and his neighbours, but the defendants wanted to encroach upon the street. It is only due to the fact the suit was filed.

Defendant Nos. 1 to 4 contested the suit by taking preliminary objections with regard to the cause of action, maintainability, locus standi etc. On

merits, it was submitted that infact the plaintiff had encroached upon the part of plot No.51 of the defendant, which was upto 5 ½ feet. In this regard

the defendants had submitted application to the Tehsildar Sonepat for demarcation of the plot measuring 2 kanal 7 marlas and plot No.29/29 (0-9). A

retired Kanungo Ghann Sham Dass demarcated the plots and found that the plaintiff had encroached upon plot No.51. The trial Court on the basis of

the aforementioned pleadings framed the following issues :-

Whether the plaintiff is owner in possession of a residential house fully detailed in para No.1 of the plaint?OPP

If issue No.1 is proved, whether the plaintiff is entitled for a decree of permanent injunction as prayed for?OPP

Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD

Whether the suit of the plaintiff is not maintainable in the present form?OPD

Whether the plaintiff has concealed the material facts from the Hon'ble Court?OPD

Whether defendants No.1 to 4 are entitled for special costs under Section 34 A CPC? OPD

Relief.

The plaintiff in order to prove his case examined Anil as PW1, Parveen as PW2, Ran Singh as PW3 and himself as PW4 besides Abhay as PW5 and

placed on record documents Ex. P-1 to P-12. On the other hand defendants had examined Vinay as DW1. Ram Kumar as DW2 and documents Ex.

D-2 to D-5, Bal Kishan DW3 and Mukesh DW4 and

Ghanshayam Dass DW5 and placed on record Ex. DO. On the preponderance thereon the trial Court dismissed the suit on the ground that plaintiff

had encroached the property and the appeal before the lower appellate Court was also dismissed.

Along with the present appeal an application bearing No. 13673-C of 2013 under provisions of order 41 Rule 27 read with Section 151 of the Code of

Civil Procedure for placing on record Annexure A-1 to A-7 by way of additional evidence has been moved on the premise that the afore-mentioned

demarcation conducted during the pendency of the appeal in fact clinched the controversy in favour of plaintiff and the same could not be placed on

record as the report had come into existence during pendency of the appeal though was handed over to counsel but the same was not placed on

record in accordance with law before lower appellate Court.

Now this Court may take into consideration, the afore-mentioned document, for the adjudication of the lis.

Mr. Ranjit Saini, learned counsel appearing on behalf of the defendants/respondent Nos. 1 to 4 submitted that the suit had been dismissed on the

premise that plaintiff had not come to the Court with clean hands rather he was found to be a real encroacher It was submitted the plaintiff failed to

discharge the onus as per the provisions of 101 of the Indian Evidence Act. As regards the additional evidence, it was submitted that there had been

no compliance of expression “despite exercise of due diligence†and blame attributed to the counsel which is a common practice, which has come

on record and should not be encouraged but liable to be deprecated and urged for dismissal of appeal.

I have heard learned counsel for the parties and of the view that there is no force and merit in the submission of counsel for the appellant, reason is

not one but many. It is a fit case where Court below should have exercised the power in directing the authorities to remove the alleged encroachment,

on behalf of the plaintiff, in pursuance to the report of the Kanungo. Be that as it may, the plaintiff had not able to prove the encroachment or any

attempt made by the defendant in the street. The demarcation report is per se admissible as per Order 26 Rule 10(2) of the Code of Civil Procedure.

If at all there was grievance qua report, the plaintiff should have taken necessary steps as per provisions of law ibid and to ascertain certain facts in

his favour.

Plaintiff is none-else but an ex-sarpanch. It is a case of a settlement of some ego with the defendants and nothing beyond. For claiming injunction

party has to come to the Court with clean hands but not in the manner and mode as indicated above. The additional evidence sought to place on record

would tantamount to filling of the lacuna.

I do not find any illegality and perversity with the order passed by Additional District Judge and particularly the evidence sought to be placed on record

by preparing plot No.50 in Khasra No.50 which is not in dispute.

In view of the above, application for additional evidence as well as the appeal are dismissed.