CMPMO/393/2012 on 28 December 2012

1. Sarwan Kumar ]

2. Parkash Chand] sons of Shri Ganu Ram.

3. Sandhya Devi wife of Shri Ganu Ram

4. Kashmir Singh son of Shri Lachhman Singh

5. Daler Singh son of Shri Sunder Singh Residents of Village and Post Office Chowki Kankari, Tappa Mehalta, Tehsil and District Hamirpur, H.P.

…Respondents.

6. Shiv Dei Wd/o late Shri Kishori Lal

7. Amit Kumar (minor) S/o Shri Narinder, through next friend and guardian Smt. Shiv Dei.

Residents of Village and Post Office Chowki Kankari, Tappa Mehalta, Tehsil and District Hamirpur, H.P.

…Proforma Respondents

Coram

The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No

For the Petitioner : Mr. Ramakant Sharma, Advocate.

For the Respondents :

Kuldip Singh , Judge ( Oral )

This petition under Article 227 of the Constitution of India has been filed against the judgment dated 27.6.2012 passed by learned Additional District Judge, Fast Track Court, Hamirpur in RBT No.

1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes

05/2012 in Civil Misc. Appeal No. 13 of 2012 affirming order dated 22.6.2011 passed in C.M.A. No. 352 of 2002 by learned Civil Judge (Junior Division), Court No.1, Hamirpur.

2. The facts, in brief, are that in Civil Suit No. 303 of 2002 in an application under Order 39 Rules 1 and 2 CPC, the Court on 23.10.2002 issued an exparte ad-interim injunction restraining the respondents from raising any construction over the suit land comprised in Khata No. 583 min, Khatauni No. 787 min, Khasra Nos. 1014, 1022, Kitas 2 total measuring 2 Kanals 1 Marla as per jamabandi 1997-98 Tika Chowki Kankari, Tehsil Hamirpur. The respondents No. 1 to 3 were served, they engaged respondents No. 4 and 5 and raised three sheds of bricks on the suit land. The respondents thus disobeyed the order dated 23.10.2002. The application under Order 39 Rule 2-A CIP was filed for proceeding against the respondents.

3. The respondents contested the application by filing reply. They denied raising of any construction on the suit land after service of ad-interim order. Ganu Ram predecessor-in-interest of respondents No. 1 to 3 had purchased the suit land. After the death of Ganu Ram, the respondents No. 1 to 3 came in possession over the suit land and they raised three rooms. At the time of construction by respondents No. 1 to 3 nobody objected.

4. The evidence was led oral and documentary from both sides. The learned Civil Judge (Junior Division) dismissed the application on 22.6.2011. The appeal filed by petitioner and proforma respondents 6 and 7 was dismissed by lower Appellate Court on 27.6.2012.

5. The learned counsel for the petitioner has stated that the two Courts below have not properly appreciated the evidence on record. The petitioners in the disobedience application have examined three AWs whereas the respondents No. 1 to 5 have examined RW-1. On both sides documentary evidence has also been produced. The learned Civil Judge has held that according to AW-1 and AW-2 the sheds were already existing on the spot before filing of the suit. On the photographs tendered by the petitioners, there is no date. RW-1 has denied having raised any construction over the suit land after passing of the injunction order. In the main suit, the application for interim injunction was dismissed. These findings have been affirmed by the Appellate Court.

6. In petition under Article 227 the evidence cannot be re- appreciated. The perversity in the order under challenge has not been established. In view of the statements of AW-1, AW-2 noticed by learned Civil Judge, it is not a case of no evidence. The petitioner has failed to make out a case of jurisdictional error. No case for issuing notice has been made out, hence dismissed.

December 28, 2012

( Kuldip Singh ), (GR)

Judge.