RSA/275/1999 of DHARAMI DEVI Vs SUKH DEV on 31 December 2008

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 275 of 1999 Reserved on: 30.12.2008 Date of decision: 31.12.2008

Smt. Dharami Devi & Ors.

... Appellants

Versus

Sukhdev

… Respondent

Coram :

The Hon’ble Mr. Justice V.K. Ahuja, Judge.

Whether approved for reporting?[1] No.

For the appellants:

Mr. N.K. Thakur, Advocate.

For the respondent: Mr. Ajay Sharma, Advocate.

V.K. Ahuja, J.:

This is a Regular Second Appeal filed by the appellants under Section 100 C.P.C. against the judgment and decree dated 8.4.1999 of the Court of learned Additional District Judge(1), Kangra at Dharamshala, vide which the judgment and decree of the Court of learned Sub Judge Ist Class, Court No II, Una, dated 30.5.1994 was affirmed.

Briefly stated, the facts of the case are that the respondent as plaintiff filed a suit for possession and permanent injunction as against the original defendants Channu Ram and Sotoo Ram, now represented by the present appellants. The plaintiff filed a suit for possession and permanent injunction. It was alleged by the plaintiff that the suit site ‘ABCD’ is part of the land measuring 3 Kanals 1Whether reporters of Local Papers may be allowed to see the judgment? Yes.

1 Marla, comprised in Khasra No. 188 owned and possessed by the plaintiff and other co-sharers. It was alleged that taking advantage of the absence of the plaintiff, the defendants have encroached upon the suit site ‘ABCD’ by raising ‘Phoose Posh’ Katcha superstructure and with this construction, door of the eastern wall of the plaintiff’s house has been blocked. The plaintiff also alleged that the defendants have started blocking the site ‘CEFG’ in Khasra No. 190 belonging to the State Government, which is the only approach to the house of the plaintiff from main Una-Nangal PWD road. Thus, it was alleged that the plaintiff is entitled to the possession of the land over which construction has been raised by the defendants and he also prayed for the grant of permanent injunction restraining the defendants from obstructing the only passage/approach to his house. The defendants pleaded that their residential house has been constructed on their own land and not on the site ‘ABCD’. It was pleaded that this construction was raised more than 12 years ago and even if it is found to be on the suit site, the defendants have become owners by way of adverse possession.

On the pleadings of the parties, the learned trial Court framed issues mainly in regard to the question as to whether site ‘ABCD’ was part of the land owned by the plaintiff and others. An issue was also framed as to whether the defendants have become owners by way of adverse possession and whether the plaintiff is entitled to the relief of injunction. Parties led evidence and the learned trial Court decided all these issues in favour of the plaintiff and as against the defendants and consequently, decreed the suit of the plaintiff, which findings were affirmed by the learned first Appellate Court on appeal.

I have heard the learned counsel for the parties and have gone through the record of the case.

A perusal of the record of the case shows that the appeal was admitted by this Court on four substantial questions of law formulated alongwith the appeal. The main questions No. 1 to 3 pertained as to the report of the Local Commissioner, whether it was a conclusive proof of the fact that the site formed part of the suit land or not. The last question was in regard to the findings as to whether they stand vitiated for mis-construction and misinterpretation of the oral as well as documentary evidence. During the course of arguments, the learned counsel for the appellants had submitted in general only that the report of the Local Commissioner was not conclusive proof of the fact that the site was part of the land owned by the plaintiff, though it was not substantiated as to how the report of the Local Commissioner cannot be looked into to decide this question. The findings in general were challenged being not based upon the correct appreciation of evidence oral as well as documentary.

Coming to the first point, a perusal of the record of the case shows that a Local Commissioner was appointed by the Court and his report dated 6.8.1989 was also confirmed that the suit site ‘ABCD’ was part of the land comprised in Khasra No. 188. This fact is not disputed that this Khasra No. 188 was owned by the plaintiff and other co-sharers as per the copy of the jamabandi Ext. P-1 on record. A perusal of the record shows that a Revenue Officer was appointed as Local Commissioner by the Court with consent of the parties, who submitted his report, on which a preliminary issue was also framed by the Court and finally the said report was confirmed. The Revenue Officer can only determine the question as to whether the site formed part of the suit land or not and the said report which has been confirmed, can be looked into and as such, there is nothing on record to show that the said report cannot be the basis of the findings recorded under Issue No. 1.

In regard to the other points raised by the learned counsel for the appellants during the course of arguments, no oral evidence or documentary evidence was referred to, which was not considered by the learned trial Court or the learned first Appellate Court, which calls for reappraisal of the evidence. There can be no reappraisal of evidence by this Court sitting in second appeal until and unless it was pointed that some document or oral evidence has not been considered by the Courts below and as no oral or documentary evidence was pointed out which was not considered by the Courts below, there can be no reappraisal of the evidence by this Court. Thus, no case is made out for interfering in the findings recorded by the learned first Appellate Court affirming the findings of the learned trial Court.

In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants, which is dismissed accordingly. However, the parties are left to bear their own costs.

December 31, 2008 (BSS)

( V.K. Ahuja ), Judge