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High Court Of Himachal Pradesh
M.R.VERMA
BALI RAM - Appellant
Versus
MELA RAM - Respondent
Regular Second Appeal No. 269 of 1999
Decided On : 08/28/2002
Interference - Property Dispute - Code of Civil Procedure - Section 100 - Order 26 - [Rule 9 of Order 26 of the Code of Civil Procedure] - The court found that the defendant was interfering with the possession of the plaintiff over the suit land, leading to the dismissal of the plaintiff's suit for permanent injunction. However, the court held that the findings regarding the interference were unreasonable and not supported by the evidence on record. The court also emphasized the need for a local investigation to ascertain the actual position of the disputed land, and remanded the case to the lower appellate Court for further proceedings.
Fact of the Case:
The plaintiff filed a suit for permanent prohibitory injunction against the defendant, alleging interference with his possession over a piece of land. The trial court partly decided in favor of the plaintiff, but the lower appellate court dismissed the suit. The plaintiff appealed under Section 100 of the Code of Civil Procedure.
Finding of the Court:
The court found that the defendant was interfering with the possession of the plaintiff over the suit land, but the findings were deemed unreasonable and not supported by the evidence on record. The court emphasized the need for a local investigation to ascertain the actual position of the disputed land.
Issues: The issues included ownership and possession of the suit land, interference by the defendant, and the maintainability and jurisdiction of the suit.
Ratio Decidendi: The court emphasized the need for a local investigation to elucidate the matter in dispute, as provided under Rule 9 of Order 26 of the Code of Civil Procedure. It held that the findings regarding interference were unreasonable and remanded the case for further proceedings.
Final Decision: The appeal was allowed, the findings on certain issues were set aside, and the case was remitted to the lower appellate Court with a direction to appoint a Local Commissioner to carry out a local investigation and dispose of the appeal in accordance with law.
Key Points: - The court emphasizes the need for a local investigation to elucidate the matter as per Rule 9 of Order 26 CPC. (!) - The findings that the defendant was not interfering with the plaintiff’s possession were deemed unreasonable and not supported by the record; the case is remanded for a Local Commissioner to conduct a local investigation and dispose of the appeal in accordance with law. (!) (!) (!) - The appeal is allowed; findings on issues 1 and 2 are set aside; findings on issues 3 to 9 are sustained; remand to appoint a Local Commissioner to ascertain the actual position of the land khasra No. 151/1 and to report, after which issues 1 and 2 will be re-decided. (!)
M.R. Verma, J.—This appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant/plaintiff (hereafter referred to as the plaintiff) against the judgment and decree dated 24.6.1999 passed by the learned District Judge, Bilaspur whereby the judgment and decree dated 2.6.1992 passed by the learned Sub Judge, Ghumarwin dismissing the suit of the plaintiff, have been affirmed.
2. Brief facts leading to the presentation of this appeal are that the plaintiff instituted a suit for permanent prohibitory injunction against the respondent/defendant (hereafter referred to as the defendant) restraining him from interfering in the suit land comprising Khewat/khatauni Nos.-61 min/67 min, Khasra No. 151/1, measuring 1-3 Bighas, situate in village Matyal, Tehsil Ghumarwin, District Bilaspur. The case of the plaintiff as made out in the plaint is that he alongwith the proforma respondent/defendant is owner in possession of the suit land having a residential house, cowshed and courtyards on the suit land and their possession as such is since time immemorial. The defendant illegally got allotment of two Biswas of Nautor land out of the/adjoining khasra No. 251/246 though he was not eligible for such allotment. Thereafter the defendant started interfering with the possession of the plaintiff and the proforma defendant over the suit land I by putting raw material on the suit land and by felling the trees standing I thereon and further threatened to raise construction by digging the court-yard of the cow-shed of the plaintiff. The defendant did not desist from In his acts despite requests. Hence the suit.
3. The defendant contested the suit. In the written statement he raised preliminary objections regarding maintainability and valuation of the suit, jurisdiction of the Court, non-joinder and misjoinder of necessary parties, want of locus standi, estoppel and res judicata. On merits, it was claimed that the suit land is not in possession of the plaintiff nor there exist any cow-shed, residential house or courtyard. It has further been claimed that the suit land is situate between the cattle shed of the defendant and the land allotted to the defendant and there exists a path on a part of the suit land and the remaining suit land was used by the defendant as Bartan and he had constructed a cow-shed and a house on land khasra No. 151/ 2. Thus, the claim of the plaintiff has been denied.
4. The plaintiff filed replication thereby controverting the defence taken by the defendant and re-affirmed his claim.
5. On the pleadings of the parties, the learned trial Judge framed the following issues : "
1. Whether the plaintiff is owner in possession over the suit land as alleged? OPP
2. Whether the defendants are interfering with the possession of plaintiff over the suit land as alleged? OPP.
3. Whether the plaintiff is entitled for possession of the suit land if found to be dispossessed during the pendency of the suit as alleged? OPP
4. Whether the suit is not maintainable as alleged? OPD.
5. Whether this court has no jurisdiction to entertain and try the suit as alleged? OPD.
6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD.
7. Whether the suit is bad for non-joinder and mis-joinder of necessary parties as alleged? . OPD.
8. Whether the suit is barred by principle of res judicata as alleged? OPD.
9. Whether the plaintiff is estopped to file the suit as alleged? OPD.
10. Relief."
6. After recording the evidence and hearing the parties, the learned trial Judge decided issue No. 1 partly in favour of the plaintiff and partly against him and held issue No. 3 as redundant. Issue No. 2 was held against the plaintiff and the remaining issues were decided against the defendant. In view of the findings so recorded, the suit was dismissed vide judgment and decree dated 2.6.1992. Being aggrieved, the plaintiff preferred an appeal which was dismissed by the
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