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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Chander Bhusan Barowalia, J.
Budhu – Appellant
Versus
Lal Man & another – Respondents
RSA No. 397 of 2005
Decided On : 30-10-2017
encroachment - land dispute - [Indian Evidence Act, 1872 - Section 101, Indian Evidence Act, 1872 - Section 102, Specific Relief Act, 1963 - Section 38] - The court discussed the evidence presented by both parties, including the demarcation report and witness testimonies, to determine whether the defendants had encroached upon the plaintiff's land. The court emphasized the importance of proving encroachment with concrete evidence and found that the plaintiff failed to establish the encroachment, leading to the dismissal of the appeal.
Fact of the Case:
The plaintiff claimed ownership of a piece of land and filed a suit against the defendants for encroaching on the land and constructing a room without authorization. The trial court decreed in favor of the plaintiff, but the lower appellate court allowed the defendants' appeal.
Finding of the Court:
The court found that the plaintiff failed to prove the encroachment by the defendants and emphasized the importance of concrete evidence in establishing such claims. The court also held that there was no error in the judgment and decree of the lower appellate court.
Issues: The issues included the entitlement of the plaintiff for relief of permanent and mandatory injunction, locus standi, cause of action, maintainability of the suit, and valuation.
Ratio Decidendi: The court's decision was based on the failure of the plaintiff to provide concrete evidence of encroachment by the defendants, as well as the proper appreciation of evidence and documents by the lower appellate court.
Final Decision: The appeal was dismissed, and the parties were left to bear their own costs.
Chander Bhusan Barowalia, J.
The present regular second appeal has been maintained by the appellant/plaintiff (hereinafter referred to as “the plaintiff”), laying challenge to the judgment and decree, dated 02.07.2005, passed by the learned District Judge, Mandi, District Mandi, H.P., in Civil Appeal No. 116 of 2003, whereby the appeal filed by the respondents/defendants (hereinafter referred to as “the defendants”) against the judgment and decree, dated 31.10.2003, passed by the learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi, H.P., in Civil Suit No. 33 of 2002, decreeing the suit filed by the plaintiff, was allowed.
2. The key facts of the case can tersely be summarized as under:
The plaintiff by maintaining a suit for permanent prohibitory and mandatory injunction averred that he is exclusive owner-in-possession of the land comprised in Khewat Khatauni No. 122 min/146, Khasra No. 1384, measuring 0-1-8 bighas, situated in Mauja Chachiot/54, Tehsil Chachiot, District Mandi, H.P. (hereinafter referred to as “the suit land”). As per the revenue record, there was an entry qua existence of a gaimumkin house on the suit land, but the same had fallen and the suit land is in ownership and possession of the plaintiff. The plaintiff has further averred that the defendants/respondents (hereinafter referred to “the defendants”) without having any right, title and interest forcible encroached some portion of the suit land and during the pendency of the suit they succeeded in raising the construction of a single room over khasra No. 1384/1, measuring 0-0-16 bighas. As per the plaintiff, the construction, so raised, and possession of the defendants over the above land is wholly wrong, illegal and unauthorized, as they have no right, title and interest over the suit land, thus the plaintiff sought that his possession be restored by demolition of the unauthorized construction of a room and the possession of the land be also restored to the plaintiff.
3. The defendants, by way of filing written statement, contested and resisted the suit of the plaintiff. They raised preliminary objections, viz., maintainability, locus standi, cause of action and valuation. On merits, the defendants contended that as per the revenue record their residential house had been existing on the suit land, thus the allegations of the plaintiff are baseless and vague. The existence of the residential house of the defendants belies the plea of the plaintiff that the defendants are interfering over the suit land. As per the defendants they carried out renovation of their old house, which was existing over abadi deh land, bearing khasra No. 1385, which is adjoining to the suit land and no construction had been raised on the suit land. The defendants further averred that only on the basis of apprehension the plaintiff filed the suit.
4. The learned Trial Court on 03.08.2002 framed the following issues for determination and adjudication:
“1. Whether the plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for? OPP
2. Whether the plaintiff is entitled for relief of mandatory injunction? OPP
3. Whether the plaintiff has no locusstandi to file the present suit? OPD
4. Whether the plaintiff has no cause of action to file the present suit? OPD
5. Whether the suit of the plaintiff is not maintainable in the present form as alleged? OPD
6. Whether the suit of the plaintiff is bad for the purpose of valuation of Court fee and jurisdiction, as alleged? OPD
7. Relief.”
5. After deciding issues No. 1 and 2 in favour of the plaintiff, issues No. 3 to 5 against the defendants and issue No. 6 in favour of the defendants, the suit of the plaintiff was decreed. Subsequently, the defendants preferred an appeal before the learned Lower Appellate Court, which was allowed, vide impugned judgment dated 02.07.2005, hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law:
“1. Whether the
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