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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
JYOTSNA REWAL DUA, J.
Basu Dev and Others – Appellants
Versus
Narad – Respondent
RSA No. 375 of 2009
Decided On : 25-11-2022
Suit land - Permanent prohibitory injunction – Decreed – Possession – Ownership of State of Himachal Pradesh and in possession of ‘Aab Pash Kunindgan’. Plaintiff is a ‘Bartandaran’ of Mohal and Mouja Bundla. Khasra No. 54 is ‘Gair Mumkin Kuhl’ (water channel) - Plaintiff has got right to irrigate his land from the water of said ‘Kuhl’ - Defendant is also ‘Bartandaran’ of Mohal and Mouja Bundla - He has also got right of irrigation through the suit land but he has no right to raise construction on suit land or to block the ‘Kuhl’ by raising structure thereupon - defendant constructed a path over suit land comprised in Khasra No. 52 and a room on Khasra No. 54 measuring 10 feet in length and 8 feet in breadth - These constructions were raised by the defendant during the pendency of suit and after service of stay order upon him - Matter was reported to the Pradhan Gram Panchayat Bundla. Police protection was also obtained from learned Trial Court for enforcing interim stay order granted by it, yet suit land was encroached by defendant - defendant was served in the civil suit - Though he put in appearance in Court through his counsel but he allowed himself to be proceeded ex-parte - Plaintiff led oral as well as documentary evidence in support of his pleadings. (Para 54)
Finding of Court : Defendant had no right to raise any construction over these two khasra numbers and to cause interference over exercise of plaintiff’s rights thereupon - Site-plan Ext.P-5 might have been prepared by the clerk of the counsel, however, length and width of room constructed by defendant over Khasra No. 54 had been described therein - Even otherwise, the defendant had not denied raising of construction over the suit land - Legal heirs of defendant-Budhu Ram in their appeal filed before the learned First Appellate Court did not specifically deny raising of construction by their predecessor over suit land - It was established on record that the Pradhan Gram Panchayat as well as Police Officials had reported raising of construction by the defendant over suit land - In fact, learned Trial Court had provided police assistance vide order dated 6.6.2000, for enforcing its injunction order - Very fact, that defendants have come up in appeal not against the permanent prohibitory injunction granted against them but against the mandatory injunction goes on to show that their predecessor had raised construction over the suit land.
Result : Second appeal , same is accordingly dismissed. Pending miscellaneous applications, if any, also stand disposed of.
JUDGMENT :
JYOTSNA REWAL DUA, J.
1. Decree of permanent prohibitory & mandatory injunction granted in favour of the plaintiff by the learned Trial Court was affirmed by the learned First Appellate Court with slight modification in the relief clause. Aggrieved, the legal heirs of original defendant have filed this second appeal.
2. Facts:
(a) Khasra No. 54 land measuring 0-03-37 hectares is entered in ownership of State of Himachal Pradesh and in the possession of ‘Aab Pash Kunindgan’. Plaintiff is a ‘Bartandaran’ of Mohal and Mouja Bundla. Khasra No. 54 is ‘Gair Mumkin Kuhl’ (water channel). The plaintiff has got right to irrigate his land from the water of said ‘Kuhl’. The defendant is also ‘Bartandaran’ of the Mohal and Mouja Bundla. He has also got right of irrigation through the suit land but he has no right to raise construction on the suit land or to block the ‘Kuhl’ by raising structure thereupon.
(b) Khasra No. 52 measures 1-14-08 hectares. The said khasra is recorded as ‘Charagah Bila Darakhtan’. Being ‘Bartandaran’ of Mohal and Mouja Bundla, the plaintiff has got grazing right in this land. The defendant in the capacity as ‘Bartandaran’ has also got right of grazing but he has no right to raise construction over the suit land.
(c) The defendant constructed a path over the suit land comprised in Khasra No. 52 and a room on Khasra No. 54 measuring 10 feet in length and 8 feet in breadth. These constructions were raised by the defendant during the pendency of the suit and after the service of stay order upon him. The matter was reported to the Pradhan Gram Panchayat Bundla. Police protection was also obtained from the learned Trial Court for enforcing the interim stay order granted by it, yet the suit land was encroached by the defendant.
(ii) The defendant was served in the civil suit. Though he put in appearance in the Court through his counsel but he allowed himself to be proceeded ex-parte on 5.6.2000. Plaintiff led oral as well as documentary evidence in support of his pleadings.
(iii) After appreciating the pleadings and the evidence led by the plaintiff, learned Trial Court on 1.12.2003 passed a decree of permanent prohibitory injunction in favour of plaintiff restraining the defendant from changing the nature of suit land by raising any construction thereon. The decree of mandatory injunction was also passed in plaintiff’s favour, compelling the defendant to demolish the portion constructed by him in Khasra Nos. 52 and 54 as shown in the site-plan (Ext.P-5). The site-plan Ext.P-5 was made part of the decree.
(iv) Legal heirs of defendant-Budhu Ram preferred First Appeal under Section 96 of the Code of Civil Procedure (CPC) against the judgment and decree passed by the learned Trial Court:
(a) The legal heirs of original defendant inter-alia pleaded in their first appeal that Budhu Ram their predecessor-in-interest had died on 7.2.2001. The judgment and decree passed by the learned Trial Court dated 1.12.2003 being against a dead person was nullity. Learned First Appellate Court did not find force in this contention. On facts, it was observed that original defendant Budhu Ram’s death had been brought to the notice of the learned Trial Court on 27.2.2001. Plaintiff’s counsel had prayed for exemption from filing the application to bring on record the legal heirs of the deceased-Budhu Ram. Since he was already proceeded ex-parte vide order passed on 5.6.2000, learned Trial Court had allowed this prayer by observing that the original defendant-Budhu Ram was proceeded ex-parte, hence, in light of Order 22 Rule 4(4) CPC, there was no need to bring on record his legal heirs. While rejecting the contention of legal heirs of Budhu Ram, learned First
Point of Law : Defendants have come up in appeal not against the permanent prohibitory injunction granted against them but against the mandatory injunction goes on to show that their predecessor had ....
The court discussed the legal principles related to the jurisdiction of the court to interfere with concurrent findings of fact and law.
Concurrent findings of fact by lower courts should not be disturbed in a second appeal unless a substantial question of law arises, which was not applicable in this case.
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The court affirmed that encroachment on public property negates claims of ownership and that plaintiffs must approach courts with transparent evidence.
Co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in common property absolutely and simply because he is a co-owner unless any act of person in possessi....
Concurrent findings of fact in a second appeal under Section 100 of the CPC cannot be interfered with unless found to be perverse; further, a co-owner cannot be restrained from raising construction o....
The burden of proof lies with the party making a claim, and non-appearance of a party in court does not negate established evidence.
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