High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No.251 of 2008

Reserved on 24.10.2016

Date of Decision: 28.10.2016

______________________________[_________________________

Gian Chand …...Appellant.

Versus

Ujaggar Singh and Ors. ....Respondents.

Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting

1? Yes

For the Appellant: Mr. N.K. Thakur, Senior Advocate with Ms.

Jamuna, Advocate.

For the respondents: Mr. Pawan Gaudam , Advocate.

_________________________________________________________

Sandeep Sharma, J. (Oral)

Instant regular second appeal filed under Section 100 of

CPC is directed against the judgment and decree d ated 12.3.2008,

passed by the learned Additional District Judge, Una, District Una, HP, in

Civil Appeal No. 65 of 2006, affirming the judgment and decree dated

1.6.2006, passed by learned Civil Judge (Sr. Div.), Una, District Una, HP,

in Civil Suit No. 61/1995, whereby suit for permanent prohibitory

injunction filed by the plaintiff has been dismissed.

2. Briefly stated facts as emerge from the record are that the

appellant-plaintiff filed suit for permanent prohibitory injunction

restraining respondents-defendants from taking forceful possession by

Whether reporters of the Local papers are allowed to see the judgment? Yes.

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raising any construction on the land depicted/denoted by letters ABCD

red in colour in site plan attached with the plaint, owned and

possessed by the plaintiff situated in “Abadi Deh” at Village Nangran

Upparla Tehsil and District Una (hereinafter referred to as the suit

property) and in alternative, suit for possession by demolition of

construction raised by the defendants illegally and forcefully during the

pendency of the suit. Plaintiff further averred that suit land denoted by

letters ABCD shown in red colour in the site plan and ‘Khola’ bounded

by letters DCIHG shown in green colour in the site plan attached with

the plaint are owned and possessed by the plaintiff and defendants

have no right, title, or interest therein. Plaintiff further contended that

the abadi denoted by letters NOPQRS and cattle shed depicted by

letters HIJKLM shown in yellow colour is owned and possessed by the

defendants. Plaintiff further claimed that defendants, who are very

head strong persons of the village started threatening to take forcible

possession of the suit land by raising construction thereupon and as

such, in this regard, he started collecting material on the spot. Despite

there being several requests to desist from afores aid activity,

defendants are hell-bent in raising construction over the suit land as

such; he is compelled to file the suit. Defendants by way of detailed

written statement refuted the claim put forth by the plaintiff raising

therein preliminary objections qua maintainability, locus-standi to file

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the suit, estoppels, acts and conduct and cause of action. On merits,

defendants refuted the claim of the plaintiff averring that site plan

attached by the plaintiff is wrong and against the factual position

existing on the spot. Defendants further claimed that as per site plan

attached by them along with written statement, green colour abadi

and plot is owned and possessed by the defendants, whereas a plot

shown in yellow colour is owned and possessed by the plaintiff and his

brother Walayati Ram. Defendants further averred that suit land shown

by letters ABCD and DCIHG shown in the attached site plan with the

plaint is owned and possessed by the defendants wherein abadi of the

defendants was existing since long. Defendants further claimed that old

abadi had fallen in year, 1988 whereupon, dependents raised abadi

(pacca structure). Defendants further claimed that plaintiff along with

his brother has been residing at village Panjawar and has no residential

house in village Nangran. In view of the aforesaid, defendants sought

dismissal of the suit.

3. Learned trial Court on the basis of aforesaid pleadings,

framed following issues:-

1. Whether the plaintiff is entitled to the relief of injunction as

prayed? OPP.

2. Whether the plaintiff is entitled to the relief of mandatory

injunction prayed? OPP.

3. Whether the suit is not maintainable in the present

form?OPD.

4. Whether the plaintiff has no locus standi to file the suit?OPD.

5. Whether the plaintiff is estopped to file this suit by his act

and conduct?OPD.

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6. Whether the suit has not been properly valued for the

purpose of court fee and jurisdiction? OPD.

4. Subsequently, learned trial Court dismissed the suit of the

plaintiff vide judgment dated 1.6.2006. Being aggrieved and dis-

satisfied with the aforesaid judgment and decree , passed by the

learned trial Court, plaintiff filed an appeal before the learned

Additional District Judge, Una. However, fact remains that the learned

Additional District Judge dismissed the appeal vide order dated

12.3.2008, preferred by the plaintiff. Hence, this second appeal before

this Court by the plaintiff.

5. This Court vide order dated 17.11.2008 admitted the

present appeal on following substantial questions of law:-

1.Whether the abadies and its area situated in Lal-Lakir (Abadi-

Deh-Area) where the description of the properties are mentioned

in the site plan of the spot, is sufficient identification of such

properties and with its description under Order 7Rule 3 CPC.

3. Whether the parties showing the existence of the abadies at the

spot, and on the combined reading/perusal of the site plans, the

existence of the disputed properties, stands established for the

purpose of its identification and description.

6. Mr. N.K. Thakur, Senior Advocate dully assisted by Ms.

Jamuna, Advocate, appearing for the appellant vehemently argued

that the judgments and decree passed by both the courts below are

not sustainable in the eye of law as the same are not based upon the

correct appreciation of evidence adduced on record by the

respective parties. He contended that bare perusal of the impugned

judgments suggests that learned courts below have fallen in grave error

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while not appreciating the evidence as well as pleadings available on

record in its right perspective and judgments are purely based upon the

conjectures and surmises and as such, same cannot be allowed to

sustain. While referring to the judgments passed by both the courts

below, Mr. Thakur, strenuously argued that both the courts below

returned erroneous finding that no material worth the name was led on

record by the plaintiff to describe/specify that the property qua which

injunction was claimed by him. Mr. Thakur while referring to the site

plan annexed with the plaint forcefully contended that the same was

sufficient to prove the actual position of the land in question and as

such, judgments passed by the courts below being contrary to the facts

deserve to be quashed and set-aside. Mr. Thakur, further submitted

that bare perusal of the site plan Ext.PW3/A and Ext.DW3/A would

clearly show that property in dispute is clearly identifiable. He further

argued that defendant himself in his cross examination before the Court

admitted that his father namely Sh. Lalu had four sons and abadi of

each is equal to all and all four brothers are owners of the their abadies

and as such, it stands duly proved on record that area ABCD is the part

of the property of the plaintiff. While concluding his arguments Mr.

Thakur, forcefully contended that area of abadi of each of four sons of

Lalu, if calculated from the site plans produced by the parties, it clearly

emerge that site denoted by letter ABCD belongs to the plaintiff but

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has wrongly been shown by the defendant to be of their own. Mr.

Thakur also invited attention of this Court to the plaintiff witnesses as well

as defendants to demonstrate that the plaintiff was able to prove on

record by leading cogent and convincing evidence that area in

dispute i.e. ABCD as denoted in site plan plaintiff Ext.PW3/A, belongs to

the plaintiff and as such, he could not be denied the relief as was

prayed in the suit. In the aforesaid background, Mr. Thakur, prayed for

decreeing his suit for permanent prohibitory injunction after setting

aside the judgment and decree passed by the courts below.

7. Per contra, Mr. Pawan Gautam, Advocate, appearing on

behalf of the respondent-plaintiff supported the judgments passed by

the courts below. Mr. Gautam strenuously argued that the judgments

passed by both the courts below are based upon the co rrect

appreciation of the evidence available on record and as such, no

interference, whatsoever, of this Court is warranted in the present facts

and circumstances and same deserves to be upheld. With a view to

substantiate his aforesaid argument, Mr. Gautam, made this Court to

travel through the judgments passed by the courts below to

demonstrate that learned trial Court while ascertaining the genuineness

and correctness of the findings recorded by the court below, has dealt

with each and every aspect of the matter very meticulously and as

such, there is no reason to interfere in the well reasoned concurrent

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findings of facts and law recorded by both the courts below. While

concluding his arguments, Mr. Gautam, vehemently argued that this

Court has very limited scope to re-appreciate the evidence especially

when there are concurrent findings recorded by the courts below. In

this regard, he invited attention of this Court to the judgment passed by

Hon’ble Apex Court in Laxmidevamma and Others vs. Ranganath and

Others, (2015) 4 SCC 264.

8. I have heard learned counsel for the parties as well

carefully gone through the record.

9. Before adverting to explore the answer to the substantial

questions of law Nos. 1 and 3, it would be apt to reproduce herein below

provisions contained under Order 7, Rule 3 CPC:-

3. Where the subject matter of the suit is immovable

property.- Where the subject matter of the suit is immovable

property, the plaint shall contain a description of the

property sufficient to identity it, and, in case such property

can be identified by boundaries or numbers in a record of

settlement or survey, the plaint shall specify such boundaries

or numbers.

10. Close scrutiny of the aforesaid provision of law clearly suggest

that when the subject matter of suit is immovable property, plaint must

contain description of the property sufficient to identify it and incase, such,

property can be identified by the boundaries or numbers in record of the

settlement or survey the plaint must specify such boundaries or numbers.

11. In the present case, plaintiff while filing suit for permanent

prohibitory injunction restraining the defendants from raising construction on

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the land denoted with letters ABCD shown red in colour in the site plan

attached with the plaint, claimed that aforesaid land (denoted with letters

ABCD shown in read colour and the “khola” bounded by letters DCIHG shown

in green colour in the site plan is owned and possessed by the plaintiff and

defendants have no right title or interest therein. To substantiate his aforesaid

averments, plaintiff placed reliance upon document Ext.PW3/A i.e. site plan

showing the location of abadi land situated in abadi deh khasra No. 2443

owned and possessed by Shri Gian Chand and Shri Udham Chand (Plaintiff).

12. Careful perusal of the site plan clearly suggests that land

denoted by letters ABCD is surrounded by houses owned by defendants Kartar

Chand, Girdhari Lal and Harbans Lal. Similarly, perusal of aforesaid site plan

also suggests that plaintiff namely Gian Chand is also in possession of area

denoted by letters DCGHI. Though, aforesaid site plan clearly suggests that

land in question is abadi land possessed by plaintiff and defendants jointly

over khasra No. 2443 but definitely, there is no description, if any, qua the

specific shares owned and possessed by the parties at the spot. This Court

also perused site plan Ext.DW3/A placed on record by the defendants

showing the location of abadi and property of defendant Kartar Chand,

perusal whereof clearly suggests that position at spot is almost similar as has

been reflected in site plan Ext.PW3/A placed on record by the plaintiff but for

area denoted by letters ABCD in the site plan, Ext.PW3/A. Plaintiff has claimed

that area denoted by ABCD belongs to him whereas in site plan Ext.DW3/A,

area, defendant has claimed the same to be in his possession. By way of

placing aforesaid site plans, both the parties have claimed area in ownership

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and possession over the land in dispute i.e. area denoted by letters ABCD in

site plan Ext.PW3/A. Perusal of the plaint nowhere suggests that plaintiff made

any averments with regard to his right over the land denoted by letters ABCD

as reflected in the site plan. There is no mention/description, how plaintiff

became entitled qua the suit land as described herein above but perusal of

statement/deposition made by the defendant before the Court suggests that

parties to the lis are the descendents of one Shri Lalu, who had four sons,

Udham, Banta, Kartara and Attra. Present plaintiff namely Gian Chand is son

of Udham. Respondents-defendants are descendents of Kartara. It has also

come in the statement of DW1 Ujaggar Singh, wherein in his cross-

examination, he has admitted the relationship between the plaintiff by stating

that sons of Lalu were having equal share in the abadi and they are in their

separate possession. He also admitted in his cross examination that there

exists a passage between the abadis of Kartar Chand and Attar Chand,

which leads from West to East. Hence, it can be concluded that there is no

dispute, if any, with regard to relationship, if any, between the parties as well

as ownership and possession qua their respective shares as reflected in the site

plans submitted by both the parties save and except land denoted by letters

ABCD as reflected in site plan Ext.PW3/A.

13. PW1 (plaintiff) with a view to support his case stated that he is

owner in possession of the suit property. He further stated that 7-8 years ago

defendant threatened to take forcible possession and collected the material.

He further stated that he got prepared revenue papers and filed the suit and

obtained stay from the Court. In his cross examination, he admitted that his

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house situated in village Nangran had collapsed in the year,1988 and since

then, he is living with his brother at village Panjawar. PW1 also admitted that

defendants are residents of village Nangran. In his cross examination, he

admitted the suggestion put to him by the defendants that house of Kartara

was “kacha”, which had collapsed in the year, 1988 due to heavy rain. But

most importantly, he admitted in his cross examination that defendant kartara

raised construction of house 8-9 years back and at that time, he was present

in village. He also admitted that he had lodged complaint with the

Panchayat. He also admitted the suggestion put to him that house of kartara

is situated in their ownership but he was unable to mention about khasra

number. Similarly, he was unable to give measurement of property, which he

claimed to be of his. He denied the suggestion put to him that house of

defendant is situated in the Lal Lakir and it is in his possession since beginning.

Similarly, PW2 Suresh Kumar placed photographs on record Ext.PW2/A to

Ext.PW2/B along with Negatives as Ext.PW2/C to Ext.PW2/D.

14. PW3 Piara Lal by way of affidavit stated that he is a draftsmen

and proved the site plan Ext.PW3/A. In his cross-examination, he fairly

admitted that he has no personal knowledge of the plot and the parties. He

also admitted that he did not take assistance of any revenue official for

locating the suit property, rather, he admitted in cross examination that he

mentioned marginal notes on the map as per direction of the plaintiff.

15. PW5 Karam Chand by way of affidavit supported the version of

the plaintiff as narrated in the plaint but in his cross examination, he also

admitted that plaintiff Gian Chand, who is brother Wilayati Ram is residing in

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Village Panjawar, whereas the suit land is jointly owned by them, which is

situated within the Lal Lakir. He also admitted the factum of flood in the year,

1988, wherein the house of defendant Kartara was collapsed. He also

admitted that after flood, Kartara constructed 2-3 rooms. Most importantly, he

admitted in his cross examination that since then defendant namely Kartara is

in possession of the suit property.

16. Conjoint reading of aforesaid witnesses led on record clearly

suggests that plaintiff himself was unable to give specific description, if any, of

the property being claimed by him by way of suit. He in his cross examination

categorically admitted that house of Kartara collapsed in year, 1988 due to

heavy rains and thereafter, he constructed house 8-9 years back when he was

present in his village. He further admitted that he lodged complaint with the

Panchayat, meaning thereby construction, if any, over the suit land as being

claimed by the plaintiff, was raised by the defendant 8-9 years ago, it is not

understood that if construction, if any, had taken place 8-9 years back over

the suit land as admitted by the plaintiff, why plaintiff kept mum for these

considerable years. Oral evidence as has been discussed in detail similarly

nowhere supports the case because none of PWs gave specific description of

the property, as is being claimed by the plaintiff in the plaint. PW3 who

prepared the site pan Ext.PW3/A and on which plaintiff has placed heavy

reliance, also nowhere specifically described the property, rather, in his cross-

examination, he admitted that he has no personal knowledge of the plot of

the parties meaning thereby, before making the site plan on the instructions of

plaintiff as admitted by him, he never visited the site as described in the site

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plan Ext.PW3/A. He further admitted that he mentioned marginal notes on the

map as per direction of the plaintiff, which clearly creates doubt qua the

correctness, if any, of the site plan, Ext.PW3/A. PW4 Karam Chand also

admitted that plaintiff Gian Chand along with his brother Wilayati Ram resides

at village Panjawar, which fact duly corroborates the version put forth by the

defendants in written statement as well as oral deposition that plaintiff has no

right, title, or interest over the suit land since he resides at village Panjawar

alongwith his brother. He also admitted that in 1988 there were floods and the

house of defendant was collapsed whereafter, he constructed 2-3 rooms.

PW4 specifically admitted in is cross examination that since then, i.e. 1988

defendants are in the possession of the suit property.

17. After carefully perusing the entire evidence led on record

especially Ext.PW3/A site plan, this Court has no hesitation to differ with the

findings returned by the courts below that the plaintiff was unable to give

specific description of the property being claimed by him by way of suit. As

has been noticed above, both the site plans Ext.PW3/A and Ext.DW3/A,

suggests that they are similar and there is not much variation as far as physical

possession of the property is concerned. It also emerges from the record that

this property has been inherited by the parties being descendents of one Lalu.

Though DW1 in his statement admitted that sons of Lalu were having equal

shares in the abadi and they are in their separate possession but as has been

noticed above, there is nothing on record placed by the plaintiff, suggestive

of the fact that land denoted by letters ABCD as described in the site plan

had come to his share being descendent of Lalu. Since, plaintiff specifically

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claimed land denoted by letter ABCD as reflected in the site plan, he ought to

have placed on record some evidence , be it ocular or documentary to

demonstrate that this portion of land had fallen in his share after the death of

their ancestors Lalu. Since both the parties by way of placing reliance upon

separate site plans Ext.PW3/A and Ext.DW3/A, have claimed owner ship and

possession over the suit land, both the courts rightly came to conclusion that

no decree of permanent prohibitory injunction could be granted in absence

of specific description of the property and as such, this Court sees no illegality

and infirmity in the judgments passed by the both the courts below.

Interestingly, none of the parties has stated anything with regard to manner in

which they became entitled to this property reflected in the site plans.

18. Similarly, there are no dimensions, if any, of the property

acquired by the parties being descendents of Lalu. Since both the parties

claimed ownership and possession over the suit property, no definite finding, if

any, qua the possession and ownership on the same could be recorded by

both the courts below in the absence of specific description of the property.

19. Mr. Thakur, stated that land denoted by letters ABCD in site plan

Ext.PW3/A was sufficient as far as description of property is concerned but this

Court is unable to accept the contention put forth by Mr. Thakur, solely for the

reason that since both the parties claimed right over the property by placing

reliance on different site plans, onus was high upon the plaintiff to prove his

ownership and possession qua the suit land by leading cogent and

convincing evidence, which is admittedly not on record. As far as possession

of the suit property is concerned, defendants-respondents by way of leading

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cogent and convincing evidence ha ve been able to prove beyond record

that they are in possession of the suit land. PW1 (plaintiff himself) and PW4 in

cross examination have clearly admitted that in year, 1988, there were floods

and after that defendant Kartara had raised construction over the same and

he is in possession of the same. PW1 in his cross examination categorically

admitted that Kartara raised construction 8-9 years back and he reported the

matter to the Panchayat, meaning thereby construction, if any, by defendant

at that point of time, was raised upon the land being claimed by the plaintiff

in the present suit. Similarly, PW5 Karam Chand admitted that in the year,

1988, there were floods, wherein house of defendant was collapsed and

thereafter, he constructed 2-3 rooms. He also admitted that since then,

defendants are in possession of the suit land.

20. Apart from above, defendant Ujaggar Singh S/o Kartara

categorically stated by way of affidavit that the suit property denoted by

letters ABCD and DCIHG is in fact owned and possessed by the defendants

where their abadi is existing since long which collapsed in the year, 1988 due

to heavy rains and thereafter, they raised “pacca” abadi. This aforesaid

candid statement by defendant duly stands corroborated by the version put

forth by the plaintiff himself as well as witnesses cited by him. This Court in view

of the candid admission having been made by DW1 that all the descendents

of Lalu had equal share in the property, carefully perused the site plans

annexed by both the parties with their respective pleadings. Close scrutiny of

both the spot maps which are almost identical in nature, nowhere suggests

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that plaintiff is in possession of less share as compared to others, rather, the

plaintiff has got consolidated share of one portion of the property.

21. Hence, this Court, after examining the matter at length, has no

reason to differ with the finding returned by the Court below, wherein they

came to conclusion that in view of the failure on the part of the plaintiff to

give proper description of the suit property, it was not necessary for the

defendants to lead any evidence to disprove correctness of the site plan or to

identify the subject matter of the suit because whatsoever is “not proved”,

need not be “disproved”. Similarly defendants successfully proved on record

that they had kacha house over the suit land, which had fallen down in the

year, 1988, and thereafter, they raised pacca abadi in the year, 1988 and

since then they are in possession and the plaintiff has no concern over the

same. This Court also finds that defendants also proved on record that the

plaintiff along with his brother has been living at village Panjawar for last 40

years and he has no residential house in the village Nangran.

22. This Court is fully satisfied that both the courts below have very

meticulously dealt with each and every aspect of the matter and there is no

scope of interference, whatsoever, in the present matter since both the Courts

below have returned concurrent findings, which otherwise appear to be

based upon proper appreciation of evidence, this Court has very limited

jurisdiction/scope to interfere in the matter. In this regard, it would be apt to

reproduce the relevant contents of judgment rendered by Hon’ble Apex

Court in Laxmidevamma’s case supra, wherein the Court has held as under:-

“16. Based on oral and documentary evidence, both the courts below

have recorded concurrent findings of fact that plaintiffs have established

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their right in 'A' schedule property. In the light of concurrent findings of

fact, no substantial questions of law arose in the High Court and there

was no substantial ground for re-appreciation of evidence. While so, the

High Court proceeded to observe that the first plaintiff has earmarked the

'A' schedule property for road and that she could not have full fledged

right and on that premise proceeded to hold that declaration to plaintiffs'

right cannot be granted. In exercise of jurisdiction under Section 100

C.P.C., concurrent findings of fact cannot be upset by the High Court

unless the findings so recorded are shown to be perverse. In our

considered view, the High Court did not keep in view that the concurrent

findings recorded by the courts below, are based on oral and

documentary evidence and the judgment of the High Court cannot be

sustained.”

22. Hence, this Court has no hesitation to conclude that abadi and

its area situated in Lal Lakir abadi deh area as mentioned in site plan placed

on record by parties was not sufficient to identify the properties as provided

under Order 7 Rule 3 CPC. Similarly, after carefully perusing entire evidence

available on record, especially site plan referred above, it cannot be said by

any stretch of imagination that disputed property, as reflected in site plans

was sufficient to establish identity of suit property being claimed by the plaintiff

in the plaint. Substantial questions of law are answered accordingly.

23. Consequently, In view of the detailed discussion made herein

above, this Court sees no force much less substantial in the present appeal

and as such, same is dismissed being devoid of any merit.

28

th

October, 2016 (Sandeep Sharma),

manjit Judge.

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