IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 355 of 2007 Date of Decision : October 6, 2009 Nihala Ram …Appellant. Versus: Chamaru Ram & Ors. …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. V. D. Khidta, Advocate. For the respondents: None. Sanjay Karol, J. (Oral) The plaintiff/appellant herein is aggrieved of the judgment of reversal dated 15.6.2007 passed by the District Judge, Chamba Division, Chamba, H.P. in Civil Appeal No.1 of 2007 titled as Chamaru Ram & Ors. vs. Nihala Ram, reversing the findings, judgment and decree dated 24.10.2006 passed by the Civil Judge (Sr. Division), Chamba, H.P. in Civil Suit No.54/2005, titled as Nihala Ram vs. Chamaru Ram & Ors. For the purposes of adjudication of the appeal, the appellant is referred to as the ‘plaintiff’ and the respondents are referred to as the ‘defendants’. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 The plaintiff filed a suit for recovery of a sum of Rs.31,500/- pleading that he had purchased 4 biswas of land from defendant No.1 vide Sale Deed No.414, dated 5.9.1989. The said land comprised out of Khasra No. 492/29, situated in Mauza Sukretha, Pargana Dhundi, Tehsil & Distt. Chamba, H.P., on which he constructed a double storeyed house and built up a boundary wall. On 3.12.2004, the defendants illegally demolished the boundary wall raised by him and when the matter was reported to the police no action taken by them. The loss was got assessed through an expert and a legal notice served upon the defendants asking them to pay the suit amount along with interest. In the absence of any response, the plaintiff was constrained to file the suit. The defendants resisted the suit disputing the sale and the plaintiff having been put in possession of the suit premises. The defendants also pleaded that no boundary wall could have been constructed by the plaintiff as the land in question was jointly owned by several persons. Hence plea of demolition of the boundary wall was false. The trial Court, based on the pleadings of the parties framed the following issues:- “1. Whether the plaintiff is entitled to recover a sum of Rs.31,500/- as damages as alleged? ….OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? …..OPD 3 3. Whether the plaintiff is estopped to file the present suit by his act and conduct as alleged? .....OPD 4. Whether the plaintiff is not come to the Court with clean hand as alleged? ….OPD 5. Relief.” Opportunity to lead evidence was afforded to the parties. The trial Court partly decided issue No.1 in favour of the plaintiff and issues No.2 to 4 in the negative. Appreciating the material on record, the trial Court held that the defendants’ conduct proved that they in fact had demolished the wall and as such the plaintiff had suffered a loss of Rs.15,358/- and accordingly the suit was partly decreed. Aggrieved of the same, the defendants filed an appeal and appreciating the material on record, the first Appellate Court reversed the judgment and decree and dismissed the plaintiff’s suit on the ground that the trial Court had erred in appreciating the evidence/material on record. The plaintiff was found not to have proved that the wall had actually been demolished by the defendants. The relevant findings of the first Appellate Court are reproduced as under:- “Now, turning to other aspect of the case. For the sake of arguments, even if it is believed that plaintiff Nihala Ram had raised a boundary wall around 4 biswas of the land, even otherwise there is no iota of evidence on record to show that the appellants/ defendants had 4 demolished the same. It is significant to note that the PWs were cross-examined at length. PW-2 Nihala Ram could not state as to in which year he constructed his boundary wall, who has further stated that he had taken demarcation before raising the boundary wall and the partition was also affected, but there is no such evidence on record to show that demarcation was taken by the plaintiff and the partition having taken place among the co-sharers. It is also significant to note that the plaintiff was not present at the time of alleged demolition of the boundary wall as he has admitted in his cross- examination that he lives at a distance of two miles from there, who was told by the passers by, but he did not disclose the name of the passer-bar, who disclosed to him about demolition of the wall. PW-2 P. L. Gupta is a retired SDO PWD, who is not an eye witness, who only visited the spot and made estimate of the loss at the instance of plaintiff. PW-3 Khiyalia is an interested witness whose sister is married to the plaintiff, who has given altogether different version by stating that the wall, in question, was constructed about 16-17 years ago which remained there for 11-12 years and then it was demolished, who has also admitted in his cross-examination that his house is situated at a distance of half kilometer from the spot. PW- 3 has stated that the son of Chamaru had demolished the wall about 11 years ago when he was present in his house, meaning thereby that he was not present at the spot as his house is situated at a distance of half kilometer from the spot, who did not disclose to anyone. Apart from it, PW-3 has not disclosed the name of the person, who demolished the wall and, as such, it is clear that no witness of the plaintiff could prove on record as to who had demolished the boundary wall in question, if any. Even if the affidavit of plaintiff Nihala Ram dated 7.4.2006 placed on record is 5 perused, then the boundary wall was demolished on 3.12.2004 according to him but his brother-in-law, Khiyalia as PW-2 has unfolded altogether different version by stating that the boundary wall was demolished about 11 years ago, which led me to the conclusion that the plaintiff/respondent has miserably failed to prove on record his case for damages to the tune of Rs.15,358/- which was wrongly granted by the learned court below without any basis and foundation and, therefore, I have no hesitation in coming to the conclusion that the learned court below has gravely erred in granting part damages to the tune of Rs.15,358/- without any basis and foundation, as no demolition of the boundary wall by the appellants/ respondents on the alleged date is proved on record. Accordingly, point No.1 is answered in affirmative.” Mr. Khidta, learned counsel for the appellant has emphatically argued that the findings returned by the first Appellate Court are illegal, unjust, arbitrary and perverse. The Court erred in not taking into consideration the fact that the appellant had purchased 4 biswas of land, description and boundary of which was not in dispute. It wrongly concluded that the plaintiff failed to prove the sale deed in terms of which he purchased 4 biswas of land from Shri Chamaru Ram and it failed to take into account the defendants conduct while deciding the appeal. The defendants were served in the appeal but however, they have chosen not to enter appearance. Hence, the matter has been considered and decided in their absence. 6 The appeal was admitted on the following substantial questions of law:- “1) Whether the judgment and decree passed by the learned District Judge, Chamba who has set aside the well reasoned judgment and decree passed by the learned trial Court is sustainable in the eyes of law? 2) Whether the evidence and statements of PW-1 to PW-4 are not sufficient to prove the fact that the respondents/defendants have illegally demolished the boundary wall around the house and land of the appellant/ plaintiff. 3) Whether the learned appellate Court below has rightly appreciated the documents Exts. PW-2/A and PW-2/B wherein it is clearly established that the respondents /defendants have demolished the wall which has caused financial loss to the appellant/ plaintiff?. 4) Whether the learned appellate Court below has rightly come to the conclusion that the appellant/ plaintiff has not proved the sale deed by which he purchased four biswas of land from respondent/ defendant No.1, specially when Ext.PA jamabandi pertaining to the year 1997-98 showing the ownership of the applicant/appellant stands proved?” During the pendency of the appeal, the appellant moved an application being CMP No.600/2007 under Order 41 Rule 27 CPC seeking to place on record the documents by way of additional evidence. The application is allowed and the documents are taken on record. 7 Ext. PW-2/A & Ext. PW-2/B are the site plan and the estimates prepared by Shri P. K. Gupta (PW-2), with respect to the damage caused due to the demolition of the plaintiff’s wall. Importantly, this witness has not seen the defendants’ demolishing the wall. Hence, it cannot be said that the first Appellate Court has erred in appreciating the said documents. The issue as to whether the plaintiff had purchased the land in terms of sale deed as reflected in jamabandi Ext.PA has been dealt with by the Courts below extensively. The first Appellate Court in para 18 of its judgment, in my considered view erred in holding that the plaintiff had failed to prove that it had not purchased 4 biswas of land comprising out of Khasra No. 492/29. The said document as also the oral testimony of Shri Nihala Ram (PW-1) evidently proved the said fact. Importantly, the trial Court rightly took into account the conduct of the defendants while deciding the question of sale and title of the plaintiff with respect to the suit land. The finding of the first Appellate Court to this extent needs to be reversed. However, that by itself would not entitle the plaintiff to the decree as prayed for. The defendants conduct alone would not be the determining factor as the plaintiff had to stand on his own legs to prove the factum of demolition of the wall by the defendants. To controvert the findings of the first Appellate Court as reproduced hereinabove, Mr. Khidta has invited my attention to the statement of Shri Khiyalia (PW-3), the sale 8 witness on whose testimony the plaintiff’s case rests. There is no other witness who has actually seen the wall being demolished. In my considered view, the statement of this witness does not inspire confidence and by itself cannot be made basis for conclusively holding that the defendants had demolished the wall constructed by the plaintiff. This witness, no doubt in his affidavit filed in examination in chief has deposed that the wall was demolished by the defendants on 3.12.2004, but however, in his cross-examination he has admitted that he is a close relative of the plaintiff and is residing at a distance of a half kilometer from the suit land. No doubt, he possesses land adjoining to the suit land but he has not clearly deposed that at the time of the incident he was present at the site. In fact it is his case that about 11 years ago, the defendants’ son had also demolished the wall and at that time he was at his house. Importantly, he admitted not having disclosed this fact to anyone. It is not the plaintiff’s case that the defendants had been repeatedly breaking the wall. He has also admitted that in and around the suit land there are 5-6 shops and also land belonging to Shri Saroj Kumar. Why no other independent witness was examined to prove the factum of demolition of wall by the defendants, has not been explained by the plaintiff. This witness has also not deposed that the wall was demolished at the time when none else other than him was present. Hence, in the facts and circumstances, it cannot be said that the plaintiff has been able to prove that the defendants 9 had illegally demolished the boundary wall constructed by the plaintiff in and around his house. In my considered view, the first Appellate Court has rightly reversed the judgment and decree passed by the trial Court and dismissed the plaintiff’s suit. For all the aforesaid reasons, I see no reason to interfere and the questions of law are answered accordingly and the appeal is accordingly dismissed/disposed of with the aforesaid observations. October 6, 2009. (Sanjay Karol) (rana) Judge.