HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 388 of 2001 Decided on: 8.3.2011 Gopinder Singh ……Appellant. Versus Chet Ram ………Respondent Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the appellant: Mr. Ajay M.Goel, Advocate For the respondent: Mr.Neeraj Gupta and Mr.Janinder Mittal, Advocates. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellant against the judgment and decree passed by the learned District Judge, Kullu, dated 5.5.2001, dismissing the appeal of the appellant and affirming the judgment and decree passed by the learned Senior Sub Judge, Kullu, dated 29.5.2000, whereby the suit of the appellant for permanent prohibitory injunction was dismissed. 2. Briefly stated, the facts of the case are that the appellant, hereinafter also referred to as the plaintiff, filed a suit for permanent prohibitory injunction as against the respondent, hereinafter also referred to as the defendant. It was alleged by the plaintiff that he and his sister are recorded as owners in possession of Gair Mumkin Gharat measuring 0-2 biswas, in Khasra No.2166. There is another Gharat standing on the land measuring 0-1 biswa contained in Khasra No.1953, in which also the plaintiff is a co-sharer. It was - 2 - alleged that the land measuring 0-6 biswas contained in Khasra No.1954, hereinafter also referred to as the suit land, is recorded as Gair Mumkin Kuhal and is recorded in the ownership of provincial government and in possession of the plaintiff to the extent of 1/2 share. It was alleged that this Kuhal was feeding to the aforesaid two Gharats. It was further alleged that the father of the plaintiff Shri Mela Ram had also constructed another slate roofed Gharat on a portion of the suit land, which is recorded as Kuhal. After the death of his father, the plaintiff came in possession of the Gharat in the suit land shown by site plan ABCD. It was also alleged that the main source of the Kuhal was Sarwari Khad, but due to continuous floods, the water of the said Kuhal was obstructed and the plaintiff stopped using the Gharat and locked the same by keeping wooden planks and the equipments of the Gharat. It was further alleged that the defendant has no concern with the suit property and the plaintiff on 21.12.1996 found that the lock of the Gharat has been broken by the defendant, who has stolen the wooden planks for which a complaint was lodged with the police and the defendant had started damaging the said Gharat and the Kuhal, hence the suit for injunction filed for restraining the defendant from raising any sort of construction in the Kuhal. 3. Defendant admitted that the plaintiff and his sisters are recorded as owners in possession of the Gharat in Khasra No.2166 as well as in Khasra No.1953. It was also admitted that the suit land is recorded as Gair Mumkin Kuhal, but the plaintiff was not in possession over the suit land since the Public Works Department of the Government has constructed National Highway over the same and no Kuhal is in existence at the spot. It was also pleaded that no Gharat is in existence and the plaintiff was never in possession, nor the Kuhal - 3 - had been washed away in any flood but National Highway had been constructed over the same. Thus, the plaintiff is not entitled to the relief claimed by him. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP 2. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment decided issue No.1 as against the plaintiff and in favour of the defendant and consequently dismissed the suit of the plaintiff. On appeal, those findings were upheld by the learned District Judge. Hence the present appeal field by the appellant. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The appeal has been admitted on the following substantial question of law: “Whether both the Courts below have misread and mis-appreciated the oral as well as documentary evidence on record, more specifically the documents Exts.PA to PC and PW-1/A in dismissing the suit of the plaintiff-appellant?” 8. The submissions made by the learned counsel for the appellant were that there has been misreading of the oral as well as documentary evidence Exts.PA to PC and PW-1/A and as such the findings to the contrary are liable to be set aside. On the other hand, the learned counsel for the respondent had supported the impugned judgments for the reasons recorded therein. 9. The plaintiff had alleged in the plaint that there was a Kuhal in the disputed Khasra number and the Gharat was constructed by his father in this - 4 - Khasra number. In his statement as PW-2, the plaintiff Gopinder Singh denied that the defendant’s father was living in the adjoining portion on which a Gharat exists in Khasra No.1955. However, the plaintiff denied that Khasra No.1954 is not in existence and national highway has been constructed thereon. However, he admitted that there is no Kuhal in existence. He admitted that the Gharat was in existence in the adjoining Khasra No.1953, which was washed away and a Gharat was constructed in Khasra No.1954 (suit land) and Khasra No.1953 is lying vacant. He admitted that locks were not broken in his presence. 10. The learned trial Court has observed that the statement of the plaintiff that his father had constructed the Gharat in the disputed Khasra Number has not been substantiated from the copy of the Jamabandi Ext.PA for the year 1991-92 since the land is recorded as Gair Mumkin Kuhal only. The report lodged to the police was also not proved by the plaintiff. It was also observed by the learned trial Court that the assessment register, copy of which was Ext.PW-1/A, has not been proved to be pertaining to the disputed Khasra No.1954 and PW-1 Ram Chand has admitted that he cannot say that it pertains to the suit land. Thus the learned trial Court had observed that the plaintiff had failed to prove that a Gharat was constructed by his father on the disputed Khasra Number, as alleged, in the year 1996 and that the defendant had broken the lock of the Gharat and removed the wooden planks etc. Thus, there are findings of the learned trial Court that the plaintiff had failed to prove the existence of the disputed Gharat on Khasra No.1954. Those findings were affirmed by the learned First Appellate Court by referring to the documentary evidence including the assessment register Ext.PW-1/A, Aks Musabi Ext.PB & Ext.PC, and copy of Jamabandi Ext.PA, referred to above. - 5 - 11. On appraisal of oral as well as documentary evidence led by the parties, it is clear that there is due discussion of the evidence and the learned trial Court as well as the learned First Appellate Court have not mis-appreciated the oral as well as documentary evidence placed on record. Once the fact was not proved that a Gharat was constructed over the disputed Khasra number and the plaintiff has also failed to prove that there is any Kuhal at the spot, therefore, he was rightly held not entitled to the relief of injunction claimed by him. Therefore, the findings of the learned Courts below do not call for any interference by reappraisal of evidence, to which a reference has been made above. 12. In view of above discussions, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. However, the parties are left to bear their own costs. March 8, 2011. (V.K. Ahuja), (tilak) Judge.