IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA 199 of 2001 Date of Decision 10th May ,2011 ________________________________________________________ H.P. Housing Board ….Appellant. Versus Joginder Pal Singh & another ….Respondents. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No ________________________________________________________ For the Appellant: Mr. J.R. Thakur, Advocate. For the Respondents: Mr. Sanjeev Kuthiala, Advocate. ______________________________________________________________ Dev Darshan Sud, J (oral) The plaintiff is aggrieved by the concurrent findings of the two Courts below dismissing his suit for permanent prohibitory injunction as also for the mandatory injunction as filed by the appellant. The plaintiff had pleaded that the defendants-respondents herein had violated the terms and conditions of the Hire Purchase Tenancy Agreement and therefore, the plaintiff was entitled for mandatory injunction by removing the construction raised by the respondents against the terms of allotment. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 2. On the pleadings of the parties, learned trial Court settled eight issues. Issue Nos. 1, 2, and 3 were crucial and primary to the decision of the case and related to the fact as to whether the defendants have violated the terms and conditions of the Hire Purchase Tenancy Agreement and whether the sale was subject to the terms and conditions. Learned trial Court, on the evidence on record, held on the question of construction being raised in violation of the terms of the agreement that the witnesses of the plaintiff, more especially PW4 Harbans Lal Executive Engineer had denied that he had visited the spot. Witnesses of the plaintiff had themselves stated that they did not visit the spot when the construction was being carried out and more importantly the plaintiff did not prove that the defendants have raised construction in contravention of the terms and conditions of the approved plan. 3. These findings have been re-affirmed by the learned Appellate Court which holds that evidence of the plaintiff does not establish whether the defendants were present when the site was inspected. Even the date, when the document purported to show the encroachment were prepared, could not be ascertained from the evidence of the plaintiff. One of the witnesses of the plaintiff Shri K.K. Sood, PW2, had visited the spot when the construction was complete and no notice was given to the defendants. The learned Appellate Court held that the appellant had slept over the matter and re-affirmed the findings of the learned trial Court. 5. This appeal was admitted by this Court on 10.5.2001 on the following substantial question of law: 3 Whether the Courts below after holding that the respondents had raised unauthorised construction over the land in dispute can still refuse to grant a decree for mandatory injunction in the facts and circumstances of the case? 6. I have heard learned counsel appearing for the parties and have gone through the record of the case. 7. The findings of fact arrived at by two Courts below cannot be upset in this appeal. The fact as to whether there was unauthorised construction or not cannot be disturbed in the second appeal, more especially, when the evidence of the plaintiff witnesses does not establish the facts urged for consideration for grant of this relief. I also do not find any perversity in the appreciation of evidence by the two Courts below and in these circumstances, I hold that the question as raised for consideration does not arise for determination. This appeal is accordingly dismissed. May 10th, 2011 (Dev Darshan Sud), ms Judge 4