IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. S.A. No. 685 of 2001 (Old No. 1325 of 1986) Shyam Lal Tamta .. Defendant/Appellant. Versus Mahesh Chandta Tamta and another .. Plaintiff/ Respondents. Mr. N.S. Negi, Advocate for the appellant. Mr. Nandan Arya, learned counsel for the respondents. UDated: 20-8-2008 UHon’ble B.C. Kandpal, J. This Second Appeal, under Section 100 of the C.P.C., has been preferred against the judgment and decree dated 16-4-1986 passed by Civil Judge, Almora in Civil Appeal No. 26 of 1985, Mahesh Chandra Tamta Vs. Shyam Lal Tamta, arising out against the judgment and decree dated 26-6-85, passed by Munsif Magistrate, Almora, in O.S. No. 50 of 1984, Mahesh Chandra Tamta Vs. Shyam Lal Tamta,. 2- Brief facts of the case are that the plaintiff/respondent filed a suit for permanent injunction against the defendant/appellant Shyam Lal Tamta, restraining him permanently not to dig or make construction over plot Nos. 537 and 538 belonging to the plaintiff/respondent, on the ground that he is the owner and in possession over plots in question and the land in question has no concern with the defendant Shyam Lal, but in the year 1982, he started encroachment over the land in possession of the plaintiff. Thereafter he started digging the land in order to raise construction over the same. The plaintiff Mahesh Chandra Tamta when 2 objected to it, the defendant Shyam Lal did not pay any heed to it, hence the suit. 3- The defendant/appellant filed the written statement denying the plaint allegations and has pleaded that his father had a land plot Nos. 523 and 524 and the factory was situated in plot Nos. 537 and 538. A Sahan was adjacent to the factory pertaining to plot No. 541. It has been pleaded that the land plot Nos. 537 and 538 belong to defendant Shyam Lal and the plaintiff has no concern over the land in question. It has further been pleaded that the suit has been filed on the wrong pleadings and is liable to be dismissed. 4- On the basis of the pleadings of parties, the trial court framed the following issues:- 1-Whether the plaintiff is the sole owner in possession of plot Nos. 537 and 538, as has been alleged in the plaint?. 2- Whether defendant has encroached upon plot Nos. 537 and 538 as per the plaint allegation? If so, its effect?. 3- To what relief the plaintiff is entitled to get?. 4- Whether plot Nos. 537 and 538 are in the exclusive possession of defendant Shyam Lal, as has been pleaded in the W.S.? If so, its effect?. 5- The trial court after considering the entire evidence on record, dismissed the suit vide judgment and decree dated 26-6-1985. 6- Feeling aggrieved by the aforesaid judgment and decree passed by the trial court, the plaintiff preferred the appeal before the Civil Judge, Almora, who 3 vide impugned judgment and decree dated 16-4-1986 allowed the appeal and set aside the judgment and decree passed by the trial court. 7- The defendant, feeling aggrieved by the aforesaid judgment and decree passed by lower Appellate Court, has preferred this second appeal before this Court. 8- At the time of admission of the appeal, the following substantial question of law was formulated:- ‘Because the lower appellate court has erred in law in setting aside the decree of the trial court without considering that Bal Chand respondent no.2 was not made a party in appeal and the decree passed against him by the trial court had become final. The decree passed by the lower appellate court is inconsistent with that of the trial court and is absolutely illegal and perverse.’ 9- Heard Sri N.S. Negi, learned counsel for the appellant and Sri Nandan Arya, learned counsel for the respondent and perused the record. 10- It appears from the perusal of the judgment and decree passed by the lower appellate that the lower appellate court has put a emphasis on paper No. 17-C which is the extract of Khasra Amin filed by the plaintiff/respondent before the lower appellate court. The order sheet of the file of lower appellate court shows that this document was filed by plaintiff/respondent before the lower appellate court on 31-3-1986. The order sheet reveals that the plaintiff/respondent made an endorsement over the same that they have no objection 4 on the paper No. 17-C, as they did not intend to file any paper in rebuttal of the same. The lower appellate court has recorded a categorical finding that the name of Mahesh Chandra S/o Gauri Ram finds place in the extract Khasra Amin ( paper No. 17-C). This document therefore makes the picture quite clear that the plaintiff/respondent Mahesh Chandra is in possession over the land in question since long. It is true that this paper was not filed by the plaintiff/respondent before the trial court, but since the paper was filed before the lower appellate court, and the said paper was not rebutted by the defendant Shyam Lal before the lower appellate court itself, then the lower appellate court by placing the reliance on the said document has committed no error. 11- The learned counsel for the appellant has further submitted that the lower appellate court has placed the reliance on paper No. 23-C, which the commissioner report and this report was rejected by the trial court itself vide order dated 18-10-1984. The trial court on the same day appointed another commissioner to submit the report, who submitted his report paper No. 30-C/2 along with map 32-C on 22.10.84. It is to be mentioned here that against the commissioner report 30-C/32-C no objection was filed by the defendant/appellant before the trial court. It is true that the lower appellate court has put an unnecessary emphasis on paper No. 23-C/24-C filed by the previous commissioner, which was rejected by the trial court, but the subsequent commissioner filed his report paper No. 30-C/2 and map 32-C, which was allowed by the trial court on 13.2.1985. The Commissioner report 30-C/32- C again indicates that some construction appears over plot Nos. 537 and 538 by digging the land. Therefore, this 5 commissioner report 30-C/32-C, which has been confirmed by the trial court, again supports the case of the plaintiff/respondent Mahesh Chandra. The lower appellate court has recorded a categorical finding that plot No. 537 is a Khandhar while plot No. 538 is an agricultural land and some vegetable was sown by the plaintiff/respondent over the same who is in possession over plot Nos. 537 and 538. The lower appellate court although has wrongly relied on the commissioner report paper No. 23-C and 24-C, but even then I am of the view that the subsequent commissioner report which is paper No. 30-C/32-C, also supports the case of the plaintiff/respondent. The mistake committed by the lower appellate court is not such which can be said that this mistake has gone to the root of the case and has effected the case of the plaintiff/respondent in any manner. The trial court has also not considered the commissioner report 30-C/32-C while dismissing the suit of the plaintiff/respondent. Had the trial court considered the report of the commissioner paper No. 30-C/32-C, I think that there was no scope with the trial court to dismiss the suit of the plaintiff/respondent on the basis of the aforesaid commissioner report. The matter cannot be remanded simply on the ground that the lower appellate court has placed an emphasis on the document 23- C/24-C, the earlier report of the commissioner, which was cancelled by the trial court, specially under the circumstance that the subsequent commissioner report is available on the record, which supports and establishes the case of the plaintiff/respondent. The substantial question of law framed in this appeal is decided against the defendant/appellant. 12- For the reasons stated above, I am of the view that the present second appeal is concluded by the 6 finding of facts and I do not find any ground to interfere in the judgment and decree passed by the lower appellate court. 13- The appeal is accordingly dismissed. 14- The interim stay, if any, shall stand vacated. (B.C. Kandpal, J.) ISB 7