IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal Nos.327 of 1997 & 61 of 1998. Judgment Reserved on: 21.10.2009. Date of decision: 24.11.2009. 1. RSA No.327 of 1997. Shri Raj Mal Rajpoot …Appellant Versus Smt.Raj Kumari ….Respondent 2. RSA No.61 of 1998. Shri Raj Mal Rajpoot ….Appellant Versus Smt.Raj Kumari ….Respondent. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.Bhupender Gupta, Senior Advocate, with Ms.Charu Gupta, Advocate. For the Respondent: Mr.Ajay Kumar, Advocate. Dev Darshan Sud,J. These appeals have been preferred by the plaintiff against the judgment and decree of the learned District Judge affirming the decree of the learned Sub Judge Ist Class-(3), Shimla, dismissing the suit instituted by the plaintiff-appellant. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Two cases; Civil Suit No.157/1 of 89, titled: Shri Rajmal Rajput vs. Smt.Raj Kumari and Civil Suit No.135/1 of 90, titled: Smt.Raj Kumari vs. Shri Rajmal Rajput, were consolidated and tried together by the learned Sub Judge Ist Class-(3), Shimla. The appellant- plaintiff herein, prayed for a decree of permanent prohibitory injunction against the defendant Smt.Raj Kumari, whereas in the other suit instituted by her she prayed for a decree of permanent prohibitory injunction against the plaintiff herein. The case pleaded by the plaintiff was that he is the owner in possession of land comprised in Khasra No.241/111, measuring 19 bighas, Khata No.33, Khatauni No.42, situated at Phagli, Shimla, and has constructed a residential house over it. He had covered 6/7 biswas of land under his construction and there was 12/13 biswas of land which was vacant. Adjoining to this land is the land/property of the defendant measuring 15 bighas on which there already existed residential house. The plaintiff pleaded that he was in the Indian Army and was posted outside Shimla. Taking advantage of his absence, the defendant started raising construction by encroaching upon the land and obtained permission from the Municipal Corporation, Shimla and the Town and Country Planning on the basis of some forged documents. The plaintiff requested the defendant to confine the construction to her land, but instead, she raised construction over an area of 4ft. x 6 ft. on 3 the land of the plaintiff. During the pendency of the suit, she also constructed a WC and Bathroom over land comprised in Khasra No.241/111 and placed a water tank over the land which obviously did not belong to her. The plaintiff prayed for a mandatory injunction calling upon the defendant to remove this construction from his land. The suit was contested by the respondent who pleaded that construction was made on land comprised in Khasra No.255/112, measuring 13 bighas on which there already stood a double storeyed building. The allegations regarding forgery etc. were denied by the defendant. In the suit instituted by her, the defendant pleaded that the plaintiff herein was illegally interfering in her land and possession and therefore a permanent prohibitory injunction be issued prohibiting and restraining him from trespassing on her land or causing any hindrance in the peaceful use and occupation thereof. In the suit instituted by the plaintiff, two crucial issues settled were whether the plaintiff- appellant herein were entitled to a permanent prohibitory injunction and the second whether mandatory injunction could be granted to him on the basis of the encroachments as alleged. In the suit instituted by the defendant, the first issue was as to whether the plaintiff (respondent herein) was entitled to the relief of permanent prohibitory injunction. 4 On the conspectus of the evidence and material on record, the learned trial Court held the two issues framed in the suit filed by him against him dismissing the suit and granted the relief of permanent prohibitory injunction to the respondent-defendant in the suit preferred by her. Two appeals were instituted by the plaintiff against the judgment and decree and both these appeals are being disposed of together by this common judgment. In RSA No.327 of 1997, the appellant challenges the dismissal of the suit and in RSA No.61 of 1998, the plaintiff-defendant challenges the grant of decree of permanent prohibitory injunction in favour of her. In arriving at the conclusion that the suit of the plaintiff deserves dismissal, the learned trial Court took into consideration the evidence of PW-1, Rajmal Rajput, who reiterated the allegations made in the plaint alleging further that 10 biswansis of land were encroached by the defendant. However, in his cross-examination, he admitted that the demarcation report Ex.DW-9/N was prepared in his presence and he never objected to this report. Plaintiff appeared as PW-1 and has examined Shri Kishori Lal, Naib Tehsildar, Shimla as PW-2. The plaintiff placed reliance on the evidence i.e. the report prepared by Shri S.P. Kapoor Ex.PW-4/A and the spot map Ex.PW-4/B to prove that there was encroachment. The respondent produced in evidence 5 the witnesses namely; DW-1 Ramesh Banta, Shri M.P. Sharma DW-2, Shri Vinod Sharma DW-3 and Brij Lal DW-4, who were tenants in the building, and DW-7 Shri Surjit Singh, Architect. The learned trial Court on consideration of the entire evidence found that there was no evidence on the record to show that the construction of the latrine block as well as stair case was raised by the respondent by encroaching upon the land as well as during the pendency of Civil Suit filed by him. The suit was dismissed. On the suit instituted by the appellant, the learned trial Court found that the plaintiff-appellant herein was interfering with the possession of the respondent and granted the decree for permanent prohibitory injunction, as prayed for. During the pendency of the appeals, the plaintiff/appellant filed an application under Order 41 Rule 27 read with Section 151 and Order 26 Rule 9 of the Code of Civil Procedure for appointment of a Local Commissioner so that the spot may be inspected and the report may be called as to whether there was any unauthorized construction made by the appellant. The first appellate Court dismissed both the appeals holding that according to two reports Ex.DW-1/N and Ex.P-1, which are demarcation reports there is an encroachment of 10 biswansis of land but such construction has not been made by the plaintiff herein but already existed before the plaintiff purchased the land bearing Khasra No.255/112. The learned appellate Court held in clear, 6 unequivocal and no uncertain terms that no encroachment had been made by the respondent herein. On the question of evidence, the learned Court held that:- “There is no evidence worth acceptable on record suggesting that the respondent while making the addition/alterations in the existing structure over her land has extended the cantilever over the land of the appellant as claimed in the plaint and also constructed her latrine block over the land beneath such cantilever belonging to the appellant”. This conclusion was arrived at by the learned Court after consideration of the entire evidence on the record. These findings were fortified by the evidence of DW-6 Shri G.K. Sharma, Junior Engineer, Municipal Corporation, Shimla who proved Ex.DW-1/E to Ex.DW-1/H and prepared the report Ex.DW-6/A after visiting the spot holding therein that the defendant had not raised any construction whatsoever. On the other evidence of the defendant, the learned appellate Court holds that all the witnesses have corroborated each other in stating that the construction already existed on the spot. The appeal of the plaintiff-appellant, therefore, was dismissed and the suit of the respondent-defendant decreed. An application under Order 14 Rule 5 and Order 41 Rule 25 read with Section 151 of the Code of 7 Civil Procedure was filed by the appellant praying that additional issues be framed and the case be remanded for trial to the District Judge. The learned Court holds that the issues sought were already covered under issue Nos.1 and 2 and therefore, there is no need for framing other issues. On application under Order 41 Rule 27 and Order 26 Rule 9 of the Code of Civil Procedure the learned Courts holds that the material on record itself was sufficient for decision in the case and therefore, the prayer for additional evidence was also rejected. These appeals were admitted on the following substantial questions of law:- “1. Whether the learned Lower Appellate court has committed grave procedural error in rejecting the application filed by the Plaintiff-appellant under Order 41 Rule 27 and Order 26 Rule 9 of the Code of Civil Procedure for appointment of Local Commissioner to inspect the spot, as well as the application under Order 14 Rule 5 and Order 41 Rule 25 of the Code of Civil Procedure for framing additional issues? Whether the mechanical disposal of such applications has effected the Plaintiff-appellant? 2. Whether the courts below have further committed procedural illegality in framing different issues in two different suits and 8 thereafter ordering consolidation without reframing the correct and proper issues covering the entire controversy between the parties? 3. Whether the learned Lower Appellate Court has failed to properly appreciate the true import of the Judgment of this Hon’ble Court passed in Criminal Revision No.141/94 along with the fact that defendant-respondent has forged the tatima so as to obtain the sanction of the plans from the concerned authorities, could the documents Exhibits DW-1/C to I/H be relied upon to hold the construction raised by the defendant-respondent to be in accordance with law? 4. Whether the courts below have erred in considering the claim of the defendant-respondent qua the common passage/passage without there being appropriate pleadings in accordance with law or the evidence covering the case under any provisions of Easement Act? 5. Whether the courts below have misunderstood the import of photographs Exhibits PX-1 to Exhibit PX-3 and ignoring the statement of PW-2 and further misinterpreting exhibit PW-1 and PW-3 in dismissing the suit of the plaintiff-appellant? 9 6. Whether the courts below were erred in consolidating both the suits when the reliefs claimed in were totally different and the controversy was entirely different, was it not incumbent on the court below to have s tayed the subsequent suit filed by the defendant-respondent, has not such illegal procedure vitiated the Judgment and Decrees passed by both the learned Courts below? 7. Whether the courts below have wrongly rejected the report proved by PW-1 Shri S.P. Kapoor, Exhibits PW-4/A and Exhibit PW-4/B proving the encroachment on the land of the plaintiff-appellant? 8. Whether the courts below have committed grave error in placing undue reliance on Exhibit PW-9/N which was inadmissible in evidence and not proved in accordance with law, are not the Judgment and Decrees of the courts below which are passed on such documents vitiated? Question No.1: The grievance made out by the appellant is that the applications under Order 41 Rule 27 and Order 26 Rule 9, Order 14 Rule 5 and Order 41 Rule 25 were wrongly dismissed by the learned trial Court. I cannot 10 persuade myself to accept this contention of the learned Senior Counsel appearing for the appellant. From the record, in Civil Appeal No.23-S/13 of 96/93, I find that an application under Order 41 Rule 27 was filed on 18.9.1993 in which a prayer was made for demarcation of the land, another application was filed on 4.8.1995 again calling for demarcation to ascertain the position of encroachment. A combined application under Order 41 Rule 27 read with Order 26 Rule 9 was filed calling for inspection of the spot. Applications under Order 14 Rule 5 and Order 41 Rule 25 were also filed praying for framing of three additional issues after the institution of the suit i.e. whether the defendant had started construction of the stairs over the land of the plaintiff, whether the defendant had a right of passage over the land comprised in Khasra No.241/111 and whether the defendant had started discharging water over the land of the plaintiff? If these applications are read in totality, I find that the appellant-plaintiff herein has left no ground unturned to rake up a new trial denovo at the appellate stage. So far as the law governing Order 41 Rule 27 is concerned, it is by now well settled in Badi Ram vs. M/s.R.S. Company, AIR 2002 HP 150. This Court relying interalia upon the decision of a Constitutional Bench of the Supreme Court in K.Venkataramiah vs. A.Seetharama Reddy, AIR 1963 SC 1526 has held that Court can allow additional evidence at the appellate stage in case there is some obscurity etc. 11 Both the Courts below, after going through the record and looking into the evidence/documents on record clearly concluded that the plaintiff has made no encroachment which requires to be removed. Under Order 26 Rule 9 it is by now well settled that it is the requirement of the Court and not of the plaintiff or the parties to the suit which necessitates a local inspection. This exercise can be undertaken by the Court suo motu also. (See: Bali Ram vs. Mela Ram and another, AIR 2003 HP 87). The learned appellate Court has rightly rejected these two applications as it found no obscurity in the facts or necessity for appointment of a Local Commissioner as the evidence on record was sufficient to establish the conclusions arrived at. So far as application under Order 14 Rule 5 and Order 41 Rule 25 praying for remand is concerned, is not a matter of right for the parties. All issues are framed and settled in the presence of the parties on their pleadings. Having found that the judgment of the trial Court has gone against him, the appellant herein has sought a retrial of the entire case which cannot be permitted. So far as additional issues are concerned, both the parties were alive to the controversy and have led evidence on the point. The appellant seeks a retrial which cannot be permitted. This question is, therefore, decided against the appellant. 12 Questions No.2 & 6: These questions will not arise for determination at all as the suits have been consolidated and tried together by the learned trial Court on a statement having been made by learned counsel appearing for the appellant on 17.12.1990. The statement reads:- “Vyan kiya ki dava Rajkumari vs. Rajmal Case No.135-1-90 ka us dava ke sath consolidate karne mein koi aitraj na hai tatha is me likhi gai gawahi adalat us case ke faisla mein bhi pari jaye” These questions are also decided against the plaintiff. Question No.3: The judgment of the criminal case does not bind the Civil Court. I do not find anything on the record to show or establish any forgery or fabrication. Tampering with the record is indeed a serious matter but at the same time such allegations are easier made than substantiated. This question is also decided against the appellant. Question No.4: From the evidence on record, the Court found that the defendant was entitled to a passage on a part of the land. This conclusion has been reached at by both the Courts below on review of the entire evidence on record. In the suit instituted by the respondent, 13 the Court clearly concluded that the plaintiff was interfering in the user of passage and has rightly decreed the suit. This question is also, therefore, decided against the appellant. Question No.5: Interpretation of photographs Exhibits PX-1 to Exhibit PX-3 as also the evidence is a question of fact. There has to be perversity in its appreciation and application for reaching at a conclusion. Merely because a different conclusion can be reached or may be reached by this Court on the same set of facts, is no ground to set aside the judgments of both the Courts below. In second appeal barring perversity, there is no other ground on which this Court can interfere on facts. On going through the evidence of PW-2 and PW-3, I do not find that it establishes the case of the plaintiff. The photographs do not establish that there is any encroachment or that it has in fact been made by the respondent. So far as the evidence of PW-4 is concerned, all that need to state is that his evidence has been rightly appreciated by the learned Court below. This question is also decided against the appellant. Question No.7: Ex.PW-4/A and Ex.PW-4/B do not prove any encroachment on the spot. The report prepared by PW-1, Shri S.P. Kapoor, is vague and does not associate the respondent at the time when this report was prepared. 14 This question is also, therefore, decided against the appellant. Question No.8: I do not find anything from the record which shows that Ex.PW-9/N was not properly considered and appreciated in evidence. Both these appeals are accordingly dismissed with costs throughout. November 24, 2009. (Dev Darshan Sud) (aks) Judge.