Budh Ram v. Jaggi Singh

respondent-plaintiff (hereinafter to be referred as “the plaintiff”) filed the present suit seeking a decree for mandatory injunction for removal of encroachment made by Budh Ram son of Bihari Lal appellant-defendant (hereinafter to be referred as “the defendant”) over the common path in question. The parties were co-owners and in joint possession to the extent of 1/3rd share of their agricultural land. They got their land partitioned and land measuring 6 marlas was left as common passage, denominated by letters ABCD for out-gress and ingress to their fields/houses. The plaintiff claimed that the defendant has made illegal encroachment by raising construction of his residential house over the common passage.

2. Levelling a variety of allegations, in all, according to the plaintiff that the passage in question is a common passage and the defendant has encroached upon it by raising construction of his residential house without any legal basis. The plaintiff repeatedly asked the defendant to remove the encroachment, but in vain, which necessitated him to file the present suit. On the basis of the aforesaid pleadings, the plaintiff filed the suit for mandatory injunction against the defendant, in the manner stated here-in-above. Regular Second Appeal No.869 of 2009 2

3. The defendant contested the suit and filed the written statement, inter-alia, taking certain preliminary objections of, maintainability of the suit, locus standi and cause of action of the plaintiff etc. On merits, the case set up by the defendant, in brief, in so far as relevant, was that the passage in question is still in existence and the same is being used by all the co-sharers for out-gress and ingress to their houses. The defendant was claimed to have constructed his residential house over his own land about 20 years back. Concisely, according to him, the common passage is still in existence and he has constructed his residential house on his own land. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

4. In the wake of the pleadings of the parties, the trial Court framed the essential issues for adjudication of the case.

5. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective pleas.

6. The trial Court, after taking into consideration the entire evidence on record, decreed the suit of the plaintiff and directed the defendant to remove the encroachment made by him over the common passage in question, vide impugned judgment and decree dated 11.8.2008.

7. Aggrieved by the judgment and decree of the trial Court, the appellant-defendant filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 22.10.2008.

8. The appellant (defendant) still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal.

9. After hearing the learned counsel for the parties, going through the record with their valuable help and considering the matter deeply, to me, there is no merit in the appeal. Regular Second Appeal No.869 of 2009 3

10. However, the main argument of the learned counsel for the appellant- defendant that the Courts below erred in accepting the demarcation report dated

12.11.1999 (Ex.PW2/C) and wrongly decreed the suit of the plaintiff, is neither tenable, nor the observations of this Court in case Jage and Jugti v. Amar Singh and others, 1979 P.L.J. 24, would come to his rescue in this regard, which are as under (para 4): - “The learned counsel for the respondents then contended that the report of the Local Commissioner would not be relevant piece of evidence under any of the provisions of the Evidence Act. I am unable to agree with the contention of the learned counsel. In Sarat Chandra Rakhit v. Sarala Bala Ghosh and others, A.I.R. 1928 Calcutta 63 (a Division Bench Authority) it was held that although a report and a map prepared by the Commissioner can be taken into evidence only in the suit in which he made the inquiry, yet they can be admitted in evidence in another suit under the Evidence Act on being proved by the person who made them. A similar view was taken in Ibrahim Beg v. Mt.Aziman and another, A.I.R. 1936 Oudh 92. Respectfully, following these judgments, I hold that the report of the Local Commissioner, Exhibit P- 2, was a relevant piece of evidence and had been rightly admitted into evidence by the trial Court having been proved by the Local Commissioner.” Meaning thereby, the aforesaid observations, rather advanced the case of the plaintiff that the demarcation report (Ex.PW2/C) is relevant to decide the real controversy between the parties.

11. The next feeble argument that since Lal Chand, Kanungo (Girdawar), who had conducted the demarcation of the common passage, was not examined, so, the demarcation report (Ex.PW2/C) is not legally proved, is not only devoid of merit but misplaced as well. It is not a matter of dispute that Lal Chand, Kanungo, who made the demarcation of the disputed passage and prepared his report (Ex.PW2/C), has already expired, (mentioned in para 11 in the judgment of Regular Second Appeal No.869 of 2009 4 the first appellate court). Above being the position, the plaintiff has examined PW2 Shyam Lal, Record Keeper, who has maintained on oath, on the basis of the summoned official record, that in the wake of application (Ex.PW2/A) for demarcation filed by the plaintiff, the Revenue Officer passed the order of demarcation dated 5.11.1999 (Ex.PW2/B). PW2 proved the notice (Ex.PW2/D) to the parties from the original record in this connection. In pursuance of the order, the demarcation was conducted by Lal Chand (since deceased) Girdawar, in the presence of the parties and he submitted his report (Ex.PW2/C) in discharge of his official duty.

12. Not only that, the defendant, while appearing as DW1, has himself categorically admitted that Lal Chand, Girdawar carried out the demarcation in his presence, but he did not file any objection to his report in this regard. So much so, counsel for the defendant also did not raise any objection at the time of admission of the demarcation report (Ex.PW2/C) in the wake of statement of Shyam Lal PW2. DW2 also admitted the factum of demarcation report. Therefore, under these circumstances, it cannot possibly be saith that the demarcation report (Ex.PW2/C) is not proved, as urged on behalf of the defendant. Thus, the contrary arguments of the learned counsel “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances.

13. Thus, the Courts below have rightly placed reliance on the evidence brought on record by the plaintiff coupled with the demarcation report (Ex.PW2/C) and rightly came to the conclusion that the defendant has encroached upon two marlas of land by raising construction over the common passage in dispute of the parties, specially when the defendant has admitted the existence of common passage.

14. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, in this relevant connection, have already been duly considered and dealt with by the Courts below. Regular Second Appeal No.869 of 2009 5

15. There is another aspect of the matter which can be viewed from a different angle, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that the defendant has admitted the existence of common passage in dispute and he is proved to have encroached upon two marlas of land of the same. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard.

16. Meaning thereby, the entire case revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case.

17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

18. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) Judge

14.7.2010 AS