The High Court disposed of a regular second appeal. The court held that the concurrent findings of fact by lower courts regarding land encroachment and the validity of the demarcation report were not perverse. The appeal was dismissed as it lacked merit.
The instant appeal is dismissed. Pending miscellaneous applications are disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 402 of 2011 Reserved on: 16.03.2023 Decided on: 05.04.2023 __________________________________________________ Dev Raj & Ors. …..Appellants Versus Kaila (deceased) through LRs. ..…Respondents ___________________________________________________
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge
1 Whether approved for reporting?
| ______________________ For the appellants : |
______________________________ Mr. Bimal Gupta, Sr. Advocate with Ms. Kusum Chaudhary, Advocate. |
|---|---|
| For the respondents : | Mr. Yogesh Kumar Chandel, Advocate. |
Sushil Kukreja, Judge
The instant regular second appeal has been maintained by the appellants, who were the defendants before the learned trial Court (hereinafter referred to as “ the defendants”), laying challenge to the judgment and decree, dated 11.07.2011, passed by learned District Judge, Mandi, District Mandi, H.P., in Civil Appeal No. 20 of 2010, whereby the appeal filed by the defendants against the judgment and decree dated 16.01.2010,
passed by learned Civil Judge (Sr. Division), Court No. 1, Sunder
1 Whether reporters of Local Papers may be allowed to see the judgment?
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Nagar, District Mandi, H.P., was affirmed, wherein the suit filed by the respondent, who was the plaintiff before the learned trial Court (hereinafter referred to as “the plaintiff”), was decreed.
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mandatory injunction may be passed in his favour directing the defendants to deliver the possession of the suit land by demolishing the construction.
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alternative for the mandatory injunction, as prayed for? OPP
2. Whether the suit of the plaintiff is not maintainable in the present form? OPD
3. Relief.”
“(1) Whether impugned judgments and decrees passed by both the Courts below are based upon misreading, misinterpreting and misconstruing the pleadings and evidence on record and are in fact contrary to the material on record and are totally perverse.?
(2) Whether the decree for mandatory injunction could be granted solely on the basis of demarcation report Ext. PW-3/A, Ext. PW-3/B and in the absence of pleadings to that effect and any evidence like Ext. PW-3/A and Ext. PW-3/B in the present case which is in direct variation of pleadings can be looked into and relied upon while passing the decree by the Courts below”
contended that the learned Courts below have failed to appreciate
the fact that there is not even an iota of evidence on record that the
alleged encroachment was made during the pendency of the suit.
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He has further contended that both the learned Courts below have erroneously relied upon the report of local commissioner, Ext. PW3/A, as the demarcation was not carried out in accordance with the rules and procedure as well as the instructions issued by the Financial Commissioner, as such, the impugned judgment and decree, passed by the learned trial Court and affirmed by the learned first Appellate Court are liable to be set aside.
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appellate Court is one on law, or on mixed question of law and fact,
the High Court can certainly examine its correctness, but if it is purely one of fact, the jurisdiction of the High Court would be barred unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse. In C. Doddanarayana Reddy and Others Vs. Jayarama Reddy and Others , AIR 2020 Supreme Court 1912, it has been held that Interference with the concurrent findings of the courts below by the High Courts under Section 100 CPC must be avoided unless warranted by compelling reasons . Relevant portion of the aforesaid judgment reads as under:-
“25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board v. Anjuman-E-Ismail Madris-Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:
“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392) : (AIR 1996 SC 3021), this Court held:
"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the
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High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."
14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166) : (AIR 1996 SC 3521), this Court held :
"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to re- place the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."
“14. Undoubtedly, the jurisdiction which a High Court derives under Section 100 is based upon its framing of a substantial question of law. As a matter of law, it is axiomatic that the findings of the first appellate court are final. However, the rule that sans a substantial question of law, the High Courts cannot interfere with findings of the lower Court or concurrent findings of fact, is subject to two important
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caveats. The first is that, if the findings of fact are palpably perverse or outrage the conscience of the court; in other words, it flies on the face of logic that given the facts on the record, interference would be justified. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103 CPC.”
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Khatauni No. 223/256 min, Khasra No. 1423, measuring 0-10-15 bighas situated in Muhal Dharanda, Tehsil Sunder Nagar, District Mandi, H.P. and out of this land, he had sold Khasra No. 1423/1, measuring 0-2-2 bighas to the defendants and he retained the rest of the land bearing Khasra No. 1423/2, measuring 0-8-13 bighas. The demarcation report, Ext. PW-3/A issued by the Tehsildar, who was appointed as Local Commissioner by the Court clearly reveals that old Khasra No. 1423 and new Khasra No. 1629/1423 and 1630/1423 kita-2 were demarcated. It has come in the demarcation report that the plaintiff had sold Khasra No. 1629/1423, measuring 0-2-2 bighas to the defendants and they have encroached the land belonging to the plaintiff bearing Khasra No. 1630/1423/1, measuring 0-1-19 bighas by constructing a shop thereon. The aforesaid demarcation report has never been challanged by the defendants at any point of time and no objections to the same have been filed.
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gone beyond the terms of reference, for which, he was appointed by the Court. He further contended that while carrying out the demarcation, local commissioner has not associated the owners of the adjacent land, as such, demarcation cannot be said to be in accordance with the instructions issued by the Financial Commissioner. In 2000(1) Shimla Law Cases 192, Kamal Dev and another Vs. Hans Raj , it has been held that once instruction No. 1 which is contained in Chapter I-M of the Rules and Orders of the Punjab High Court Vol. I., as applicable to the state of Himachal Pradesh , is duly complied with, the fault found in compliance of other instructions will not vitiate demarcation proceedings as a whole. Relevant portion of the aforesaid judgment reads as under:-
“ 12. The answer to all the aforesaid questions depends on the interpretation of instructions and guidelines issued by the Financial Commissioner. Punjab in exercise of the powers under Section 100 of the Punjab Land Revenue Act (corresponding to Section 106 of the H.P. Land Revenue Act). These Instructions form part of the Rules and Orders of the Punjab High Court Vol. I. It is not disputed that Vol. 1 of the said Rules and Orders has in its application been adopted in Himachal Pradesh also. The instructions which are now contained in Chapter I-M of the said Rules and Orders reads as follows :
"I. If a boundary is in dispute the Field Kanungo should relay it from the village map prepared at the last settlement. If there is a map which has been made on the square system he should reconstruct the square in which the disputed land lies. He should mark on the ground on the lines of the
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squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares, he should with his scale read on the map the position and distance of those points from line of a square and then with a chain and cross staff mark put the position and distance of those points. Thus, he can set out all the points and boundaries which are shown in the map. But if there is not a map on the square system available, he should then find three points on different sides of the place in dispute as near to it as he can, and, if possible, not more than 200 Kadams apart, which are shown in the map and which the parties admit to have been disturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances when thus compared agree in all cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. He will then lay them out with the cross staff as before and test the work by seeing whether the distance from one of his marks to another is the same in the map. If there is only a small dispute as to the boundary between two fields, the greater part of which is undisturbed, then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map…….. ..................................
18. The preparation and submission of the report as to the manner of carrying out the demarcation is the natural and lawful incident of orders of the Court. However, the instructions Nos. II to VI supra regarding the manner in which such report is to be prepared though necessary to be complied with as a matter of prudence and with a view to enable the Court to scrutinise the method adopted and proceedings carried out to demarcate the land and to arrive at a decision whether the demarcation was carried out correctly or not, but non-compliance of these instructions or any of them while preparing the report in itself will not vitiate the proceedings of the demarcation as a whole as the Court
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has the power to get the requisite clarification by examining the Revenue Officer who carried out the demarcation as and when objection(s) is raised by the aggrieved party to the proceedings of demarcation.
19. As a result what can be held is that once there has been proper compliance of the instruction No. I, the fault found in the compliance of other instructions will not vitiate the demarcation proceedings as a whole.”
PW-3, Pratap Singh, Tehsildar, who was appointed as Local Commissioner, shows that the demarcation proceedings were carried out as per the law and the procedure as well as the instructions issued by the Financial Commissioner.He had taken permanent points A B C as shown in tatima , Ext. PW-3/B and had carried out the demarcation from the mussabi in the presence of both the parties. He also recorded the statements of the witnesses, Ext. PW-3/C, Ext. PW-3/D & Ext. PW-3/E and prepared tatima , Ext. PW-3/B as per the factual position on the spot. As observed earlier, no objections to the demarcation report, Ext. PW-3/A have been filed on behalf of the defendants at any point of time. As the demarcation proceedings were carried out as per the law and the
procedure as well as the instructions issued by the Financial Commissioner, the same have rightly been relied upon by the learned Courts below while decreeing the suit of the plaintiff. Since
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it has come in the evidence on record that the defendants have encroached upon the suit land, both the learned Courts below have rightly decreed the suit of the plaintiff by restraining the defendants permanenly not to interfere in any manner over the suit land and have also rightly decreed the suit for mandatory injunction by directing the defendants to demolish the encroached portion shown in tatima , Ext. PW-3/B in Khasra No. 1630/1423/1, measuring 0-1-19 bighas and hand over the vacant possession of the same to the plaintiff. Hence, the impugned judgments and decrees passed by both the Courts below cannot be said to be based upon misreading, misinterpreting and misconstruing the pleadings and evidence on record. Thus, substantial questions of law are answered accordingly.
which is devoid of any merit, is dismissed.
Pending miscellaneous application(s), if any, shall stand disposed of.
( Sushil Kukreja ) Judge
April 05, 2023 (raman)
2 issues framed by the court
Whether impugned judgments and decrees were based on misreading or misinterpreting the pleadings and evidence?
Whether a decree for mandatory injunction could be granted solely on the basis of the demarcation report without pleadings regarding it?
Colour shows how this judgement treated each authority
C. Doddanarayana Reddy and Others Vs. Jayarama Reddy and OthersReferred¶34
C. Doddanarayana Reddy and Others Vs. Jayarama Reddy and Others , AIR 2020 Supreme Court 1912 · Who else cites this
Karnataka Board v. Anjuman-E-Ismail Madris-Un-NiswanExplained¶37
Karnataka Board v. Anjuman-E-Ismail Madris-Un-Niswan
Ramanuja Naidu v. V. Kanniah NaiduExplained¶39
Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392) : (AIR 1996 SC 3021) · Who else cites this
Navaneethammal v. Arjuna ChettyExplained¶43
Navaneethammal v. Arjuna Chetty (1996 6 SCC 166) : (AIR 1996 SC 3521) · Who else cites this
K.N. Nagarajappa & Ors. Vs. H. Narasimha ReddyExplained¶45
K.N. Nagarajappa & Ors. Vs. H. Narasimha Reddy , Live Law 2021 SC 433
Kamal Dev and another Vs. Hans RajExplained¶58
Kamal Dev and another Vs. Hans Raj , 2000(1) Shimla Law Cases 192
2 provisions across 2 enactments
Dev Raj & Ors.
Kaila (deceased) through LRs.
Sushil Kukreja
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
