Dismissed

Raghubir Singh v. Ashok Dutta

J&K HC6 Sept 2021CSA/9/2014

Case brief

AI extract

What is this about?

This is an order disposing of a civil second appeal. The High Court held that the appeal did not raise any substantial question of law, contrary to the appellant's submission. Consequently, the appeal was dismissed at the admission stage without delving into the merits of the land dispute below.

What did the court decide?

The second appeal is dismissed at the admission stage as it does not raise any substantial question of law.

Raghubir Singh Vs Ashok Dutta — Contract and Commercial Disputes | J&K HC (2021)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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CSA No.9/2014 IA No.16/2014

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Raghubir Singh

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...Appellant(s)

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Through:- Mr. Roop Lal, Advocate

V/s

Ashok Dutta

...Respondent(s)

Through:- Mr.Anil Khajuria, Advocate

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Coram: HON’BLE MR. JUSTICE SANJY DHAR, JUDGE JUDGMENT

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The appellant has filed this civil second appeal against the judgment and decree dated 30.11.2013 passed by the Principal District Judge, Samba( for short, “the Appellate Court”), whereby the learned Appellate Court has set aside the judgment and decree dated 23.11.2011 passed by the Additional Munsiff, Samba in a suit titled Ashok Dutta v. Raghubir Singh.

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The facts giving rise to the filing of instant appeal are that the respondent (hereinafter referred to as “the plaintiff”) filed a suit for mandatory and permanent prohibitory injunction against the appellant (hereinafter referred to as “the defendant”) before the Court of Additional Munsiff, Samba. In the suit the plaintiff claimed that he has purchased a plot of land in Ward no.4 Vijaypur by virtue of a registered sale deed dated 25.04.1988. According to the plaintiff, there was a ten feet wide lane abutting his house, which he had constructed on the aforesaid land after

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2 CSA No.9/2014

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obtaining proper permission from the Notified Area Committee, Vijaypur.

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It was alleged that the defendant while constructing his house near the house of the plaintiff, has encroached on the aforesaid lane to the extent of five feet, as a result of which it has become very difficult for the vehicles to enter the said lane. On the basis of these facts, plaintiff sought a mandatory injunction directing the defendant to demolish the construction raised by him on the encroached portion of the lane with a further injunction against the defendant prohibiting him from raising any further construction or encroaching on the aforesaid lane.

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The defendant filed his written statement to the plaint. Besides claiming that the suit of the plaintiff was not maintainable, it was contended that full description of the property as well as the lane in question has not been given in the plaint. It was further contended by the defendant in the written statement that he had constructed the house on his land in the year 1980 and it was only in the year 1988 that the plaintiff had purchased the land on which he has constructed his house. According to the defendant, it was very much in the knowledge of the plaintiff that the defendant had covered his land and, as such, plaintiff could not ask the defendant to remove the construction on the lane in question. After completion of pleadings, the Trial Court framed the following issues:-

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“1. Whether the defendant has raised illegal and forcible construction over the 10 ft. wide lane as detailed and described in the plaint and thereby, whether there exists public lane as described in suit and is being used by plaintiff along with other public?....OPP

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3 CSA No.9/2014

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2. In case the issue No.1 is proved in affirmative whether the defendant has illegally, forcibly and without any right encroached upon the suit lane approx. 5 ft in width? …OPP

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3. Whether the suit of the plaintiff is not maintainable as there is no description of the suit lane? ….OPD

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4. Relief if any to which the plaintiff is entitled?”

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During trial of the case, the plaintiff besides examining himself as his witness, also examined PW-Dewan Singh, PW-Kali Dass and PW-Dev Raj as his witnesses in support of his case. These witnesses were cross-examined by the defendant but the defendant did not lead any evidence in support of his case and infact the defendant was set-exparte.

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Vide judgment dated 23.11.2011, learned trial Court dismissed the suit of the plaintiff by holding that the plaintiff has failed to prove issue Nos. 1 and 2, inasmuch as he has failed to establish the extent of encroachment alleged to have been made by the defendant.

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The plaintiff filed an appeal against the aforesaid judgment and decree of the trial Court before the District Judge, Samba and vide judgment and decree dated 30.11.2013, which is impugned in this appeal, learned Appellate Court set aside the judgment and decree of the trial Court and decreed the suit of the plaintiff. While doing so, the learned Appellate Court, on the basis of re-appreciation of evidence, came to the conclusion that plaintiff has succeeded in proving his case as against the defendant.

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4 CSA No.9/2014

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The defendant has challenged the impugned judgment and decree passed by the Appellate Court on the grounds that the same is not based on the pleadings and relevant documents on record; that the site map attached with the plaint has not been prepared by a public authority, as such, same could not have been taken into account by the learned Appellate Court; that the appeal raises substantial questions of law, which require determination by this Court.

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I have heard learned counsel for the parties and perused the judgment passed by the Trial Court and the judgment of the learned Appellate Court as also the grounds of appeal.

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It is settled law that a civil second appeal can be entertained and admitted to hearing only, if it raises substantial questions of law. This is contemplated by Section 100 of the Code of Civil Procedure. However, if the appeal does not raise any substantial question of law, the same can be disposed of at admission stage itself.

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According to the learned counsel for the appellant, the Appellate Court has not appreciated the evidence on record in proper perspective and without undertaking such an exercise it has set aside the findings recorded by the Trial Court. If we have a look on the findings recorded by the Trial Court on issue Nos.1 and 2, it is clear that the Trial Court has fallen into error while appreciating the evidence on these issues, inasmuch as, plaintiff besides examining himself as his witness, has also examined PW-Kali Dass as his witness from whom the defendant has purchased the land and his statement has not been properly appreciated by

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5 CSA No.9/2014

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the Trial Court. PW-Kali Dass has categorically stated that the defendant has encroached ¾ marla of land from the lane adjoining his house. Besides plaintiff, PWs- Dewan Singh and Dev Raj have also stated that the defendant has encroached upon four feet of lane. It is pertinent to mention here that PW-Kali Dass is the person, who has developed the Colony and he has clearly stated that he had left a ten feet wide lane, which has been encroached upon by the defendant. The Trial Court has, on the basis of conjectures and surmises observed that there are contradictions in the statements of the witnesses of plaintiff and disbelieved them. As against this, learned Appellate Court has appreciated the evidence on record in right perspective and come to the conclusion that the plaintiff has succeeded in proving his case against the defendant.

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It has been contended that the site map attached to the plaint has not been prepared by the competent authority as such, the factum of encroachment cannot be established by such a document. The argument is without any merit, as merely because the dasti map attached to the plaint has not been prepared by an authorized officer of the government does not make any difference when oral evidence on record convincingly establishes the case of the plaintiff against the defendant, particularly, when no evidence in rebuttal has been led by the defendant in the case.

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In the written statement defendant has claimed that he has purchased the land on which he has constructed house way back in the year 1980 i.e. eight years prior to the year when the plaintiff had purchased the land, but he has not led any evidence to prove this fact. Infact, defendant in

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6 CSA No.9/2014

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his written statement has nowhere specifically denied that the allegation that he has encroached upon the lane. His only contention is that his house already existed on spot prior to the construction of house by the plaintiff.

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Apart from the above, learned Trial court while framing issue No.3 has placed the burden of proof of the said issue on the defendant, who had alleged that the suit is not maintainable because there is no description of the suit lane. Admittedly, defendant did not lead any evidence in support of his case. Thus, on the one hand ,the Trial Court placed the burden of proving the fact that there is no description of the suit lane on the defendant and on the other hand, in the absence of any evidence led by the defendant, it went on to hold that description of the suit lane is not given by the plaintiff. This is a clear case of non-application of mind on the part of learned Trial Court.

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For the foregoing reasons, I am of the considered opinion that the learned Appellate Court has rightly appreciated the evidence led in the suit and has come to right conclusion. The appeal does not raise any question of law much less a substantial question of law. Therefore, the same does not deserve to be admitted to hearing.

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The appeal is, accordingly, dismissed at admission stage itself.

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( Sanjay Dhar) Judge

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JAMMU. 06.09.2021 Vinod.

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Whether the order is speaking : Yes Whether the order is reportable: Yes

Raghubir Singh v. Ashok Dutta

Case brief

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Raghubir Singh v. Ashok Dutta

Case brief

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