1. Instant regular second appeal filed under Section 100 CPC is directed against judgment and decree dated 30.9.2005 passed by the learned Additional District Judge, Ghumarwin in Civil Appeal No. 243/13 of 2004/2001, affirming the judgment and decree dated 19.6.2001 passed by the learned Sub Judge 1st Class, Ghumarwin in Case No. 10/1 of 1994, whereby suit for declaration/permanent injunction /possession having been filed by the appellant/plaintiff (herein after referred to as, ''plaintiff'') was dismissed.
2. Briefly stated, facts as emerge from the record are that the plaintiff filed a suit for declaration/ permanent injunction and possession claiming himself to be owner-in-possession of the suit land measuring 0-5 Biswa comprising Khasra No. 476/369 situated in Village Dakri Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, HP. Plaintiff further averred in the plaint that the defendant without having any right, title or interest over the suit land started interfering in the same and raised pillars over 7 Biswansis shown as Khasra No. 476/369/1. In the aforesaid background, plaintiff sought declaration that he is owner-in-possession of the suit land. Apart from above, plaintiff also prayed for relief of possession qua land measuring 7 Biswansis comprising of Khasra No. 476/369/1 after dismantling the construction of the defendant. Plaintiff also claimed relief of permanent injunction restraining the defendant from interfering in any manner in the suit land.
3. Defendants, by way of written statement, refuted the claim of the plaintiff as put forth in the plaint, on the ground of maintainability, cause of action, jurisdiction of the Court, locus standi, estoppel, valuation of the suit for the purpose of court fee, jurisdiction and limitation etc. On merits also, defendants claimed that they have raised construction over their own land, which was completed in the year 1972 and they have no claim/right over the land of the plaintiff. Defendants also averred in the written statement that they have never intended to interfere in the suit land and as such sought dismissal of the suit of the plaintiff.
4. Plaintiff while reasserting his claim by way of rejoinder, denied the averments contained in the written statement. Learned trial Court, on the basis of pleadings framed following issues:
"1. Whether the plaintiff is owner in possession over the suit
land? OPP
2. Whether plaintiff is entitled to the relief of permanent
injunction as prayed? OPP
3. Whether the plaintiff is entitled to the relief of possession
as alleged? OPP
4. Whether the suit is not maintainable? OPD
5. Whether plaintiff has no cause of action? OPD
6. Whether this court has no jurisdiction to try the suit? OPD
7. Whether the plaintiff has no locus standi to file the suit?
OPD
8. Whether the plaintiff is estopped to file the suit due to his
act and conduct? OPD.
9. Whether the suit is not properly valued, OPD.
10. Whether the suit is barred by limitation? OPD
11. Relief."
5. Subsequently, vide judgment and decree dated 19.1.2006
learned trial Court partly decreed the suit of the plaintiff to the effect
that he was owner-in-possession of the suit land comprising of Khasra
No. 476/369 Khata Khatauni No. 220/317 land measuring 0-5 Biswas,
situated in Village Dakri, Pargana Tiun, Tehsil Ghumarwin, District
Bilaspur. However, suit for permanent injunction and possession qua 7
Biswansis of land was dismissed. Plaintiff being aggrieved and
dissatisfied with dismissal of his suit for injunction and possession,
filed an appeal before the Additional District Judge, Ghumarwin, who
also dismissed the same and upheld the judgment and decree passed by
learned trial Court. Hence, this Regular Second Appeal.
6. Present regular second appeal was admitted on 17.10.2006, on the following substantial question of law:
"Whether the dismissal of the application moved by the
plaintiff for appointment of Local Commissioner for the
purpose of carrying out the demarcation has resulted in
miscarriage of justice?"
7. Mr. Ramakant Sharma, learned counsel representing the plaintiff
vehemently argued that the impugned judgments and decrees passed by
the learned Courts below are not sustainable in the eye of law as the
same are not passed by the learned Courts below upon correct
appreciation of the evidence, as such, deserve to be set aside. Mr.
Sharma, while referring to the impugned judgment passed by court
below strenuously argued that both the Courts below failed to
appreciate ample evidence adduced on record by the plaintiff that the
defendants raised construction on the suit land and the Tatima prepared
by the Patwari (Ext. PW-3/A) was sufficient to prove on record the
illegal construction raised on suit land by the defendants. Mr. Sharma,
further contended that the learned Courts below wrongly decided
issues No. 2 and 3 against the plaintiff, that too, ignoring the specific
/sufficient evidence on record adduced by the plaintiff in the shape of
the Tatima prepared by the Patwari, Ext. PW-3/A. While inviting
attention of this Court to the depositions made by Dev Raj and Hira
Lal, Mr. Sharma, contended that the plaintiff successfully proved on
record that the defendants raised illegal construction on the suit land, as
such, learned trial Court ought to have passed decree of permanent
injunction calling upon the defendants to restore the possession after
dismantling the pillars raised on the suit land. While concluding his
arguments, Mr. Sharma, invited attention of this Court to the
application having been filed by the plaintiff during the pendency of
the trial, under Order 26 Rule 9 CPC for appointment of local
commissioner, to demonstrate that the learned Courts below erred in
not appointing the local commission, especially when dispute was with
regard to boundary. In this regard, he also placed reliance upon AIR
2003 HP 82 as well as Chapter X of Land Records Manual, to
suggest that it was incumbent upon the Court below to appoint local
commissioner to resolve boundary dispute between the parties. In the
aforesaid background, Mr. Sharma, prayed that suit for permanent
injunction restraining the defendants from interfering in the suit land as
well as possession after dismantling the structure raised by the
defendants may be decreed, after setting aside the judgments and
decrees passed by learned Courts below.
8. Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate, appearing for the respondents/defendants (hereinafter, ''defendants'') supported the judgments and decrees passed by the Courts below. Mr. Verma, while referring to the judgments of the Courts below, strenuously argued that the same are based on correct appreciation of the evidence adduced on record by the respective parties, as such, there is no scope of interference, especially in view of the concurrent findings of fact and law returned by the learned Courts below. While refuting the contentions of the learned counsel representing the plaintiff, Mr. Verma, invited attention of this Court to the plaint having been filed by the plaintiff, to demonstrate that the issue before the learned trial Court was not of boundary dispute, rather plaintiff filed suit for possession and as such there is no illegality or infirmity in the judgments passed by the learned Courts below, whereby application for appointment of local commissioner was rejected. Mr. Verma, further contended that the Tatima prepared by Patwari, PW-3, was placed on record by the plaintiff himself, after having demarcation of the land in the year 1990 and as such, it can not be said that any prejudice was caused to him due to dismissal of application filed under Order 26 Rule 9 CPC. While concluding his arguments, Mr. Verma, specifically invited attention of this Court to the averments contained in the aforesaid application, to demonstrate that there was no question of boundary dispute and as such case law cited by the plaintiff, was not attracted in the present case. Mr. Verma, also invited attention of this Court to the statement of PW-3, to suggest that Tatima Ext. PW-3/A was prepared by Patwari after completion of formalities necessary for carrying out demarcation as laid down in Chapter X of Land Record Manual and Tatima Ext. PW-3/A was prepared by Patwari on the instructions of the plaintiff and not on the basis of the revenue record and spot possession. Mr. Verma, further reminded this Court of its limited jurisdiction to re-appreciate the evidence led on record by respective parties while exercising powers under Section 100 CPC, that too, when both the learned Courts below have returned concurrent findings of facts and law. In this regard, he placed reliance upon judgment passed by Hon''ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein the Hon''ble Supreme Court has held:
"16. Based on oral and documentary evidence, both the courts
below have recorded concurrent findings of fact that the
plaintiffs have established their right in A schedule property. In
the light of the concurrent findings of fact, no substantial
questions of law arose in the High Court and there was no
substantial ground for reappreciation of evidence. While so, the
High Court proceeded to observe that the first plaintiff has
earmarked the A schedule property for road and that she could
not have full-fledged right and on that premise proceeded to hold
that declaration to the plaintiffs'' right cannot be granted. In
exercise of jurisdiction under Section 100 CPC, concurrent
findings of fact cannot be upset by the High Court unless the
findings so recorded are shown to be perverse. In our
considered view, the High Court did not keep in view that the
concurrent findings recorded by the courts below, are based on
oral and documentary evidence and the judgment of the High
Court cannot be sustained."
(p.269)
9. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-appreciating the evidence available on record, but as emerges from the case referred above, there is no complete bar for this Court to upset the concurrent findings of the Courts below, if the same appears to be perverse.
10. In this regard reliance is placed upon judgment passed by Hon''ble Apex Court in Sebastiao Luis Fernandes (Dead) through LRs and Others vs. K.V.P. Shastri (Dead) through LRs and Others, (2013)15 SCC 161 wherein the Court held:
"35. The learned counsel for the defendants relied on the
judgment of this Court in Hero Vinoth v. Seshammal, (2006)5
SCC 545, wherein the principles relating to Section 100 of the
CPC were summarized in para 24, which is extracted below :
(SCC pp.555-56)
"24. The principles relating to Section 100 CPC relevant for
this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of
the terms of a document is a question of law.
Construction of a document involving the application
of any principle of law, is also a question of law.
Therefore, when there is misconstruction of a
document or wrong application of a principle of law
in construing a document, it gives rise to a question
of law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a
mere question of law. A question of law having a
material bearing on the decision of the case (that is, a
question, answer to which affects the rights of parties
to the suit) will be a substantial question of law, if it
is not covered by any specific provisions of law or
settled legal principle emerging from binding
precedents, and, involves a debatable legal issue. A
substantial question of law will also arise in a
contrary situation, where the legal position is clear,
either on account of express provisions of law or
binding precedents, but the court below has decided
the matter, either ignoring or acting contrary to such
legal principle. In the second type of cases, the
substantial question of law arises not because the law
is still debatable, but because the decision rendered
on a material question, violates the settled position of
law.
(iii) The general rule is that High Court will not interfere
with the concurrent findings of the courts below. But
it is not an absolute rule. Some of the wellrecognised
exceptions are where (i) the courts below
have ignored material evidence or acted on no
evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the
burden of proof. When we refer to "decision based
on no evidence", it not only refers to cases where
there is a total dearth of evidence, but also refers to
any case, where the evidence, taken as a whole, is
not reasonably capable of supporting the finding."
We have to place reliance on the afore-mentioned case to
hold that the High Court has framed substantial questions of
law as per Section 100 of the CPC, and there is no error in
the judgment of the High Court in this regard and therefore,
there is no need for this Court to interfere with the same."
(pp.174-175)
11. I have heard the learned counsel for the parties and gone through
the record carefully.
12. During the proceedings of this case, this Court had an occasion to peruse pleadings as well as entire evidence led on record by the respective parties, be it ocular or documentary, perusal whereof nowhere suggests that the Courts below misread and misappreciated the evidence. Rather, this Court is convinced and satisfied that both the learned Courts below have dealt with each and every aspect of the matter meticulously. In the instant case, as emerges from the record, plaintiff filed suit for declaration claiming himself to be owner-inpossession of the suit land as described herein above, as well as for permanent injunction restraining the defendants from constructing any house/ shed or raising any projections or structure /pipe line in the suit land. If averments contained in the plaint are read in their entirety, it nowhere suggests that there was a boundary dispute between the parties. Rather, plaintiff claimed himself to be owner-in-possession of the suit land and in this regard, he sought declaration from the Court that he may be declared to be owner of the suit land. Apart from above, plaintiff also prayed that he be put in possession of the land measuring 0-0-7 Biswa comprising of Khasra No. 476/369/1 Khata Khatauni No. 220/317 after dismantling the construction raised by the defendants, whereas defendants claimed that they laid foundation as well as constructed pillars on the suit land in the year 1972 when their old house/building was constructed. Defendants further claimed that pillars, if any, on suit land were raised prior to the institution of the suit. Though, the defendants in their written statement, specifically stated that no demarcation was ever carried out by Kanungo and as such, Tatima relied by the plaintiff was wrong and imaginary, this Court, with a view to explore answer to the substantial question of law, as referred above, carefully perused the application having been preferred by the plaintiff under Order 26 Rule 9 CPC, which itself suggests that the plaintiff filed suit for possession against defendants, wherein he furnished Tatima of the encroached land, prepared by Patwari, but since Patwari, who furnished aforesaid Tatima, failed to make statement in favour of the plaintiff, plaintiff moved an application before trial Court, praying therein for appointment of local commissioner to demarcate the suit land. Plaintiff, in the application for appointment of local commissioner, stated that Patwari, who had issued Tatima in his favour, made statement contrary to the Tatima prepared by him, as such, local commissioner be appointed to demarcate the suit land afresh. Perusal of order dated 1.8.2000, passed by learned trial Court suggests that while specifically disposing of application filed by plaintiff under Order 26 Rule 9 CPC, learned trial Court specifically concluded that suit filed by plaintiff is pending since 1985, whereas application for appointment of local commissioner has been filed at the stage of defendants'' evidence.
13. Careful perusal of the pleadings as available on record clearly suggests that the entire case of the plaintiff was based on Tatima Ext. PW-3/A allegedly issued by Patwari, who later on did not support the case of the plaintiff. It is admitted case of the plaintiff that he himself got land demarcated in the year 1990, on the basis of which, Tatima Ext. PW-3/A, was issued by Patwari concerned. Perusal of order dated 1.8.2000 passed by learned trial Court further suggests that learned trial Court, while dismissing application for appointment of local commissioner, specifically observed that it is always open for the plaintiff to apply for demarcation of suit land before competent revenue officer and also for issuance of Tatima since there is no bar for revenue officer to demarcate suit land when it is sub judice.
14. There is no illegality in the findings of the Courts below that the local commissioner can not be appointed at this stage i.e. evidence, because it will amount to creation of evidence in favour of plaintiff. Moreover, as emerges from record, there is an attempt on the part of the plaintiff, either to delay the proceedings, or to create some evidence in his favour by moving application under Order 26 Rule 9 CPC. Moreover, Tatima Ext. PW-3/A was placed on record by plaintiff himself but no demarcation report was placed on record to substantiate averments contained in the plaint or application for appointment of local commissioner that Patwari concerned, who had issued Tatima, connived with the opposite party and issued Tatima contrary to the revenue record.
15. Hence, this Court sees no illegality or infirmity in the judgment and decree passed by the learned trial Court, whereby application under Order 26 Rule 9 CPC, having been filed by the plaintiff was dismissed, because, by no stretch of imagination, aforesaid application could be allowed by the learned trial Court, on the basis of averments contained in the application, which clearly suggests that the plaintiff, by moving application, tried to create evidence in his favour, that too at a belated stage.
16. Substantial question of law is answered accordingly.
17. Consequently, in view of the discussion above, there is no merit in the present appeal and the same is dismissed. Pending applications, if any, are disposed of. Interim directions, if any, are also vacated.
