Tej Singh v. Shashi Pal

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1963 pleaded therein that non-revisionist is co-owner in possession of Khata-Khatauni No. 13/18, Khasra No. 457 measuring 0-5-0 bigha, situated in Mauja Bhargaon Sub Tehsil Kotli District Mandi H.P. as per jamabandi for the year 2008-09.. It is further pleaded that revisionists are co-owner in po . ss P ession of Khata Khatauni No. 76/100 khasra No. 458 along with their brother, mother and sister measuring 0-4- f 0 b igHha situated in Mauja Bhargaon Sub Tehsil Kotli District Mandi H.P. as per jamabandi for the year 2008-09. It o is further pleaded that

between boundaries of khasra r No. t 457 and 458 there is a land comprised in khasra No. 456 recorded in the ownership of Government of Himac o hal P u radesh. It is further pleaded that non-revisionist is C serving in Indian Army in Assam Rifles and presently posted at Imphal (Manipur) and family of non- revision h ist is residing in the house situated in khasra No. 457. It is g further pleaded that revisionists with malafide intention and i ulterior motive and in order to cause injury to the non-revisionist

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and his family members w.e.f. 10.7.2013 dug and excavated the Government land comprised in khasra No. 456 by way of deploying JCB Machine and also excavated and dug the land in khasra No. 456 in unscientific manner and caused imminent

danger to the residential house of non-revisionist which would fall

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at any time. It is further pleaded that non-revisionist also reported the matter to Superintendent of Police Mandi H.P. and D.F.O. Mandi and non-revisionist sought relief of permanent prohibitory injunction restraining the revisionists from digging o.r excavating the land comprised in khasra No. 456. Non-re . vi P sionist also sought additional relief of mandatory injunction directing the revisionists to restore the land comprised in k f ha sraH No. 456 to its natural condition by way of providing re o taining wall to protect the house of the non-revisionist.

3. Revisionists filed w r ritt t en statement pleaded therein that suit is not maintain u able and non-revisionist has no locus standi to file and m o aintain the suit. It is further pleaded that non-revisionist C has no cause of action and suit is bad for non-joinder and mis-joinder of parties. It is further pleaded that the suit be h dism issed with special costs as provided under Section 35 Co g de of Civil Procedure 1908. It is further pleaded that no i excavation conducted by the revisionists upon khasra No. 456

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and it is further pleaded that only excavation has been conducted by the revisionists upon their own land comprised in khasra No. 458. It is further pleaded that revisionists did not excavate and dig khasra No. 456 in un-scientific manner as pleaded in the

plaint. It is further pleaded that on the contrary non-revisionist

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himself has encroached upon khasra No. 456 belonging to Government of Himachal Pradesh and raised construction over khasra No. 456. It is pleaded that khasra No. 456 belongs to Government of Himachal Pradesh and non-revisionist has no.

legal right or locus standi to seek any permanent pr . oh P ibitory injunction upon khasra No. 456 relating to Government of Himachal Pradesh. It is further pleaded that f no n-Hrevisionist has no cause of action. Prayer for dismissal o of suit sought. 4. Non-revisionist filed repli cation and re-asserted the allegations mentioned in the pla r int t . On dated 4.6.2014 learned trial Court framed following issues:-

i) Whether o plaint u iff is entitled for the relief of permanent prohibitory injunction as prayed for? OPP.

ii) W h C ether plaintiff is entitled for the relief of mandatory injunction as alleged? OPP. ii h i) Whether suit is not maintainable? OPD. g iv) Whether plaintiff has no cause of action to file the suit i

against the defendant? OPD. H

v) Whether suit of plaintiff is bad for mis joinder and non joinder of necessary parties? OPD. vi) Relief. 5. Civil Suit is pending before learned trial Court and listed for evidence of non-revisionist. During the pendency of civil

suit non-revisionist filed application under Order 7 Rule 14 (3)

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read with Section 151 CPC and also filed application under Order

26 Rule 9 CPC. Court heard learned Advocate appearing on behalf of the revisionists and learned Advocate appearing on behalf of the non-revisionist at length and also perused the entire.

record carefully. Following point arises for determinatio . n P in the revision petition:

1. Whether revision petition filed by t heH revisionists is liable to be accepted as mentioned in the memorandum of grounds of o revisi f on petition? 2. Relief.

Findings upon point No.1 with r re t asons: 6. Submission of u learned Advocate appearing on behalf of the revisionists th o at learned trial Court has decided both the applications by C a common order and committed illegality which cannot be cu red and on this ground revision petition be allowed is rejected h being devoid of any force for the reasons hereinafter m g entioned. It is held that there is no bar under law that two i applications cannot be decided by way of a common order in

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same civil suit. 7. Another submission of learned Advocate appearing on behalf of the revisionists that documents were not mentioned in the list of documents filed along with the plaint and no valid

reason has been given by the non-revisionist and documents

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sought to be produced are not corroborative evidence in support of the claim and learned trial Court illegally allowed the application is also rejected being devoid of any force for the reasons hereinafter mentioned. Non-revisionist intended to file.

copy of application dated 24.9.2013 filed by Smt. Drom . p P ti Devi wife of the non-revisionist to the Additional Superintendent of Police Mandi H.P. and also intended to place onH record report dated 1.11.2013 submitted by Incharge S f pecial Investigation Wing Mandi District Mandi H.P. t C ou o rt is of the opinion that both the documents are public r documents. Court is also of the opinion that copy of application dated 24.9.2013 was filed before the Additional Superi o ntend u ent of Police Mandi District Mandi H.P. and Court is C also of the opinion that report dated 1.11.2013 submitted by Incharge Special Investigation Wing Mandi is also submit h ted to a public servant in discharging of his official duties. Bo g th the documents are relevant documents as per Section 35 of i the Indian Evidence Act. It is well settled law that facts can be

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proved by parties by way of two methods: (i) By way of adducing oral evidence. (ii) By way of adducing documentary evidence. Court is of the opinion that application dated 24.9.2013 and report dated 1.11.2013 will be proved in accordance with law as

mentioned under Indian Evidence Act 1872. Court is of the

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opinion that due opportunity will be granted to the revisionists to cross-examine the witnesses and due opportunity will be granted to the non-revisionist to adduce rebuttal evidence. There is difference between (i) Document sued on (ii) Document P relied. upon by plaintiff as evidence in support of his claim. Civ . il Suit is in the stage of plaintiff evidence and defendants h H ave not started their defence evidence in civil suit as of today. ence it is held that learned trial Court did not commi o t any f illegality by way of accepting the application filed un t der Order 7 Rule 14 (3) read with Section 151 CPC.

8. Another submissionr of learned Advocate appearing on behalf of the revision o ists t u hat learned trial Court has committed illegality by wa C y of appointment local commissioner under Order 26 Rule 9 C PC is also rejected being devoid any force for the reasons h hereinafter mentioned. It is the case of the non-re g visionist that revisionists have excavated khasra No. 456 in i unscientific manner which has caused danger to the residential

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house of non-revisionist. It is well settled law that neighbour cannot be allowed to use his land in such a manner as to create nuisance to his neighbourers. See AIR 1989 (P&H) page 253 titled Darshan Ram & another vs. Nazar Ram. Non-

revisionist sought the appointment of local commissioner to

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ascertain the manner and extent of excavation and digging conducted by the revisionists in khasra No. 456 and also to ascertain extent of danger to the residential house of the non- revisionist. As per Order 26 Rule 9 CPC if Courts deem P loca.l investigation to be requisite or proper for the pu . rpose of elucidating of any matter in dispute then C ou H rt may issue commission.

9. Appointment of local com o miss f ioner is matter of judicial discretion. See AIR 1971 t S C page 61 (DB) titled M/s Filmistan Private Ltd Bombay vs. M/s Bhagwandas Santprakash and anot u her. r Revisionists have a legal right to raise objections upon local commissioner report and if any objections wou C ld be f o iled upon the local commissioner report then learned trial Court would be under legal obligations to dispose of objectio h ns filed by the revisionists in accordance with law. Even un g der Order 10 (2) Code of Civil Procedure 1908 objectors can i examine the local commissioner personally in the open Court

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touching any of the matters referred to him or mentioned in his report or as to his report or as to manner in which he made the investigation. Keeping in view the fact that revisionists have legal right to file objections upon local commissioner report and

keeping in view the fact that learned trial Court is under legal

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obligation to dispose of the objections filed against the local commissioner report it is held that learned trial Court did not commit any illegality in the present case by way of appointing local commissioner. .

10. Court has also perused the photographs p . lac P ed on record and also perused jamabandi for the years 2 H 008-09 relating to khasra No. 457. In the ownership column f of khasra No. 457 it has been specifically mentioned that 10/11 shares of ownership are in favour of Ranvir Singh, Bhee t m Sin o gh, Surender Singh, Jeet Singh, Ravi Singh, Bhoop Singh r , Hakam Singh, Shashipal, Gopal Singh, Krishan Kumar son u s of Keshav Ram and 1/11 share is in the ownership of Ka o pil Dev, Dharmender sons and Smt. Maya Devi widow Ho C shiar Singh son of Keshav Ram. There is recital in the jamaban di placed on record that there is residential and shop upon k h hasra No. 457. Court has also perused jamabandi for the ye g ar 2008-09 relating to khasra No. 458. As per jamabandi Tej i Singh, Hans Raj and Mast Ram sons and Smt. Krishna Devi

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daughter and Neela Devi widow of Narayan Dass are co-owners of khasra No. 458 and nature of khasra No. 458 has been shown as Sehan. Court has also perused jamabandi for the year 2008-09 relating to khasra No. 456. Khasra No. 456 is in the ownership of

State of Himachal Pradesh and in the possession column name of

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PWD department is recorded. In view of the fact that civil suit is listed for evidence of non-revisionist and in view of the fact that revisionists have not started their evidence in Civil Suit No. 52 of 2014 and in view of the fact that revisionists will be at lib P erty to. file oral as well as documentary rebuttal evidence it is he . ld that it is not expedient in the ends of justice to interfere w H ith the order of learned trial Court dated 30.4.2015. Point No.1 is answered in negative against the revisionists. f

Point No.2 (Relief): o

11. In view of the findin r gs u t pon point No.1 above revision petition is dismissed. u Order of learned trial Court dated 30.4.2015 passed in o Civil Suit No. 52 of 2014 titled Shashi Pal vs. Tez Singh & another is affirmed. Parties are directed to appear before the le arn C ed trial Court on 31.12.2015. File of learned trial Court h along with certified copy of this order be sent back fo g rthwith. Revision petition is disposed of. No order as to costs. i Pending applications if any also disposed of.

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(P. S. Rana), 9^th December, 2015 Judge. (kck)