Dsl Hydro Project Pvt. Ltd. Vs Budh Ram
Case Details
 Case Type | Civil Appeal |
 Filing Number | 810/2019 |
 Registration Number | 15/2019 |
 Filing Date | 03-07-2019 |
 Registration Date | 18-07-2019 |
 First Hearing Date | 04th September 2019 |
 Decision Date | 18th December 2019 |
 Case Status | Case Disposed |
 Court Number and Judge | 1-District & Sessions Judge, Kullu; |
 Nature of Disposal | Contested--Allowed; |
Petitioners & Respondents
Petitioner Dsl Hydro Project Pvt. Ltd., ;
.svg){kind=icon}
Petitioner AdvocateR.L Thkaur;
Respondent NameBudh Ram;
Order Details
| Order Date | 26-10-2019  |
(Civil Appeal No. 8 of 2019 (Regn. No. 15 of 2019) CNR No. HPKU010016952019 D.S.L. Hydro versus Budh Ram) 26.10.2019 Present:- Shri R.L. Thakur, Advocate for appellant. Shri P.C. Thakur, Advocate for respondent. Record of trial Court received. Put up for arguments on 18.11.2019. (Purender Vaidya) District Judge, Kullu. 2018-03-07 11:42:11 IST 2019-10-26T15:29:17+0530 2020-03-07 11:42:11 IST |
| Order Date | 18-11-2019 |
(Civil Appeal No. 8 of 2019 (Regn. No. 15 of 2019) CNR No. HPKU010016952019 D.S.L. Hydro versus Budh Ram) 18.11.2019 Present:- Shri R.L. Thakur, Advocate for appellant. Shri P.C. Thakur, Advocate for respondent. Arguments partly heard.. Put up for further arguments on 28.11.2019. (Purender Vaidya) District Judge, Kullu. 2018-03-07 11:42:11 IST 2019-11-18T16:46:21+0530 2020-03-07 11:42:11 IST |
| Order Date | 28-11-2019 |
(Civil Appeal No. 8 of 2019 (Regn. No. 15 of 2019) CNR No. HPKU010016952019 D.S.L. Hydro versus Budh Ram) 28.11.2019 Present:- Shri R.L. Thakur, Advocate for appellant. Shri P.C. Thakur, Advocate for respondent. Time prayed for arguments by learned counsels for parties. Allowed. Put up for further arguments on 11.12.2019. (Purender Vaidya) District Judge, Kullu. 2018-03-07 11:42:11 IST 2019-11-28T15:18:53+0530 2020-03-07 11:42:11 IST |
| Order Date | 11-12-2019 |
(Civil Appeal No. 8 of 2019 (Regn. No. 15 of 2019) CNR No. HPKU010016952019 D.S.L. Hydro versus Budh Ram) 11.12.2019 Present:- Shri R.L. Thakur, Advocate for appellant. Shri P.C. Thakur, Advocate for respondent. Arguments partly heard. Put up for further arguments on 18.12.2019. (Purender Vaidya) District Judge, Kullu. 2018-03-07 11:42:11 IST 2019-12-11T16:51:15+0530 2020-03-07 11:42:11 IST |
Final Order Judgement
| Order Date | 18-12-2019 |
| In the Court of Purender Vaidya, District Judge, Kullu, Distt. Kullu, H.P. Civil Appeal No.8 of 2018. Registration No.15/2019. CNR No. HPKU01-001685-2019. Date of Institution:5.7.2019. Date of Decision :18.12.2019. DSL Hydro Project Pvt. Ltd., Sarwari-1, Nagujhor, P.O Doghari, Tehsil and Distt. Kullu, HP, through its AGM, Sh. Shyam Sunder. …... Appellant/defendant . Versus. Budh Ram son of Sh. Tholu Ram R/o village Paishani , P.O. Doghari, Tehsil and Distt. Kullu, HP. …... Respondent/plaintiff . Appeal under Section 96 of C.P.C read with Section 21 of H.P Courts Act. Representing Counsels:- For the Appellant: Sh. R.L.Thakur,Advocate. For the respondent : Sh. P. C. Thakur,Advocate. J U D G M E N T : This appeal has been preferred against the judgment and decree passed by learned Senior Civil Judge, Lahaul Spiti, at Kullu, in Civil suit no. 264 of 2014, dated 26.04.2019, vide which, the civil suit filed by respondent -plaintiff against the appellant -defendant for possession has been decreed. 2. Feeling aggrieved by said judgment and decree, the defendant has filed the present appeal alleging that learned trial Court has failed to appreciate the pleadings as well as evidence of the parties. Consequently, relevant issues were wrongly decided. The report of Field Kanungo was not duly 2. DSL: Hydro Project Pvt.Ltd. Vs. Budh Ram. Civil Appeal No.8 of 2018. Registration No.15/2019. CNR No. HPKU01-001685-2019. proved. So, it was not properly appreciated. Hence, prayer was made to set aside the impugned judgment. 3. Briefly stated, the facts giving rise to the present appeal are that plaintiff filed civil suit stating that he was owner in possession of suit land bearing khasra no. 3786,khata/khatauni no. 121min/236, measuring 0-3-0 bigha, to the extent of half share , which would come to 0-01-10 bigha. The defendant acquired half share of the suit land on the basis of agreement, executed by Nathu Ram, the real brother of plaintiff, but , in the light of said agreement, defendant, wrongly and illegally encroached upon half share of plaintiff by raising one cemented pillar and defendant also laid down pan stock pipe line in the suit land. Plaintiff obtained the demarcation from the Revenue Agency and vide demarcation report, dated 26.5.2014, it was found that suit land was encroached by the defendant forcibly by laying pillar and pan-stock pipes. The defendant was asked to hand over vacant portion of the suit land to the plaintiff by removing aforesaid pan stock pipe line and pillar, but in vain. Hence, plaintiff filed suit for possession of half share in the suit land. 4. The defendant contested the suit by filing written statement, wherein, preliminary objections as to cause of action, non-joinder of necessary parties, proper identification of the suit land, maintainability, estoppel and valuation of the suit for the purpose of Court fee and jurisdiction was raised. On merits, it was not denied that plaintiff was having half share in the suit land. It was stated that the other co-sharers to the extent of half share , namely Nawal Kishore, Tilak Raj, Mangal Chand and Roshan Lal, vide lease deed, dated 18.6.2013, had leased out their half share in the suit land in favour of defendant on payment of ` 30,000/- and possession was also delivered to the defendant. It was 3. DSL: Hydro Project Pvt.Ltd. Vs. Budh Ram. Civil Appeal No.8 of 2018. Registration No.15/2019. CNR No. HPKU01-001685-2019. further stated that half share of the plaintiff was still vacant on the spot and defendant did not encroached upon the share of the plaintiff. Hence, prayer was made to dismiss the suit. 5. No replication was filed. In the light of the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled for decree of possession, as alleged ?OPP. 2. Whether the defendant has encroached upon the suit land, as alleged ?OPP. 3. Whether the suit is not maintainable in the present form ?OPD. 4. Whether the plaintiff has no cause of action to file the present suit ?OPD. 5. Whether the suit is bad for non-joinder of necessary parties ?OPD. 6. Whether the suit land has not been properly identified ?OPD. 7. Whether the plaintiff is estopped by his act and conduct to file the present suit ?OPD. 8. Relief. 6. The aforesaid issues were read over and explained to the parties by the trial Court and no other issues were pressed or claimed. The evidence of both the parties were recorded by the learned trial Court. In view of evidence as well as arguments of both the parties, learned trial Court decided the aforesaid issues as under:- Issue No. 1: Yes. Issue No.2: Yes. Issue No.3: No. Issue No. 4: No. 4. DSL: Hydro Project Pvt.Ltd. Vs. Budh Ram. Civil Appeal No.8 of 2018. Registration No.15/2019. CNR No. HPKU01-001685-2019. Issue No.5: No. Issue No.6: No. Issue No.7: No. Relief: The suit is decreed per operative portion of the judgment. 7. Since the suit filed by the plaintiff has been decreed , therefore, the defendant has filed the present appeal with the prayer to set aside the impugned judgment and decreed . 8. I have heard both the parties and gone through the record carefully. The arguments advanced in this appeal give rise to the following points for determination :- 1. Whether the impugned judgment and decree , dated 26.04.2019, passed by the learned trial court in Civil Suit no. 264 of 2014, is sustainable under law ? 2. Final order. 9. For the reasons to be recorded hereinafter, while discussing the aforesaid points for determination, my findings on these points are as under:- POINT No.1: No. POINT No.2: The appeal is allowed as per operative part of the judgment. RESONS FOR FINDINGS. POINT No. 1 : 10. After hearing both the parties and going through the record carefully, I am of the considered opinion that the impugned judgment and decree passed by the ld. Trial Court is not sustainable under law, for the reasons to be recorded hereinafter. 5. DSL: Hydro Project Pvt.Ltd. Vs. Budh Ram. Civil Appeal No.8 of 2018. Registration No.15/2019. CNR No. HPKU01-001685-2019. 11. There is no dispute that suit land bearing khasra no. 3786 measuring 0-3-0 bigha was owned and possessed by plaintiff-respondent , Budh Ram and his brother Nathu Ram. This fact is also evident from the copy of jamabandi for the year,2005- 06, Ex.PW3/B, wherein, both Nathu Ram and Budh Ram have been recorded with share and possession of the suit land. From the evidence of parties, it is also clear that , now, Nathu Ram is dead and his estate in the suit land has been inherited by his sons, namely Nawal Kishore, Tilak Raj, Mangal Chand and Roshan Lal . So, the aforesaid sons of Nathu Ram are also co-sharers in the suit land to the extent of ½ share. Thus, we have to appreciate the evidence, on record, in this background. 12. The plaintiff has filed the suit for possession to get his half share in the suit land. It is the case of the plaintiff that defendant have raised construction of pillar and they had laid pan-stock pipe line through the suit land on the basis of some agreement. In the written-statement, defendant has categorically stated that they have entered into an agreement with Nawal Kishore, Tilak Raj, Mangal Chand and Roshan Lal , sons of Nathu Ram and they leased out their half share in favour of defendant in the sum of ` 30,000/- and possession has been handed over to them. This fact has been categorically deposed by DW-1, Shayam Sunder, the authorized signatory , on behalf of the defendant. NO doubt, agreement/lease deed , executed by sons of Nathu Ram in favour of defendant, has not been produced, but, suit has been filed by the plaintiff and not by the defendant. So, plaintiff has to stand on his own legs. Here, the testimony of plaintiff, Budh Ram is relevant. In his cross-examination, he has admitted that sons of Nathu Ram ,namely Nawal Kishore, Tilak Raj, Mangal Chand and Roshan Lal had leased out their share in favour of defendant. This categoric admission on the part of defendant is 6. DSL: Hydro Project Pvt.Ltd. Vs. Budh Ram. Civil Appeal No.8 of 2018. Registration No.15/2019. CNR No. HPKU01-001685-2019. specific to establish that possession of the defendant over the suit land is on behalf of Mangal Chand etc; the sons of Nathu Ram, who are having half share. Thus, defendant was justified to use the suit land to the extent of half share . In his cross- examination, plaintiff has clarified that he requested the defendant to also take his share, but, defendant refused. So, he did not give any consent, that is why, registered deed could not be executed in favour of defendant. Even if, there is no registered lease deed in favour of defendant, I am of the opinion that possession of the defendant over the suit land is on behalf of Mangal Chand etc;, sons of Nathu ram. So, defendant is assignee or licensee of Mangal Chand etc;. Thus, the possession of defendant over the suit land is not that of a encroacher , but, it is permissive possession on behalf of other co-sharers. 13. The plaintiff has examined himself as PW-3 and he has deposed all the facts , stated by him, in the plaint. The plaintiff also examined PW-1 Dhani Ram ,,Clerk, Tehsil Office,Kullu, who produced relevant file of demarcation as plaintiff had obtained demarcation of suit land by moving application , Ex.PW1/A. In order to prove demarcation, plaintiff has examined PW-2 Bhim Sen, Kanungo, who has deposed that he carried out the demarcation of the suit land vide his report, Ex.PW1/B. He recorded the statements of both the parties, which are,Ex.PW1/C; and Ex.PW1/D. His statement and aforesaid report are revealing that defendant had constructed pillar and laid pan- stock pipes on the middle of the suit land, but, one fact is clear that now, construction of pillar and laying of pan-stock pipes on behalf of defendant is complete. PW-2 , Bhim Sen, Kanungo, has not prepared tatima of the spot to exactly reveal the location of pillar and pan-stock pipe line on the spot. To my mind, the tatima or site plan of the spot could be the best evidence to establish 7. DSL: Hydro Project Pvt.Ltd. Vs. Budh Ram. Civil Appeal No.8 of 2018. Registration No.15/2019. CNR No. HPKU01-001685-2019. that , in fact, defendant has constructed pillar and laid down pan-stock pipe in the middle of the suit land. 14. Even if, for argument sake, it is admitted that said pillar and pan-stock pipe line have been laid down in the middle of the suit land, then, to my mind, DW-1 Shayam Sunder , in his testimony has specifically deposed that on the spot, half share of plaintiff is vacant and he has further clarified that defendant is ready to give half share of one biswa and ten biswansis to the plaintiff, but, fact remains that in order to get possession of aforesaid half share , there must be specific tatime of the spot qua half share. In the absence of specific tatima and site plan of the spot, decree for possession cannot be executed. So, the decree passed by the trial Court is un-executable. 15. The demarcation report, Ex. PW1/B, heavily relied upon by the plaintiff is not a legal evidence. Under law, Kanungo is not competent on his own to carry out demarcation. The copy of application for demarcation filed by the plaintiff, Budh Ram , is Ex.PW1/A. Said application has been assigned to the Field Kanungo by the then Naib Tehsildar,Kullu, as is evident from the endorsement of Naib Tehsildar,Kullu, on the said application. Said endorsement is revealing that Naib Tehsildar has called the report of Field Kanungo. There is another endorsement revealing that the demarcation report has been submitted to Naib Tehsildar by the Field Kanungo, but, there is no formal order on behalf of Naib Tehsildar or Tehsildar,Kullu, to confirm the aforesaid demarcation report. In the absence of any order from Naib Tehsildar or Tehsildar,Kullu, said demarcation report is pre-mature and it's benefit cannot be given to the plaintiff. Moreover, the careful perusal of demarcation report and cross-examination of Field -Kanungo, it is clear that he has not mentioned how and in what manner , the measurement was carried out and how the 8. DSL: Hydro Project Pvt.Ltd. Vs. Budh Ram. Civil Appeal No.8 of 2018. Registration No.15/2019. CNR No. HPKU01-001685-2019. khasra numbers were measured. The said demarcation report is not revealing whether before starting the measurement, three pucca points were located. There is nothing, on record, to suggest, whether land-holders of adjoining khasra numbers were present or not. Thus, the Field Kanungo has not followed the procedure established under law to carry out the demarcation. On this ground also, the demarcation report, Ex.PW1/B, is not sustainable. On the top of it, as discussed herein above, Field Kanungo has not prepared any tatima of the spot, in the light of which, enforceable decree for possession can be passed. 16. However, as discussed herein above, the possession of defendant is that of a assignee or licensee on behalf of other co-sharers, who are having half share in the suit land. So, the defendant can use half share of the suit land. The plaintiff has alleged that defendant has raised construction of pillar and laid down pan-stock pipe on the middle of the suit land, but, plaintiff could have restrained the defendant from constructing pillar or laying of pan-stock pipes in the middle of the suit land by filing suit for permanent prohibitory injunction, restraining the defendant from materially impairing the value and utility of joint land. Plaintiff could have pleaded that defendants were intending to use suit land in such a manner to diminish the value and utility of half share of plaintiff, but, no such suit was filed by the plaintiff. I am of the considered opinion that frame of present suit is not proper, as such, the suit for possession is not maintainable qua the undivided half share of plaintiff against the assignee and licensee of other co-shares. If , plaintiff wanted to remove the aforesaid pillar and pan-stock pipes of defendant, then, the proper remedy is to file a suit for partition against the fellow co-sharers as aforesaid construction of pillar and laying down of pipe has been done by the defendant with the consent of 9. DSL: Hydro Project Pvt.Ltd. Vs. Budh Ram. Civil Appeal No.8 of 2018. Registration No.15/2019. CNR No. HPKU01-001685-2019. other co-sharers and the other co-sharers have allowed the defendant to do the aforesaid construction. In case , the construction of defendant over the suit land is more than half share, then, at the relevant time, plaintiff could have filed a suit for permanent prohibitory injunction restraining the defendant from exceeding to half share of his fellow co-sharers and to encroach upon his half share. But, no such suit for injunction was filed by the plaintiff. As a result, the present suit for possession of undivided half share is not maintainable. 17. Hence, for the aforesaid reasons, definitely, learned trial Court has failed to appreciate the pleadings as well as evidence of the parties and has arrived at wrong conclusion by decreeing the suit qua possession of undivided half share of the defendant. Hence, the judgment and decree passed by the learned trial Court are not sustainable under law. Accordingly, this point is answered in the negative. FINAL ORDER: 18. The cumulative effect of the aforesaid discussion and findings is that the appellant succeeded in the present appeal. Accordingly, the appeal is allowed. The impugned judgment and decree , dated 26.4.2019, passed by the trial court is set aside and the suit filed by the plaintiff/respondent is dismissed. Parties shall bear their own costs. Decree sheet be drawn. 19. The record of the trial Court be returned along with a copy of judgment . The appeal file, after due completion be consigned to Record-Room. Announced in the open Court this 18th December, 2019. (Purender Vaidya), District Judge , [Jeet]. Kullu, Distt. Kullu, (H.P.) 10. DSL: Hydro Project Pvt.Ltd. Vs. Budh Ram. Civil Appeal No.8 of 2018. Registration No.15/2019. CNR No. HPKU01-001685-2019. 2018-03-07 11:42:11 IST 2019-12-18T14:25:01+0530 2020-03-07 11:42:11 IST |
Frequently Asked Questions
The Petitioner in case Dsl Hydro Project Pvt. Ltd. vs Budh Ram is Dsl Hydro Project Pvt. Ltd..
The Respondent in case Dsl Hydro Project Pvt. Ltd. vs Budh Ram is Budh Ram.
The case against Budh Ramwas filed on 03-07-2019 by Dsl Hydro Project Pvt. Ltd..
The status of case Dsl Hydro Project Pvt. Ltd. against Budh Ram is Case Disposed.