It is more than settled that the pleas of estoppel,
acquiescence etc. have to be specifically pleaded and proved. It would be
noticed that no specific plea to this effect has been raised by the
appellants/defendants before the trial Court nor has any such plea been
taken even before the first Appellate Court and thus the appellants are
precluded from raising this plea for the first time in the instant appeal.
12. As regards equity, it is more than settled that a trespasser or
encroacher has no equity in his favour and even the principles of estoppel
by conduct or principle of standby or principle of waiver or acquiescence
is not applicable in such cases. Equity cannot be extended to a party who
has committed deliberate acts and such acts are not bona fide either as
encroacher or as a mere trespasser. Equity principle cannot be stretched
too far and at any rate cannot be made applicable to the facts of the
present case.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 4172 of 2013
Dated: 1st March, 2017.
Bishamber Singh and others
V
Rajinder Singh
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Citation: AIR 2017 HP61
The defendants are the appellants and have come up in
appeal against concurrent findings recorded against them by the learned
Courts below.
2. The facts as necessary for the adjudication of the case are
that the respondent/plaintiff (hereinafter referred to as the ‘plaintiff’) filed a
suit for vacant possession of the land to the effect that he is owner of the
land comprised in Khata No. 27 min, Khatauni No. 53, Khasra No. 1006,
measuring 0-07-932 HM, situated in Mohal Bhapoo, Tehsil Indora, District
Kangra, H.P. to the extent of ½ share and as such, the plaintiff asserts
himself to be co-sharer to the extent of ½ share in the suit land. As per
the plaintiff, the defendants are strangers having no right, title or interest
in the suit land, but the defendants out of high handedness encroached
upon the suit land by raising construction. It was averred that in October,
2007 when the defendants started covering the area by fencing, he
applied for demarcation of his land i.e. Khasra No.1006 and upon
demarcation conducted by Kanungo on 25.10.2007, it was found that the
defendants had encroached upon the land of the plaintiff to the extent of
0-01-16 HM i.e. the suit land. Thus, on the basis of demarcation
conducted by the Kanungo and confirmed by A.C. IInd Grade on
13.11.2007, the plaintiff as co-owner seeks possession of the suit land
from the defendants.
3. The suit was opposed by the defendants by filing written
statement. It was averred that they have constructed their house in
Khasra No. 1016. It was alleged that the said demarcation was wrong
and the correction application has been filed by the defendants. However,
the defendants did not claim any title or adverse interest to the ownership
of the plaintiff, but denied the correctness of the demarcation report and
prayed for dismissal of the suit.
4. From the pleadings of the parties, the learned trial Court on
21.03.2009 framed the following issues:
1. Whether plaintiff alongwith other cosharers are owners of the
suit land, as alleged? OPP.
2. Whether the defendants have encroached upon the part of
the suit land despite being strangers to the same, as
alleged? OPP.
3. Whether the plaintiff is entitled to the relief of possession qua
the suit land against the defendants by way of demolition, as
alleged? OPP.
5. Whether the plaintiff has no cause of action or locus-standi,
as alleged? OPD.
6. Whether the plaintiff is guilty of suppression of facts> OPD
7. Whether the suit is not properly valued for the purpose of
Court fees and jurisdiction, as alleged? OPD.
8. Relief.
5. The learned trial Court vide judgment and decree dated
28.03.2011 decreed the suit of the plaintiff. The appeal filed by the
defendants against the judgment and decree dated 28.03.2011 of the
learned trial Court, resulted in dismissal and this is how the defendants
are before this Court by way of the present regular second appeal.
6. On 27.3.2014, this Court admitted the appeal on the
following substantial questions of law:
“1. Whether the Courts below have failed to decide the
issues No.4 and 5 in their legal and proper sense as inspite
of the specific allegation by the plaintiff that encroachment
has been done on a particular date but since the plaintiff has
failed to prove this part of the pleadings as such the suit of
the plaintiff was required to be dismissed being not
maintainable and without any cause of action in favour of the
plaintiff?
2. Whether the Courts below have failed to take into
consideration the principle of acquiescence and equity while
passing the decree of possession whereas, the plaintiff could
have been compensated in the terms of money qua the area
found being encroached by the defendants and the
demolition order of the house where the defendants are
residing could have been avoided?”
I have heard learned counsel for the parties and gone
through the records of the case carefully.
Substantial question of law No.1.
7. The issues No.4 and 5, read thus:
“4. Whether the suit is not maintainable, as alleged? OPD.
5. Whether the plaintiff has no cause of action or locusstandi,
as alleged? OPD.”
8. As would be evident from the aforesaid issues, the onus to
prove the same was upon the defendants/appellants and not upon the
plaintiff/respondent. The issues No.4 and 5 have been answered by the
learned trial Court in the following manner:
“ISSUE NO.4:
“12. The onus to prove this issue was upon the defendants.
There is no specific evidence on this issue. It is not stated as
to how the suit is not maintainable. Further, this issue was
not pressed at the time of arguments. Accordingly, my
findings on this issue are in the negative and against the
defendants.
ISSUE NO.5:
13. The onus to prove this issue was upon the defendants.
There is no specific evidence on this issue. It is not stated as
to how the plaintiff has no cause of action or locus-standi to
file the present suit. Further this issue was not pressed at the
time of arguments. Accordingly, my findings on this issue are
in the negative and against the defendants.”
9. Even before this Court, though strenuous efforts has been
made by learned Senior Counsel to contend that it was for the
plaintiff/respondent to prove the encroachment, particularly, when he had
made specific averments to that effect. But, I find that the said contention
has virtually nothing to do with the findings recorded on issues No.4 and
5.
10. As regards the encroachment, it would be noticed that the
suit land was demarcated by PW-2 Chain Singh on 25.10.2007 and after
conducting the demarcation, he prepared his report Ext.PW-2/B. This
report was submitted on the basis of the application Ext. PW-2/A and
importantly, the said report has attained finality and was not assailed. In
the demarcation so conducted the land measuring 0-01-16 HM was found
in wrongful possession of the appellants. Importantly, it is mentioned in
the report that the defendants/appellants were satisfied with the
demarcation, but had sought 15 day’s time for effecting a compromise.
This is clearly borne out from the note appended with the demarcation
report as also in the statement of defendant/appellant Bishamber Singh
recorded at the time of demarcation. Once, there is no objection to the
demarcation report, the same has concededly been accepted. Thus, I see
no illegality much less perversity in the concurrent findings regarding the
defendants being encroacher as recorded by the learned trial Court.
Substantial question of law No.2:
11. It is more than settled that the pleas of estoppel,
acquiescence etc. have to be specifically pleaded and proved. It would be
noticed that no specific plea to this effect has been raised by the
appellants/defendants before the trial Court nor has any such plea been
taken even before the first Appellate Court and thus the appellants are
precluded from raising this plea for the first time in the instant appeal.
12. As regards equity, it is more than settled that a trespasser or
encroacher has no equity in his favour and even the principles of estoppel
by conduct or principle of standby or principle of waiver or acquiescence
is not applicable in such cases. Equity cannot be extended to a party who
has committed deliberate acts and such acts are not bona fide either as
encroacher or as a mere trespasser. Equity principle cannot be stretched
too far and at any rate cannot be made applicable to the facts of the
present case.
Both the substantial questions of law are answered
accordingly.
13. There is no impropriety, illegality or irregularity much less
perversity in the findings recorded by the learned Courts below and the
same are based on proper appreciation of the pleadings as also the
evidence and the law on the subject.
Having said so, I find no merit in this appeal and the same is
accordingly dismissed, leaving the parties to bear their own costs. The
pending application(s) if any, stands disposed of.
1st March, 2017. ( Tarlok Singh Chauhan )
acquiescence etc. have to be specifically pleaded and proved. It would be
noticed that no specific plea to this effect has been raised by the
appellants/defendants before the trial Court nor has any such plea been
taken even before the first Appellate Court and thus the appellants are
precluded from raising this plea for the first time in the instant appeal.
12. As regards equity, it is more than settled that a trespasser or
encroacher has no equity in his favour and even the principles of estoppel
by conduct or principle of standby or principle of waiver or acquiescence
is not applicable in such cases. Equity cannot be extended to a party who
has committed deliberate acts and such acts are not bona fide either as
encroacher or as a mere trespasser. Equity principle cannot be stretched
too far and at any rate cannot be made applicable to the facts of the
present case.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 4172 of 2013
Dated: 1st March, 2017.
Bishamber Singh and others
V
Rajinder Singh
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Citation: AIR 2017 HP61
The defendants are the appellants and have come up in
appeal against concurrent findings recorded against them by the learned
Courts below.
2. The facts as necessary for the adjudication of the case are
that the respondent/plaintiff (hereinafter referred to as the ‘plaintiff’) filed a
suit for vacant possession of the land to the effect that he is owner of the
land comprised in Khata No. 27 min, Khatauni No. 53, Khasra No. 1006,
measuring 0-07-932 HM, situated in Mohal Bhapoo, Tehsil Indora, District
Kangra, H.P. to the extent of ½ share and as such, the plaintiff asserts
himself to be co-sharer to the extent of ½ share in the suit land. As per
the plaintiff, the defendants are strangers having no right, title or interest
in the suit land, but the defendants out of high handedness encroached
upon the suit land by raising construction. It was averred that in October,
2007 when the defendants started covering the area by fencing, he
applied for demarcation of his land i.e. Khasra No.1006 and upon
demarcation conducted by Kanungo on 25.10.2007, it was found that the
defendants had encroached upon the land of the plaintiff to the extent of
0-01-16 HM i.e. the suit land. Thus, on the basis of demarcation
conducted by the Kanungo and confirmed by A.C. IInd Grade on
13.11.2007, the plaintiff as co-owner seeks possession of the suit land
from the defendants.
3. The suit was opposed by the defendants by filing written
statement. It was averred that they have constructed their house in
Khasra No. 1016. It was alleged that the said demarcation was wrong
and the correction application has been filed by the defendants. However,
the defendants did not claim any title or adverse interest to the ownership
of the plaintiff, but denied the correctness of the demarcation report and
prayed for dismissal of the suit.
4. From the pleadings of the parties, the learned trial Court on
21.03.2009 framed the following issues:
1. Whether plaintiff alongwith other cosharers are owners of the
suit land, as alleged? OPP.
2. Whether the defendants have encroached upon the part of
the suit land despite being strangers to the same, as
alleged? OPP.
3. Whether the plaintiff is entitled to the relief of possession qua
the suit land against the defendants by way of demolition, as
alleged? OPP.
5. Whether the plaintiff has no cause of action or locus-standi,
as alleged? OPD.
6. Whether the plaintiff is guilty of suppression of facts> OPD
7. Whether the suit is not properly valued for the purpose of
Court fees and jurisdiction, as alleged? OPD.
8. Relief.
5. The learned trial Court vide judgment and decree dated
28.03.2011 decreed the suit of the plaintiff. The appeal filed by the
defendants against the judgment and decree dated 28.03.2011 of the
learned trial Court, resulted in dismissal and this is how the defendants
are before this Court by way of the present regular second appeal.
6. On 27.3.2014, this Court admitted the appeal on the
following substantial questions of law:
“1. Whether the Courts below have failed to decide the
issues No.4 and 5 in their legal and proper sense as inspite
of the specific allegation by the plaintiff that encroachment
has been done on a particular date but since the plaintiff has
failed to prove this part of the pleadings as such the suit of
the plaintiff was required to be dismissed being not
maintainable and without any cause of action in favour of the
plaintiff?
2. Whether the Courts below have failed to take into
consideration the principle of acquiescence and equity while
passing the decree of possession whereas, the plaintiff could
have been compensated in the terms of money qua the area
found being encroached by the defendants and the
demolition order of the house where the defendants are
residing could have been avoided?”
I have heard learned counsel for the parties and gone
through the records of the case carefully.
Substantial question of law No.1.
7. The issues No.4 and 5, read thus:
“4. Whether the suit is not maintainable, as alleged? OPD.
5. Whether the plaintiff has no cause of action or locusstandi,
as alleged? OPD.”
8. As would be evident from the aforesaid issues, the onus to
prove the same was upon the defendants/appellants and not upon the
plaintiff/respondent. The issues No.4 and 5 have been answered by the
learned trial Court in the following manner:
“ISSUE NO.4:
“12. The onus to prove this issue was upon the defendants.
There is no specific evidence on this issue. It is not stated as
to how the suit is not maintainable. Further, this issue was
not pressed at the time of arguments. Accordingly, my
findings on this issue are in the negative and against the
defendants.
ISSUE NO.5:
13. The onus to prove this issue was upon the defendants.
There is no specific evidence on this issue. It is not stated as
to how the plaintiff has no cause of action or locus-standi to
file the present suit. Further this issue was not pressed at the
time of arguments. Accordingly, my findings on this issue are
in the negative and against the defendants.”
9. Even before this Court, though strenuous efforts has been
made by learned Senior Counsel to contend that it was for the
plaintiff/respondent to prove the encroachment, particularly, when he had
made specific averments to that effect. But, I find that the said contention
has virtually nothing to do with the findings recorded on issues No.4 and
5.
10. As regards the encroachment, it would be noticed that the
suit land was demarcated by PW-2 Chain Singh on 25.10.2007 and after
conducting the demarcation, he prepared his report Ext.PW-2/B. This
report was submitted on the basis of the application Ext. PW-2/A and
importantly, the said report has attained finality and was not assailed. In
the demarcation so conducted the land measuring 0-01-16 HM was found
in wrongful possession of the appellants. Importantly, it is mentioned in
the report that the defendants/appellants were satisfied with the
demarcation, but had sought 15 day’s time for effecting a compromise.
This is clearly borne out from the note appended with the demarcation
report as also in the statement of defendant/appellant Bishamber Singh
recorded at the time of demarcation. Once, there is no objection to the
demarcation report, the same has concededly been accepted. Thus, I see
no illegality much less perversity in the concurrent findings regarding the
defendants being encroacher as recorded by the learned trial Court.
Substantial question of law No.2:
11. It is more than settled that the pleas of estoppel,
acquiescence etc. have to be specifically pleaded and proved. It would be
noticed that no specific plea to this effect has been raised by the
appellants/defendants before the trial Court nor has any such plea been
taken even before the first Appellate Court and thus the appellants are
precluded from raising this plea for the first time in the instant appeal.
12. As regards equity, it is more than settled that a trespasser or
encroacher has no equity in his favour and even the principles of estoppel
by conduct or principle of standby or principle of waiver or acquiescence
is not applicable in such cases. Equity cannot be extended to a party who
has committed deliberate acts and such acts are not bona fide either as
encroacher or as a mere trespasser. Equity principle cannot be stretched
too far and at any rate cannot be made applicable to the facts of the
present case.
Both the substantial questions of law are answered
accordingly.
13. There is no impropriety, illegality or irregularity much less
perversity in the findings recorded by the learned Courts below and the
same are based on proper appreciation of the pleadings as also the
evidence and the law on the subject.
Having said so, I find no merit in this appeal and the same is
accordingly dismissed, leaving the parties to bear their own costs. The
pending application(s) if any, stands disposed of.
1st March, 2017. ( Tarlok Singh Chauhan )
No comments:
Post a Comment