K.S. MEHTA Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS is plaintiff's second appeal against the judgment and decree of the learned District Judge, Solan, reversing the judgment and decree passed in favour of the plaintiff by the learned Senior Sub Judge.

(2.) THE facts necessary for decision are that the plaintiff instituted a suit for mandatory injunction against the defendants respondents praying for a decree with costs and a direction to the defendants to remove the debris which had been dumped on her land without permission and to restore the land to its original position. Notice under Section 80 of the Code of Civil Procedure had been issued to the defendants for non compliance of the demand of the plaintiff. Hence, the suit was instituted. The plaintiff had pleaded that a Notice Board had been put up on her land by the Public Works Department stating that the place was to be used as a dumping ground for debris. The defendants, in written statement, denied the case of the plaintiff in its entirety stating that no Board had been put up by the Public Works Department and that the State was in no way responsible for dumping debris on the land. The learned trial Court framed four issues. Issue No. 1 related to the ownership rights of the plaintiff which was decided in her favour, as such ownership was neither disputed nor any evidence led to the contrary by the defendants. Issue Nos. 2 and 3 were decided together. These issues were to the effect as to whether a Board had been fixed on the plaintiff's land stating that the ground was reserved for dumping of debris and whether the plaintiff was entitled to the relief of mandatory injunction. Both these issues were decided in favour of the plaintiff and a decree for mandatory injunction was granted. The findings of the learned trial Court were based inter alia on photograph Ex.PW 5/B containing words "Site for dumping debris" and below that the words, "By Order XEN, HPPWD". The negative of the photograph was covered with dust and therefore, it was got re printed through PW 5, who was having a photo studio in Chandigarh.

(3.) WHILE deciding the case, evidence was considered in totality including the evidence of the defendants. DW 2, who stated that he was tractor driver and dumping the debris on the land of the plaintiff for which Rs. 15/ per tractor was being charged. However, when cross examined, he has admitted that the government used to dump the debris there. He also admitted that the Board as shown in Ex. PW 5/B has been fixed on the site. The relevant portion of his cross examination reads: Yeh theek hai ki pehle sarkar ke log apna malwa us jageh per fainkte the jahan Ex.PW 5/B mein Board laga tha.