Himachal Pradesh High Court
Kamla (Deceased) Through Her Lrs' Babu ... vs Sant Ram on 24 October, 2018
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.177 of 2007.
Reserved on : 25.9.2018.
Date of Decision : 24th October, 2018.
.
Kamla (Deceased) through her LRs' Babu Ram and others ...Appellants.
Versus
Sant Ram ...Respondent
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the appellants : Mr. Bhupender Gupta, Sr. Advocate with Ms. Poonam Gehlot, Advocate.
For the respondent : Mr. Lovneesh Kanwar, Advocate.
Chander Bhusan Barowalia, Judge.
By way of the present appeal, the appellants have challenged the judgment and decree passed by the Court of District Judge, Solan, (H.P), in Civil Appeal No.7-S/13 of 2006, dated 22.7.2006, vide which, the learned lower Appellate Court, has set aside the judgment and decree passed by the learned Civil Judge (Senior Division) Kandaghat, camp at Solan, in Civil Suit No.23-S/1 of 2005/98, dated 9.12.2005
2. Material facts necessary for adjudication of this Regular Second Appeal are that appellants/plaintiffs (hereinafter referred to as 'plaintiffs') maintained a suit for possession of land comprised in Khata/Khatauni No.9/11 min, denoted by Khasra No.53/2, measuring 6- 15 bighas, situated in Mauza Dawan Dhar, Pargana Kuintan-II, Tehsil 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 25/10/2018 22:56:32 :::HCHP 2and District Solan, H.P (hereinafter referred to as 'suit land'). The suit land is owned and possessed by the plaintiffs, their predecessor-in-
interest and the defendant is owner-in-possession of adjoining land.
.
The defendant has made claim qua his land in the month of March, 1996 and started cultivating a portion of suit land claiming to their own land. The plaintiffs and their predecessor-in-interest made several request to the defendant against such occupation of the portion of the land, but the defendant insisted that the disputed portion belongs to them and they would not leave the possession unless a formal demarcation is made. After the demarcation, it was found that the defendant had encroached upon 08 biswas of land, denoted by Khasra No.53/2/1, as shown in Naksha Tafawat, but later on, defendant refused to handover the possession.
3. Defendant contested the suit and filed written statement whereby he has submitted that the plaintiffs are estopped by their act and conduct from filing the present suit and they have no locus standi to file the present suit. On merits, the defendant has specifically pleaded that neither the plaintiff nor their predecessor-in-interest had been coming, as owner, do not depict true and correct position and the same are wrong, contrary to factual position existing on the spot. The disputed portion is owned and possessed by the defendant and they have claiming so since the time immemorial. The defendant has admitted that demarcation was carried out by Field Kanungo on ::: Downloaded on - 25/10/2018 22:56:32 :::HCHP 3 19.7.1996, but claimed that the same has not been carried out, as per the instructions issued by the Financial Commissioner. The entire land was owned by the predecessor-in-interest of the defendant and their .
exists a village path, which was not recorded in the revenue papers and running from Village Dawan Dhar to Jauna Ji. The predecessor-in-
interest of the plaintiffs were tenant on portion of land situated on the upper side of the path.
4. From the pleadings of parties, the learned trial Court framed following issues :
"1. Whether the plaintiffs are owner-in-possession of the suit land as alleged ? OPP.
2. Whether the defendants have encroached 8 biswas of land denoted by Khasra No.53/2/1 as mentioned in Naksha Tafawat as alleged ? OPP
3. If above issue is proved, whether the plaintiff is entitled for possession of encroached land ? OPP.
4. Whether the plaintiffs are estopped from filing the suit as alleged ? OPD.
5. Whether the plaintiffs have no locus standi to file the suit ? OPD.
6. Whether the defendant has become owner of the portion of suit land as alleged by way of adverse possession ? OPD.
7. Relief."
5. The learned trial Court while deciding Issues No.1 to 3 in affirmative, Issue No.4 to 6 in negative, decreed the suit.
6. Feeling aggrieved thereby the defendant maintained first appeal before the learned District Judge, Solan, H.P, assailing the ::: Downloaded on - 25/10/2018 22:56:32 :::HCHP 4 findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court set aside the findings of .
the learned Court below. Now, the appellants have maintained the present Regular Second Appeal, which was admitted for hearing on 7.12.2007 on the following substantial questions of law:
" 1. Whether the Lower Appellate Court has committed grave illegality and irregularity in refusing to rely upon the demarcation report Ex.PW2/A on wrong assumptions which are the result of misreading the oral and documentary evidence, especially when the defendant- respondent failed to bring on record any other demarcation report which would have proved r the demarcation report Ex.PW2/A and copy of Musavi Ex.PW2/B to be wrong and incorrect ?
2. Whether the Lower Appellate Court has committed grave procedural illegality and irregularity in not recording any finding on Issues No.3 and 6 which were decided by the Trial Court in favour of the plaintiffs-appellants? Was not it incumbent for the Lower Appellate Court to have recorded cogent and proper reasoning in disagreeing with the findings of Trial Court on the basis of which the suit was decreed ?
3. Whether the Lower Appellate Court has acted in a highly erroneous and perverse manner in dismissing the suit without recording any finding as to how the defendant who has no title to the suit property is entitled to remain in possession thereof. The title of the plaintiff was duly established on record from the entries in the revenue record which had presumption of truth ? In absence of proof of better title by the defendant-respondent, has not the Lower Appellate Court committed grave error of jurisdiction in dismissing the suit of the plaintiff- appellants which was for recovery of possession ?"::: Downloaded on - 25/10/2018 22:56:32 :::HCHP 5
7. Mr. Bhupender Gupta, learned Senior counsel appearing on behalf of the appellants has argued that in case, the Court was not satisfied with the demarcation report, the Court should appoint another .
Local Commissioner to demarcate the land. He has further argued that the findings recorded by the learned Court below without ordering fresh demarcation are against the law. In support of his arguments, he has relied upon the judgment in Vishwa Nath vs. State of Himachal Pradesh and another, 2016 (2) Shimla Law Cases, 1001 and Chatter Singh & anr vs. Dina Nath, AIR 2010, Himachal Pradesh, 5, on this aspect.
8. On the other hand, Mr. Lovneesh Kanwar, learned counsel appearing on behalf of the respondent has argued that no encroachment was found and the demarcation was not conducted, as per law, on which, the plaintiff has relied. He has further argued that the land with the plaintiff was exactly the same, which, he owns, as the land, which was acquired by the Public Works Department was not taken into consideration. In rebuttal, learned Senior counsel appearing on behalf of the appellants has argued that fresh demarcation may be carried out while appointing Local Commissioner and appeal may be disposed of, in accordance with law.
9. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail.
::: Downloaded on - 25/10/2018 22:56:32 :::HCHP 610. In support of their case, PW-1, Babu Ram, has specifically stated that the defendant illegally encroached upon the suit land in the month of March, 1996. In his cross-examination, he has .
stated that he has not taken demarcation of his land earlier however, Kanungo, has conducted the demarcation. He has admitted that there is 'pakka road' where a foot path was existing. He has admitted that there is one path which goes from Dawandhar to Jaunaji, but voluntarily stated that the path is about 1 K.M on the upper hill side of the disputed side. He has denied that there is one feet wide foot path in between the suit land and land of the defendant. He has denied that the defendant has planted trees on the disputed land. He has admitted that defendant is proclaiming that they are owners of the land. PW-2, Ram Saran, proved demarcation report, statement of the parties and Aks tatima Ex.PW2/A to Ex.PW2/E. He has deposed that the defendant also agreed to the demarcation. In his cross-examination, he has deposed that he has fixed three points by using triangle on Khasra No.53, but admitted that he has not taken any statement of the parties regarding three fixed points. He has also admitted that he has not shown the Khasra number, which is situated on the southern side on Khasra No.53 in the mussabi. DW-1, Sant Ram, deposed that Khasra No.53, is in their possession, which is about 6 bighas. He has denied that the plaintiffs are owner of the land comprised in Khasra No.53. He has also deposed that he never admitted the ownership of the plaintiffs ::: Downloaded on - 25/10/2018 22:56:32 :::HCHP 7 or their predecessor-in-interest on the disputed land. The defendant is owner of the suit land from the time of their fore fathers firstly as 'gair murasi' tenant and now as owner. He has admitted that one road was .
carved out from the suit land. From the evidence of plaintiff, the defendant has started encroaching upon the land in March, 1996.
Defendant stated that this land belongs to them and this way they covered 08 biswas of land. DW-2, Dila Ram, has stated that the defendant is in possession of land to the extent of 6-15 bighas.
11. From this, it cannot be said that the plaintiffs were dispossessed from the land in the year 1996, as alleged. PW-2, has deposed that the total land is measuring 6-18 bighas, whereas the actual area of the land after acquisition by the Public Works Department had been 6-15 bighas. The demarcation report does not mention the area, as acquired by the State Government. The demarcation conducted shows that he has shown 08 biswas of land, out of 6-18 bighas, having been encroached upon by the defendant. The demarcation report does not show anything with regard to 03 biswas of land. The area of 03 biswas of land was acquired by the State Government and measured the area left with the plaintiffs and found the area having been encroached by the defendant by measuring his land as well as the encroached area, as a portion of defendant's land, which is shown extended up to the land of the plaintiffs. Therefore, the demarcation report though having been made final cannot be relied ::: Downloaded on - 25/10/2018 22:56:32 :::HCHP 8 upon and has been wrongly relied. There is no convincing evidence of plaintiffs about encroachment in the year, 1996, lend corroboration to the claim of defendant to be in possession of the part of land from the .
time of his ancestors and never encroached it in the year, 1996. The fact that there were trees in the field and now only one tree is left there and this also goes to show that possession of the defendant was much prior to 1996, as plaintiffs did not state that these trees were cut by the defendant in the year 1996 or by them. It appears that it is only on demarcation that the plaintiffs had come to know that part of their land is in possession of the defendant and to seek possession they have come up with the story of their alleged dispossession in March, 1996.
Both the parties are of the same village, therefore, every one in the village would have been known about the dispossession.
12. Now, the law as cited by the learned counsel appearing on behalf of the appellant in Vishwa Nath vs. State of Himachal Pradesh and another (supra) is considered, the facts are totally different with the facts of the present case, as the case in hand, it was the Court to appoint Local Commissioner to rely upon its report, but in the present case, it is the case of plaintiff that the encroachment is there and he has said so, on the basis of some demarcation report obtained by him. It is clear that the demarcation report on the basis of which, he is forming his case that there was encroachment of 08 biswas of land and it is amply clear that some land was also acquired by the ::: Downloaded on - 25/10/2018 22:56:32 :::HCHP 9 State Government, which is not taken into consideration, the findings recorded by the learned Court below are correct and so, the judgment is not applicable to the facts of the present case, as the plaintiff has stand .
its own legs.
13. In Chatter Singh & anr. vs. Dina Nath, AIR 2010 Himachal Pradesh 5, wherein it has been held as under :
"The learned lower appellate court has rejected the application wrongly. There is no bar for appointment of local commissioner at the appellate stage. In the present case, the land was earlier got demarcated at the instance of the appellants and they were justified in bringing to the notice of the learned trial court when the respondent filed an application for demarcation that the land had already been demarcated at their instance, therefore, there was no need for fresh demarcation. The trial court had not rejected the demarcation report on the ground that some fault was committed by the appellants but demarcation report was not accepted on some technical grounds. The appellants having realized that the demarcation carried out at their instance was rejected by trial court, they again requested the learned lower appellate court to get the land demarcated, but their request was not accepted and the demarcation report Ex. PW 3/A was also not accepted by the learned lower appellate court. The learned counsel for the appellants has submitted that there is no fault of the appellants for not carrying out the demarcation properly. They got the land demarcated but unfortunately the Field Kanungo did not carry out the demarcation in accordance with law.
The learned counsel for the appellants has relied Bali Ram vs. \Mela Ram and another 2002 (3) Shim. L. C. 131 and Udai Ram and another vs. Ram Lal, Latest HLJ 2008 (HP) 296, on the point that in the given situation the learned lower appellate court should have appointed the local commissioner to carry out the demarcation of khasra No. 69/16 to find out the encroachment made by the respondent on that khasra number.
In the present case, there is a boundary dispute. The appellants have done whatever they could ::: Downloaded on - 25/10/2018 22:56:32 :::HCHP 10 do for carrying out the demarcation of the land, but for their bad luck demarcation was not carried out in accordance with law. In these circumstances, and more particularly in view of Bali Ram and Udai Ram (supra), the learned lower appellate court has erred in not .
appointing the local commissioner to carry out the demarcation to find out the encroachment, if any, made by the respondent on land comprised in khasra No. 69/16. In these circumstances, the application, dated 28.12.1994, of appellants filed by them, under Order 26, Rule 9 read with Section 151 CPC, in the learned lower appellate court is allowed. The substantial question of law No.1 is accordingly decided in favour of the appellants and against the respondent."
14. In the present case, the judgment is also not applicable to the facts of the present case, as the Court has not concluded that the demarcation was conducted properly, but in the facts and circumstances of the present case, the appellant has based his claim on the basis of some demarcation. It is clear that in demarcation, the land of the appellant, which was acquired by the State was not taken into consideration and without taken into consideration, the revenue official has shown encroachment of 08 biswas of land, which is purportedly incorrect. The cause of action has also not shown by the plaintiffs that it has occurred in his favour, so the judgment is also not applicable to the facts of the present case. In these circumstances, substantial question of law No.1, is answered holding that the learned lower Appellate Court has not rejected the demarcation report on technical grounds, but in the demarcation report, the land, which was acquired by the State Government was not taken into consideration, which was acquired from the plaintiffs. The learned lower Appellate Court has ::: Downloaded on - 25/10/2018 22:56:32 :::HCHP 11 committed no illegality, as the plaintiffs have failed to prove any encroachment qua the land, which was acquired by the State Government was not taken into consideration by the revenue official, .
who has shown encroachment of 08 biswas of land by the defendant.
The learned lower Appellate Court was not required to obtain fresh demarcation report, as it was the plaintiff, who has shown that his land was not acquired by the State Government. Substantial question of law No.2, is answered holding that the learned lower Appellate Court has given all reasoning while recording its findings and the findings are well reasoned after appreciating the evidence and pleadings, which have come on record to its true perspective. Substantial question of law No.3, is answered holding that the learned lower Appellate Court has recorded its findings after appreciating the pleadings and documents, which have come on record to its true perspective and law has been applied correctly.
15. In view of the above discussion, the appeal of the appellants is without merit, deserves dismissal and is accordingly dismissed. However, in the peculiar facts and circumstances of this case, parties are left to bear their own cost (s). Pending application (s), if any, shall also stands disposed of.
(Chander Bhusan Barowalia)
24th October, 2018 Judge
(CS)
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