Himachal Pradesh High Court
Kamal Dev And Anr. vs Hans Raj on 5 October, 1999
Equivalent citations: AIR2000HP130
Author: M.R. Verma
Bench: M.R. Verma
JUDGMENT M.R. Verma, J.
1. This appeal has been preferred by the appellants-defendants thereinafter referred to as 'the defendants') against the judgment and decree dated 16-12-1995 passed by the learned Addl. District Judge, Kangra while holding camp at Una whereby the first appeal preferred by the defendants before him has been dismissed and the judgment and decree dated 30-12-1989 passed by the learned Sub-Judge 1st Class (I), Una was confirmed.
2. Brief facts leading to the presentation of this appeal may be stated as follows :
3. The respondent-plaintiff (hereinafter referred to as 'the plaintiff) instituted a suit for permanent injunction restraining the defendants from interfering or taking forcible possession and digging out foundations or raising any sort of construction on the land marked ABCD specifically shown In red colour in the site plan filed along with the plaint forming a part of the land comprising khewat No. 360, khatauni No. 672 min. khasra No. 4343/3820 measuring 1 kanal, 11 marlas situate in village Una, Teh. and Distt. Una thereinafter referred to as 'the suit land') and in the alternative for possession through removal of the construction. Case of the plaintiff as made out in the plaint is that the suit land is owned and possessed by him. The defendants claim to have purchased khasra No. 4344/3820 measuring 14 marlas and are conspiring and threatening to encroach upon the suit land marked as ABCD in the site plan forming part of khasra No. 4343/ 3820 and are also threatening to dig out the foundations and raise construction forcibly, illegally, unauthorisedly and without the consent of the plaintiff and are collecting build-Ing material, though they have no right and interest in the suit land. The defendants were asked to refrain from their unlawful acts but they have refused to accede to the requests of the plaintiff. Hence the suit.
4. The defendants filed written statement and contested the claim of the plaintiff. Their case is that they have purchased land comprising khasra No, 4344/3280 and are in possession thereof. After purchasing the said land they got it demarcated in the presence of the plaintiff who admitted the demarcation correct and boundary stones were put up on the spot. It has been denied that site ABCD as shown in the site plan Is a part of khasra No. 4343/3820 and that it has been done so wrongly by forging the karukans of the field of the plaintiff and the matter is under Inquiry with the settlement authorities. It has further been claimed that the foundations have been dug at the spot and that the defendants have a right to do so. It has further been claimed that the defendants never encroached upon the land of the plaintiff nor they have any intention to do so. Hence the entire claim has been denied.
5. The plaintiff filed replication wherein the grounds of defence as taken in the written statement have been denied and the claim as made out in the plaint has been re-affirmed.
6. On the pleadings of the parties, the learned trial Judge framed the following Issues :
1. Whether area marked ABCD as shown in the site plan Is part of khasra No. 4343/ 3820 as alleged? OPP.
2. Whether the plaintiff is entitled for the relief claimed? OPP.
3. Relief.
7. Vide judgment dated 30-12-1989, the learned trial Judge decided both the Issues in favour of the plaintiff and decreed the suit for the alternative relief of possession of the suit land through removal of construction raised thereon with costs.
8. Feeling aggrieved, the defendants preferred an appeal in the Court of the learned District Judge, Una which came to be decided by the learned Addl. District Judge, Kangra, while holding camp at Una. By the impugned judgment, the learned Addl. District Judge dismissed the appeal and affirmed the judgment and decree passed by the trial Court.
9. Feeling aggrieved, the defendants have preferred the present appeal.
10. I have heard the learned counsel for the parties and have also gone through the record.
11. This appeal has been admitted for hearing on the following substantial questions of law :
"1. Whether the Local Commissioner can violate the instructions issued by the Financial Commissioner and adopted in the High Court Rules and Orders or not? If violated, what is its effect?
2. Whether the instructions are obligatory in nature or directory?
3. Whether the measurement can be given by the Local Commissioner without taking into consideration the Mushabi or the latest revenue records?"
12. The answer to all the aforesaid questions depends on the interpretation of instructions and guidelines issued by the Financial Commissioner. Punjab in exercise of the powers under Section 100 of the Punjab Land Revenue Act (corresponding to Section 106 of the H.P. Land Revenue Act). These Instructions form part of the Rules and Orders of the Punjab High Court Vol. I. It is not disputed that Vol. 1 of the said Rules and Orders has in its application been adopted in Himachal Pradesh also. The instructions which are now contained in Chapter I-M of the said Rules and Orders reads as follows :
"I. If a boundary is in dispute the Field Kanungo should relay it from the village map prepared at the last settlement. If there is a map which has been made on the square system he should reconstruct the square in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares, he should with his scale read on the map the position and distance of those points from line of a square and then with a chain and cross staff mark put the position and distance of those points. Thus, he can set out all the points and boundaries which are shown in the map. But if there is not a map on the square system available, he should then find three points on different sides of the place in dispute as near to it as he can, and, if possible, not more than 200 Kadams apart, which are shown in the map and which the parties admit to have been disturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances when thus compared agree in all cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. He will then lay them out with the cross staff as before and test the work by seeing whether the distance from one of his marks to another is the same in the map. If there is only a small dispute as to the boundary between two fields, the greater part of which is undisturbed, then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map.
II. In the report to be submitted by him, the Kanungo must explain in detail how he made his measurement. He should submit a copy of the relevant portion of the current settlement field map of the village showing the fields if any with their dimensions (Karu Kan) of which he took measurement situated between the points mentioned in Instruction I above and the boundary in dispute. This is necessary to enable the Court to follow the method adopted and to check the Field Kanungo's proceedings.
III. If a question is raised as to the position of the disputed boundary according to the field map of the settlement proceedings of the current settlement, that also should be demarcated on the ground so far as this may be possible and also shown In the copy of the current field map to be submitted under Instruction No. II.
IV. On the same copy should be shown also the limits of existing possession.
V. The areas of the fields abutting on the boundary in dispute as recorded at the time of that settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Field Kanungo's report with an explanation of the cause of increase or decrease if any discovered.
VI. When taking his measurement the field Kanungo should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to elucidate the matter in dispute. At the end he should record the statements of all the parties to the effect that they have seen and understood the measurements, they have no objection to make to this (or if they have any objection, he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court one or other party impugns the correctness of the measurement and asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent.
VII. The above instructions should be followed by Revenue Officers or Field Kanungo's whenever they are appointed by a Civil Court Commissioners in suits involving disputed boundaries."
13. Be it stated that demarcation of boundaries of a holding, field or any other portion of an estate is a statutory function of quasi-judicial nature of the Revenue Officer and the above instructions, in view of their adoption for Himachal Pradesh, evidently to fulfil the requirements of Section 106 of the H.P. Land Revenue Act, have statutory sanction. Therefore, it is necessary for a Revenue Officer to discharge his function of demarcation of land in accordance with the said instructions.
14. A Division Bench of this Court while dealing with the necessity of compliance of these Instructions in case State of H.P. v.
Laxmi Nand, (1992) 2 Sim LC 307, has held as under :
"16. Demarcation of boundaries of any holding, field or any portion of any other estate under Section 107 of the Act is otherwise a statutory function of quasi-judicial nature of the Revenue Officer, as held in Radha Soami Satsang Beas through Shri Madan Gopal Singh v. State of H.P., ILR (1984) HP 317 : (AIR 1985 Him Pra 15). Since the function to demarcate the limits of any holding or field is a statutory function of a quasi-Judicial nature, it is, therefore, absolutely necessary for the Revenue Officer, while carrying out demarcation, to perform the function in accordance with the instructions and guidelines, which have been issued by the Financial Commissioner under the powers contained in Section 106 of the Act meticulously without any deviation therefrom, since it also affects valuable rights of the estate right holders. The report of demarcation on the face of it must show that all precautions which are required to be taken as per the instructions were taken, so as to enable the Court, when the report comes before it to follow the method adopted by the Revenue Officer while carrying out demarcation and to find out that no mistake has been committed in doing so, so as to avoid the possibility of any error having crept in."
15. Thus, the compliance of these instructions regarding demarcation of land has been held to be absolutely essential. The ultimate object of these instructions, no doubt, is to lend credibility to the correctness of the demarcation.
16. The question for determination before this Court is slightly different, than the one which finds answer in the above decision. Such question is whether non-compliance of these instructions or any of them will vitiate the demarcation as a whole?
17. The instruction No. I supra prescribes the manner of actual demarcation of the land. There does not appear to be any other alternative recognised method of demarcation of land to ensure its correctness, therefore, prescribing the only approved method of demarcation of land, this instruction is required to be essentially complied with failing which the demarcation will be vitiated.
18. The preparation and submission of the report as to the manner of carrying out the demarcation is the natural and lawful incident of orders of the Court. However, the instructions Nos. II to VI supra regarding the manner in which such report is to be pre-pared though necessary to be complied with as a matter of prudence and with a view to enable the Court to scrutinise the method adopted and proceedings carried out to demarcate the land and to arrive at a decision whether the demarcation was carried out correctly or not, but non-compliance of these instructions or any of them while preparing the report in itself will not vitiate the proceedings of the demarcation as a whole as the Court has the power to get the requisite clarification by examining the Revenue Officer who carried out the demarcation as and when objection(s) is raised by the aggrieved party to the proceedings of demarcation.
19. As a result what can be held is that once there has been proper compliance of the instruction No. I, the fault found in the compliance of other instructions will not vitiate the demarcation proceedings as a whole.
20. The learned counsel for the defendants has contended that the report of the Commissioner dated 10-6-1986 is vitiated due to non-compliance of the aforesaid Instructions. It has been pointed out that (i) statements of the parties as required under the Instructions were not recorded nor objections about the demarcation were called for and recorded, (ii) the three 'Pucca' points were not fixed, (iii) the demarcation was not carried out as per the latest record, and (iv) the correct measurement of the road abutting the suit property was not taken into account and the demarcation was based on wrong "Karukans".
21. Be it stated that when the report of the Local Commissioner dated 10-6-1986 was received by the trial Court, the defendants filed objection petition dated 28-8-1986 against the report. No objection therein was taken regarding failure of the Local Cqmmis-sioner to record the statements of the parties though appears to have been canvassed at the time of arguments on such objections. The object of recording such statements is only to find out whether the demarcation is acceptable to the parties or not or they have any objection to it. Since the defendants have subsequently the opportunity to have their say in the form of objections against the demarcation, thus, the lapse of not recording such statements had not caused any prejudice to the defendants. Therefore, the non-recording the statements of parties by the Local Commissioner does not vitiate the demarcation.
22. Regarding the submission that 'Pucca' points were not fixed, the trial Court repelled the objection and rightly so in view of the statement of the Local Commissioner (OW-1) who has in his report as also in his statement given the details about the fixing of three 'Pucca' points after due measurements and checking. It has not been suggested to the Local Commissioner that he did not fix three 'Pucca' points. It is in his report that first 'Pucca' point determined by him was "All Agreed Mustaquil Point". Thus, the first 'Pucca' point was agreed to be the "Mustaquil" (Pucca/fixed) point by all who were present which apart from the revenue officials included the parties, counsel for the plaintiff and 9 right holders of the adjoining land. One of the objectors, namely, Kamal Dev (OW-2) in his statement in support of the objections filed, has nowhere stated that 'Pucca' points were not fixed during the demarcation proceedings. He has taken the stand that he was not informed about the demarcation and reached there per chance. He has blown hot and cold some-time admitting his presence at the demarcation and some-times denying it. In the objection petition it is not averred that the defendants had no notice of date and time of demarcation or that the defendants were not present at the time of demarcation. The objection raised, therefore, is without any substance.
23. The next submission that demarcation was not carried out as per the latest material record is also not sustalnable. Instruction No. I ibid requires that the demarcation is to be made on the basis of the village map (Shajra) prepared at the last Settlement. It is evident from the statement of the Local Commissioner (OW-1) that the demarcation was carried out by him on the basis of 'Shajra' of 1912-13 though to verify the correctness of the 'Pucca' points, he took into account other documents also. At the relevant time the 'Shajra' used for demarcation was of the latest Settlement. Thus, the contention that the latest record was not used in demarcation does not in any way show that at the demarcation there had been violation of Instruction No. I ibid.
24. The last contention about not taking correct measurement of the road and reliance on wrong 'Karukans' by the Local Commissioner is equally baseless and without merit. It has been stated by the Local Commissioner (OW-1) that the average width of the road as per the old and new records was found 5 'Karams', i.e. about 22.5 feet. Defendant Kamal Dev (OW-2) when specifically asked about the width of the road, has stated that he is not aware of it. It is not in the objection petition that the width of the road is 10 'Karams' and not 5 'Karams' nor there is any objection that at the time of demarcation width of the road was wrongly taken into account. Thus, this objection based on a question of fact, cannot be even otherwise permitted to be raised in second appeal. In any case, it is not shown that the width of the road was involved for demarcation or that such width was not taken into account as per its correct measurement. It may be pointed out that the plaintiff has got approved the proposed house plan Ext. FW-3/A to raise construction on the land in suit. In this plan the width of the road has been shown as six metres which works out to approximately a little less than 20 feet. The plaintiff having done so, cannot claim that the width of the road is 45 feet. The objection raised is only for the sake of objection. If he has raised the construction as proposed by him vide Ext. PW-3/A and as per his saying, the width of the road is 10 'Karams' then his construction would have extended over the width of the road to the extent of about 25 feet. But this is not the case of any one. It is, thus, not established that the width of the road has not been taken into account as per its correct measurement. The objection, therefore, does not render the demarcation by the Local Commissioner as Invalid or illegal.
25. The objection as raised in para 3 of the objection petition about 'Karukans' is incomplete. What emerges from a reading of para 4 of the objection petition Is that the 'Karukans' of Khasra No. 4343/3820, i.e. the land in suit, has wrongly been counted as 13 instead of 10. The allegation is not supported by anything on the record. On the contrary, the Local Commissioner (OW-1) has stated that he had taken into account 9 and 10 'Karams' respectively on the east and west side of the land of plaintiff and 4 and 3 'Karams' respectively on east and west side of the land of the defendants. These are the 'Karukans' mentioned in the Tatimas' Exts. 0-1 and D-3 relied upon by the defendants and even in his statement as OW-2 Kamal Dev has admitted that land Khasra No. 4344/3820 owned by the defendants is 4 'Karams' in the east and 3 'Karams' in the west. The 'Karukans' of the entire Khasra No. 96 old were taken into account by the Local Commissioner as per the 'Shajra' of the last settlement 1912-13 as stated by him. Therefore, the contention that the demarcation is vitiated because of the counting of the 'Karukans' wrongly, also does not hold ground.
26. In view of the above, the demarcation carried out by the Local Commissioner and his report about such demarcation cannot be said to be invalid or vitiated on the grounds urged to prove it to be so. The Courts below have rightly repelled the objections raised against the manner of the demarcation carried out by the Local Commissioner.
27. It was further contended for the defendants that their application under Order 41, Rule 27 of the Civil Procedure Code for leading additional evidence has wrongly been dismissed by the lower appellate Court which has materially effected the case of the defendants and that the said application may be allowed in the interest of justice.
28. By the said application the defendants wanted to produce copies of the revenue papers/records. The learned Additional District Judge dismissed the application on the grounds that the 'additional evidence' would not serve any purpose rather prolong the proceedings, the defendants had throughout been negligent and if allowed to lead additional evidence, that would be filling up the lacunae in the case. It was also found that the field-book, a copy whereof was sought to be produced in evidence, was in torn condition and having certain illegible entries.
29. All the documents sought to be produced by way of additional evidence were available at the time and even before that when the defendants led evidence before the trial Court. Those were despite availability not produced in evidence at the relevant time. The application states that these could not be produced despite diligence. It is neither averred nor contended as to what steps were taken by the defendants to procure the documents to show any diligence on their part to produce this evidence at the appropriate stage. One of the documents sought to be produced, is a copy of the record which is no more bound and consists of leaves some of which are torn and in some the contents are not legible and in no way decipherable. This condition is as in the year 1991. It is not averred in the application as to what is sought to be proved by production thereof except that their production was necessary to enable the Court to know the real controversy between the parties and for just decision of the case. Controversy in a given case is made known to the Courts by pleadings and not by additional evidence. There is no dispute of title with regard to a particular land based on the documents sought to be produced in evidence. The dispute is about boundary which can be best determined by demarcation which has already been carried out on the basis of material papers/records. The Court is not bound to allow additional evidence and parties are not entitled as of right to the admission of additional evidence. The matter is entirely in the discretion of the Court. The lower appellate Court exercised its discretion in favour of dismissal on the grounds already stated above. The reasons recorded cannot be said to be illegal or perverse. Therefore, the discretion as exercised by the first appellate Court, does not call for any interference.
30. The other questions involved are questions of facts and findings thereon as recorded by the Courts below do not call for any interference.
31. As a result, the appeal fails and is accordingly dismissed. The parties to bear their own costs.