Himachal Pradesh High Court
Dr. Y.S. Parmar University Of ... vs Of on 19 October, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 479 of 2006.
Reserved on 21.09.2016.
.
Decided on: 19.10.2016.
Dr. Y.S. Parmar University of Horticulture and Forestry, Nauni, through its Registrar ....Appellants.
Versus
of
Shyam Lal and others ... Respondents.
________________________________________________________ Coram rt The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 No ________________________________________________________ For the appellant : Mrs. Ranjana Parmar, Sr. Advocate with Mr. Yash Sharma, Advocate.
Respondents No. 2(a) to 2(d): Ex parte.
For respondent No. 3 : Mr. B.C. Verma, Advocate.
Ajay Mohan Goel, Judge.
By way of this appeal, the appellant-University has challenged the judgment passed by the Court of learned Additional District Judge, Solan, in Civil Appeal No. 14-S/13 of 2005, dated 06.12.2005, vide which, learned Appellate Court, while upholding the judgment and decree passed by the Court of learned Civil Judge (Jr. 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:23:42 :::HCHP 2Divn.) Solan, in Civil Suit No. 137/1/04/1996 dated 20.08.2005, dismissed the appeal so filed against the same.
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2. This appeal was admitted on 27.02.2007 on the following substantial question of law:
"Once the defendants-respondents had not disputed the identity of the suit property, were the two courts below justified in dismissing the suit of the plaintiff on the ground that the demarcation on the basis of which the appellant-plaintiff claimed the suit property forming part of of his bigger number was faulty?"
3. Brief facts necessary for the adjudication of this case are rt that the appellant-plaintiff (hereinafter referred to as 'plaintiff') filed a suit for possession by way of demolition of house illegally constructed by the defendant over 0.2 biswas of land denoted by Khasra No. 156/154/1, comprised in Khata Khatauni No. 27/37 min., (hereinafter referred to as 'suit land') out of the total land measuring 1.5 bighas as shown in Naksha Tafawat (Tatima) prepared by Field Kanungo on the spot, situated at Mauja Samroh, Pargana Kamintan (II), Tehsil and District Solan (HP). As per plaintiff-University, it was coming in possession of 1.5 bighas of land (details of which have been given above) as per copy of jamabandi for the year 1993-94 and defendant Nand Lal, in the year 1995, without any right, title and interest had illegally encroached upon 0.2 biswas of land denoted by Khasra No. 156/154/1 which was owned by the plaintiff/University and had ::: Downloaded on - 15/04/2017 21:23:43 :::HCHP 3 constructed a house thereupon. Further as per the plaintiff, despite various requests made by it through its agents and servants to the .
defendant not to encroach upon the suit land, defendant used to put off the matter on one pretext or the other. Faced with this situation, plaintiff applied for demarcation of the suit land through Assistant Collector, Grade II, Solan and accordingly on 21.09.1995, Field of Kanungo alongwith other staff, after giving due notice to the parties, demarcated the suit land. It was further the case of the plaintiff that rt during demarcation, defendant was found to have had illegally encroached upon 0.2 biswas of land of the plaintiff by way of constructing a building thereupon and a Naksha Tafawat (Tatima) was also prepared on the spot by the Field Kanungo in the presence of parties and encroached portion of land was denoted by Khasra No. 156/154/1, comprised in Khata Khatauni No. 27/37 min. which was duly shown in Naksha Tafawat. According to the plaintiff, defendant had no right to encroach upon the land of the plaintiff and the house so constructed by the defendant over the encroached portion of land deserved to be demolished. It was on these bases that suit for possession of land measuring 0.2 biswas by way of demolition of house constructed over the same by defendant was filed by the plaintiff.
::: Downloaded on - 15/04/2017 21:23:43 :::HCHP 44. The suit so filed by the plaintiff was contested by original defendant (Nand Lal) who in the written statement so filed by him .
took the stand that he was owner in possession of residential and non-
residential building including shops at village Shamror, Tehsil and District Solan, Himachal Pradesh and all the construction was carried out prior to the year 1980. It was further the case of the defendant that of he had always claimed himself to be the owner of shops and the residential house situated adjoining to Solan-Rajgarh road which were rt constructed by him and he possessed the same as owner to the knowledge of the plaintiff as well as to the knowledge of public and the claim and ownership of his continued to be enjoyed by him against the plaintiff openly and peacefully prior to the year 1980. As per defendant he had become the owner of the suit land by way of adverse possession. It was further the case of the defendant that even otherwise the plaintiff had lost right to get the structure demolished on account of its own act, conduct and acquiescence. It was further stated by defendant that demarcation was not carried out in accordance with law and Naksha Tafawat prepared by Field Kanungo was wrong.
Thus, on these bases, defendant denied the case of the plaintiff.
5. In replication, plaintiff denied that the alleged construction had been carried out by the defendant prior to the year ::: Downloaded on - 15/04/2017 21:23:43 :::HCHP 5 1980 and it was mentioned by plaintiff that encroachment upon the suit land was made by the defendant in the year 1995 and he was .
having no right, title or interest over the suit land and there was no question of defendant claiming adverse possession of the suit land qua the plaintiff. It was also denied in the replication that demarcation was not carried out in accordance with law. It is pertinent to mention here of that during the pendency of the case before the learned trial Court, original defendant Nand Lal died and his legal representatives were rt accordingly brought on record.
6. On the basis of pleadings of the parties, learned trial Court framed the following issues:-
"1.Whether the plaintiff is entitled for possession by demolishing the house illegally constructed by the defendant over 2 Biswas, as alleged? OPP.
2. Whether the defendant has become owner of the suit land by adverse possession, as alleged? OPD
3. Relief."
7. On the basis of material produced on record both ocular as well as documentary by the parties, the following findings were returned by the learned trial Court on the issues so framed:-
"Issue No.1 : No.
Issue No. 2 : No.
Relief :Suit of the plaintiff is dismissed as per operative
part of the judgment."
8. Accordingly, in light of the findings which were retuned by the learned trial Court on the issues framed by it, the suit so filed ::: Downloaded on - 15/04/2017 21:23:43 :::HCHP 6 by the plaintiff was dismissed by holding that the demarcation relied upon by the plaintiff was not carried out in accordance with law as .
was evident from the testimonies of witnesses of the plaintiff. Learned trial Court further held that defendants had failed to prove the ingredients of adverse possession as was pleaded by the original defendant. It was further held by the learned trial Court that Field of Kanungo Paras Ram, who entered the witness box as PW3, stated in the Court that he had conducted demarcation in accordance with law rt as per the order of Naib Tehsildar, Solan but in his cross examination this witness admitted that he did not record the statement of parties though he had given the details thereof in Ext. PW1/A. Learned trial Court held that this witness also admitted in cross examination that in order to clarify the pakka points, adjoining points must be measured.
Learned trial Court further held that there was a judgment passed by the Court of learned Civil Judge (Sr. Divn.) Solan, dated 18.09.2004, in case titled as Dr. Y.S. Parmar University of Horticulture and Forestry, Nauni Vs. Mohan Lal, which was produced on record as Ext. DX, in which demarcation report Ext. PW1/A being relied upon by the plaintiff was set aside by the learned Civil Judge (Sr. Divn.), Solan. Learned trial Court took note of the fact that in the said judgment it was held by the learned Civil Judge (Sr. Divn.), Solan that ::: Downloaded on - 15/04/2017 21:23:43 :::HCHP 7 Field Kanungo Paras Ram had not conducted the demarcation on the spot in accordance with law as neither the statements of parties were .
recorded by him about the fixation of points nor has he conducted the demarcation in the presence of parties. Learned trial Court further held that defendants were not able to establish the fact that they had become owners of the suit land by way of adverse possession and no of ingredients of adverse possession were established by the defendants.
9. Feeling aggrieved by the judgment passed by the learned rt trial Court, plaintiff filed an appeal and the defendants filed cross objections against the judgment and decree passed by the learned trial Court. Learned Appellate Court dismissed the appeal so filed by the plaintiff against the judgment and decree passed by the learned trial Court as well as the cross objections which were filed by the defendants against the said judgment and decree of learned trial Court.
It was reiterated by the learned Appellate Court that demarcation report dated 21.09.1995, Ext. PW1/A being relied upon by the plaintiff in fact had been set aside in earlier suit filed by the plaintiff-
University i.e. Civil Suit No. 229/1 of 2001/97 and the judgment passed by the learned Civil Judge (Sr. Divn.) in the abovementioned case had not been challenged by the University which had thus become final and conclusive against the plaintiff/University. On these ::: Downloaded on - 15/04/2017 21:23:43 :::HCHP 8 bases, it was held by the learned Appellate Court that as the demarcation report being relied upon by the plaintiff had already been .
set aside by a competent court of law and said judgment setting aside demarcation report Ext. PW1/A having attained finality, the findings recorded in this regard by the learned trial Court could not be faulted with. The cross objections filed by the defendants were also dismissed of by the learned Appellate Court. The judgments and decrees passed by learned trial Court as well as by learned Appellate Court stand assailed by rt way of this regular second appeal by the plaintiff/University only.
10. I have heard the learned counsel for the parties and I have also gone through the records of the case as well as the judgments passed by both the learned Courts below.
11. Mrs. Ranjana Parmar, learned senior counsel appearing for the appellant/University argued that as the ownership of the appellant/plaintiff over the suit land was not disputed by the defendants, therefore, dismissal of suit of the plaintiff for possession of the suit land by way of demolition of house constructed upon the same by the defendants by both the learned Courts below was not sustainable. According to Mrs. Parmar both the learned Courts below erred in dismissing the suit of the plaintiff on the ground that ::: Downloaded on - 15/04/2017 21:23:43 :::HCHP 9 demarcation, on the basis of which, appellant/University claimed the suit property was a faulty demarcation as the factum of the suit land .
belonging to the appellant/plaintiff was never disputed by the defendants.
12. In my considered view, there is no merit in the said contention of learned Senior Counsel for the appellant. The suit of the of plaintiff was based on the demarcation report Ext. PW1/A and it was on the strength of this demarcation report that it was submitted by rt plaintiff/University before the learned trial Court that the defendant had encroached upon 0.2 biswas of land by way of constructing a house over the same. In order to have had succeeded before the learned trial Court it was incumbent upon the plaintiff/University to have had proved the factum of defendant having encroached upon the suit land on the basis of demarcation report being relied upon by it, however, it remains a fact that demarcation report which was being relied upon by the plaintiff/University had already been set aside by competent Court of law i.e. Civil Judge (Sr. Divn.) Solan vide judgment dated 18.09.2004 rendered in Civil Suit No. 229/1 of 2001/97, which finding returned by the learned Civil Judge (Sr. Divn.) Solan had attained finality. In other words, the only document which was being relied upon by the plaintiff to prove encroachment made by ::: Downloaded on - 15/04/2017 21:23:43 :::HCHP 10 the defendant was a document which had been declared as bad in law in another civil suit which was filed by the same University and in .
which case also, the University had relied upon the same demarcation report. In these circumstances, according to me, the findings returned by both the learned Courts below that the demarcation being relied upon by the plaintiff had not been conducted in accordance with law of cannot be faulted with. It is well settled principle of law that he who alleges has to prove. In the present case, the onus to prove that the rt plaintiff was entitled for possession of land measuring 0.2 biswas, subject matter of the present lis, and that the same had been unauthorizedly encroached upon by the defendant who had raised a building on the same was on the plaintiff. However, the plaintiff/University miserably failed to prove this fact because the document being relied upon by it to prove this fact was a demarcation report (Ext. PW1/A) which had already been declared as null and void in Civil Suit No. 229/1 of 2001/97, titled as Dr. Y.S. Parmar University of Horticulture and Forestry, Nauni vs. Mohan Lal by the court of learned Civil Judge (Sr. Divn.), Solan vide judgment dated 18.09.2004 which had attained finality. Therefore, it cannot be said that the learned Courts below were not justified in dismissing the suit of the plaintiff on the ground that the demarcation on the basis of ::: Downloaded on - 15/04/2017 21:23:43 :::HCHP 11 which appellant/plaintiff claimed the suit land was faulty. The substantial question of law is answered accordingly.
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As a result of the discussion held above, the present appeal fails and the same is dismissed with costs, so also pending miscellaneous application(s), if any.
(Ajay Mohan Goel) Judge of 19th October, 2016.
(narender) rt ::: Downloaded on - 15/04/2017 21:23:43 :::HCHP