Himachal Pradesh High Court
Shri Bhagwan Dass vs Behari Lal Etc. Both The on 23 September, 2021
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
1
Reportable
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 23rd DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SURESHWAR THAKUR
REGULAR SECOND APPEAL NO. 423 of 2009
Between:
SHRI BHAGWAN DASS,
S/O SHRI PARAS RAM,
R/O VILLAGE KATHIARI,
TEHSIL AMB, DISTRICT UNA, HP
...APPELLANT
(BY MR. N.K. THAKUR, SENIOR ADVOCATE WITH MR.
DIVYA RAJ SINGH AND MR. KARANVIR SINGH,
ADVOCATES, FOR THE APPELLANTS)
AND
1. SHRI CHAMAN LAL, S/O SH. BASANTA,
2. SHRI SHAM LAL , S/O SHRI BIHARI LAL,
3. SMT. SATYA DEVI W/O SHRI BIHARI LAL,
4. SMT. USHA DEVI, W/O SHRI CHAMAN LAL,
5. SMT. KARNA DEVI, W/O SHRI RAKESH
KUMAR,
ALL RESIDENTS OF VILLAGE KATHIARI, TEHSIL
AMB, DISTRICT UNA, HP
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2
(BY MR.PAWAN GAUTAM, ADVOCATE)
.
This appeal coming on for orders this day, the
Court passed the following:
JUDGMENT
The plaintiff instituted civil suit No. 232 of 1999, before the learned trial Judge. In the suit (supra), he claimed the making of the hereinafter extracted decrees:
A) Suit for possession by demolition of construction marked by letters A B C D, as shown in red colour in the site plan of the plaintiff being a part of the land measuring 0-03-46. Hence, comprised in Khewat No. 204 min, khatauni No. 511, min and khasra Nos 2554, as entered in the Jamabandi for the year 1996-97, situated in village Kathiari, Tehsil Amb, District Una (H.P.) B) Suit for issuance of permanent injunction restraining the defendants from raising any further construction taking further forcible possession and changing the nature of the land measuring 0-08-59 Hects, comprised in Khewat No. 204 min, khatauni No. 511 min and khasra No. 2531 and 2554, as entered in the Jamabandi for the year 1996-97, situate in village Kathiari, Tehsil Amb, District Una, under Sections 5 and 38 of the Specific Relief Act."::: Downloaded on - 31/01/2022 23:06:45 :::CIS 3
2. The plaintiff also instituted another civil suit bearing No. 128 of 1999, before the learned trial judge, and in the afore suit, the plaintiff claimed the makings of .
the hereinafter extracted decree(s), vis-à-vis, the suit khasra No. 1556 and 1557, and, against the defendants.
3. Both the afore civil suits, through a common verdict, recorded thereons, on 29.8.2006, became decided in the hereinafter extracted manner:
"The Court hereby direct that parties shall abide by the compromise and the result of demarcation report Ext. CW1/A which alongwith map relied and statements Ext. CW1/B and C are made part of decree. In view of facts and circumstances, the parties shall bear their own costs. A decree sheet be prepared. Attested copy of this judgment and that of decree sheet be placed on the record of Civil Suit No. 232/1999 titled as Bhagwan Dass Vs. Behari Lal etc. Both the suits be consigned to record room."
4. The aggrieved plaintiff carried thereagainst Civil Appeal No. 27/2006, before the learned First Appellate Court. The learned first Appellate Court, upon Civil Appeal No. 27 of 2006, made thereon a decision of dismissal. Obviously, hence, the judgments and decrees, ::: Downloaded on - 31/01/2022 23:06:45 :::CIS 4 as became rendered by the learned trial Judge, became affirmed, and, maintained.
5. The aggrieved plaintiff, is led, to constitute .
thereagainst, the instant appeal, before this Court. When the instant appeal, came up before this Court, on 26.3.2010, it came to be admitted, on the hereinafter extracted substantial questions of law:
"1. Whether the statements of the parties with respect to the demarcation in a suit for injunction would automatically make the later suit for possession based on title redundant and such findings are unsustainable?
2. Whether without clubbing the two suits involving different subject matter can be legally disposed of by a common judgment, more particularly when the issues in both the suits are distinct and specific and the learned Courts below have committed an error of law in holding that both the suits have become redundant?
3. Whether the statement of the parties with regard to getting the demar5cation of their land in an injunction suit would take away the right of another party to file suit for possession of his land against others?
4. Whether admission made by the Local Commissioner while appearing as a witness and contradicting his own report is sufficient evidence to discard the report of the Local Commissioner and the learfned Courts below have committed an error in relying upon such report which is Ext. CW1/A?::: Downloaded on - 31/01/2022 23:06:45 :::CIS 5
6. Though, the concurrent verdicts, as made respectively by the learned trial Judge concerned, and .
later by the learned first appellate Court, draw sustenance, from a compromise, which is reflected in the order, made by the learned trial Judge, on 29.8.2006, order whereof is extracted hereinafter:
"Both the learned counsel have made statement that matter has been compromised between the parties and they will get suit land and adjacent land demarcated from Tehsildar as local commissioner as per record of consolidation and result would be binding on both the parties. In view of this, Tehsildar, Amb is appointed as local commissioner with direction to demarcate the suit land and adjacent land as per record of consolidation strictly for the purpose of compromise. His fee is assessed as Rs. 1200/- which shall be shared equally by both the parties.Reference to the local commissioner be issued and report be called for 27.5.2005."
7. However, for the reasons to be assigned hereinafter, the reliance as placed upon the order (supra), and, also, both the learned Courts below, on anvil thereof accepting the report of the Demarcating ::: Downloaded on - 31/01/2022 23:06:45 :::CIS 6 Officer, rather is completely flawed. The pre-dominant reason(s), for making the afore conclusion, becomes anviled upon the factum of order (supra) impermissibly, .
binding the parties to accept the orders (supra), especially when unless the report of the Demarcating Officer, became cogently proven, to be drawn, in accordance with law, thereupon, it held not validity, in the eyes of law, nor also, the order (supra), as made by the learned trial Judge, could be fastened with any conclusive and binding effect, hence, upon the contesting litigants concerned.
8. Be that as it may, since this Court, assigns the afore reasons, for hence conditionally fastening any conclusivity to the order (supra) as made by the learned trial Judge concerned, thereupon, it is led to determine the legal potency, and, efficacy of the demarcation report, as became drawn by the Demarcating Officer concerned.
Upon a reading of the testification of the Demarcating Officer concerned, if manifest displays become borne therein, vis-à-vis, the demarcating officer rather flouting the relevant guidelines, appertaining to the conducting of ::: Downloaded on - 31/01/2022 23:06:45 :::CIS 7 a valid demarcation. Thereupon, this Court would discard the report of the Demarcating Officer, and, also would concomitantly conclude that no finality or .
conclusivity, is to be fastened, upon the contesting litigants, vis-à-vis, the order (supra), as became made by the learned trial Judge. A closest perusal of the testification, of the Demarcating Officer, who stepped into witness box as a Court witness, and, who during his examination-in-chief, tendered and proved Ext. CW1/A, also does reveal, that yet during the course of his cross-
examination, his accepting suggestions, as became meted to him, by the learned counsel for the plaintiff, that vis-à-
vis, disputed khasra Nos. 1555, and, 1556, incorrect measurement(s) being made. Moreover, with his further admitting, in his cross-examination, that in Ext. CW1/A an erroneous reflection occurs that the length from Point "B" to "J", being 29 karams. Besides, with his also admitting in his cross-examination, that his omitting to record the correct dimensions of the afore. Moreover, with his also admitting in his cross-examination, that he did not spell in Ext. CW1/A, the measurement as made ::: Downloaded on - 31/01/2022 23:06:45 :::CIS 8 from C to D. Consequently, the demarcation report, as prepared by him, and, as embodied in Ext. CW1/A, cannot be accepted to be validly made, nor also hence the .
order (supra) could be fastened, with any aura of conclusive, and, binding effect, vis-à-vis, the litigants concerned.
9. Be that as it may, imperatively upon an invalidly prepared demarcation report, borne in Ext.
CW1/A, the learned trial Judge could not make the impugned verdict (supra), nor the learned first appellate Court could proceed to affirm it.
10. However, for deciding the lis interse the contesting litigants, this Court deems it fit to remand, the lis to the learned first appellate Court to, enable it to, within two weeks, hereafter, appoint a demarcating officer, for conducting, a valid demarcation of the suit khasra Nos. The Demarcating Officer concerned shall, within three weeks, thereafter, submit his report before the learned first appellate Court. The learned first appellate Court, shall ensue the stepping into the witness box, of the author of the demarcation report, and shall ::: Downloaded on - 31/01/2022 23:06:45 :::CIS 9 also, ensure his being cross-examined, by the counsel for the aggrieved. Obviously, thereafter the learned first appellate Court, shall within four weeks, thereafter, .
record fresh findings upon the issues, which fell for contest, in, the suit for possession (supra), as became instituted, by the plaintiff and, also shall record fresh findings, upon the civil suit (supra), for injunction, as became instituted by the plaintiff against the defendants.
Substantial questions of law are accordingly answered in favour of the plaintiff and against the defendants.
11. Therefore, the instant appeal succeeds, and, the judgments and decrees, impugned before this Court are set aside. No order as to costs. Records be forthwith sent down to the learned First Appellate Court. Also, the pending application(s), if any, are disposed of.
(Sureshwar Thakur) Judge 23rd September, 2021 Kalpana ::: Downloaded on - 31/01/2022 23:06:45 :::CIS