Himachal Pradesh High Court
Rajinder Singh Cahuhan vs State Of H.P. & Another on 4 January, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 314 of 2011 Reserved on: 06.12.2016 Decided on: 04.01.2017 .
____________________________________________________________ Rajinder Singh Cahuhan. .....Appellant.
Versus State of H.P. & another. ......Respondents.
_______________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
of 1 Whether approved for reporting? Yes. ______________________________________________________ For the appellant. Mr. Y.P. Sood, Advocate.
rt For the respondents.Mr. Ankush Dass Sood, Sr. Advocate, with Mr. Virender K. Verma, Addl. AG, and Ms. Shweta Joolka, Advocate.
Chander Bhusan Barowalia, Judge.
The present regular second appeal has been maintained by the appellant/plaintiff (hereinafter referred to as 'the plaintiff') assailing the judgment and decree, dated 20.06.2011, of the learned District Judge, Shimla, H.P. passed in Civil Appeal No. 47-S/13 of 2010, upholding the judgment and decree, dated 26.05.2010, passed by learned Civil Judge (Senior Division) Theog, District Shimla, H.P., in Civil Suit No. 15/1 of 2005, whereby the suit of the plaintiff was dismissed.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:51:32 :::HCHP -2-2. Brief facts giving rise to the present appeal are that the plaintiff maintained a suit for permanent prohibitory and mandatory injunction against the .
respondents, who were defendants before the learned Trial Court (hereinafter referred to as 'the defendants'). The plaintiff alleged that prior to settlement Khasras No. 27, 33, of 35, 43/37, 91/38, 89, 40/37 and 145/38, kita-9, measuring 17 bighas and 3 biswas, situated in Chak rt Badriyana (as per jamabandi for the year 1993-94). As per the plaintiff, the above land was in his exclusive ownership and possession. Settlement operation was concluded and missal haquiat was prepared in the year 2001-2002, wherein plaintiff was depicted owner of khewat No. 5 min, khatauni No. 8 min, khasra No. 171, 174, 174/1, 195, 199, 201, 226, 228, 230, 231 and 233, kita-11, measuring 0-74- 40 hectares (for the sake of convenience hereinafter referred to as 'the suit land'). The plaintiff has further averred that without obtaining the prior consent of the plaintiff or his predecessor-in-interest the defendants carved out motorable Theog-Kotkhai-Hatkoti road. As per the plaintiff, he applied for demarcation in the year 1995 of ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP -3- the land whereon the said road is constructed. The demarcation was conducted on 04.1.1995 in presence of Tehsildar Kotkhai, Junior Engineer, HPPWD, Sub Division .
Kotkhai, wherein defendants were found to have constructed a road over a part of Khasras number of the plaintiff. The constructed portion of road was depicted as of Khasra No. 35/1, measuring 8 biswas, Khasra No. 46/37/1, measuring 1 (one) biswa, Khasra No. 92/38/1, rt measuring 1 one) bigha and 1 (one) biswa and khasra No. 90/37/1, measuring 12 biswas. Thus the total area measuring 2 bighas and 2 biswas was found utilized by the defendants for the abovementioned road. A tatima was prepared and the demarcation report was accepted by the defendants. The said land was not acquired and the plaintiff was not paid any compensation and ultimately the plaintiff maintained Writ Petition No. 937 of 1996 in the Hon'ble High Court, which was allowed vide order dated 04.10.1996. The defendants were directed to acquire the land as per law. Consequently, vide award dated 01.07.1999 the land of the plaintiff denoted by Khasras No. 35/1, 35/2, 91/38/1, 91/38/2, 92/38/1, 92/38/2, ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP -4- 90/37/1 and 90/37/2, kita 8, measuring 2 bighas and 1 (one) biswa, Chak Badriyana, Tehsil Kotkhai, District Shimla, H.P., was acquired. To this effect mutation No. .
237, dated 28.10.1999 was also attested. As per the plaintiff, it is only after demarcation dated 04.11.1995, he raised construction of his Guest House on a portion of of Khasra No. 35/3, measuring 3 bighas and 2 biswas, out of which 8 biswas had been acquired by the defendant No. 1.
During rt the construction of the aforesaid guest the defendants did not object, rather authorities under the defendants gave 'No objection certificate' qua the construction of guest house by the plaintiff on his land.
The Executive Engineer, HPPWD, Jubbal on 19.06.1999 served a notice qua construction of guest house in controlled width of the road, however, no objection with respect to the construction being done within the acquired portion was raised. During the period 1999 to 2002 settlement took place and the land of the plaintiff was wrongly and illegally measured. The settlement authority found that the plaintiff had constructed the guest house over the land belonging to HPPWD over khasra No. 177.
::: Downloaded on - 15/04/2017 21:51:32 :::HCHP -5-The plaintiff represented before the settlement officials that his land was acquired whereon the road is existing, specifically Khasra No. 35/1 and 35/2 and remaining land, .
i.e., Khasra No. 35/3 was never acquired. On the objection of the plaintiff, Field Kanungo (Settlement) inspected the land on 18.05.2002, however, no demarcation was of conducted and he wrongly came to the conclusion that the guest house is on the part of the acquired land.
rt Subsequently, Naib Tehsildar inspected the spot in August, 2002, but he too did not conduct the demarcation, and concluded the same. The plaintiff maintained an appeal against the order of the ASO, Theog, however, the defendants initiated the widening work of the road.
Therefore, the plaintiff maintained a suit for permanent prohibitory injunction against the defendants wherein he prayed that the defendants may be restrained from interfering or causing any interference in the land mentioned hereinabove, more particularly in Khasra No. 35/3 (old) Khasra No. 174/1 (new) whereon the plaintiff has constructed as guest house. The plaintiff had also prayed that the defendants may also be restrained from ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP -6- carrying out any construction over the land denoted by Khasra No. 35/1, 35/2, 91/38/1, 91/38/2, 92/39/1, 92/38/2, 90,37/1 and 90/27/2, kita 8, measuring 2 .
bighas and 1 (one) biswa, Chak Badriyana, Tehsil Kotkhai, till final demarcation of the land.
3. The defendants, by filing written statement, of contested the claim of the plaintiff. The defendants took preliminary objections qua non-joinder of necessary rt parties, maintainability, cause of action, court fee and jurisdiction and the suit land is not owned and possessed by the plaintiff. On merits, the defendants averred that plaintiff was owner-in-possession of the suit land comprised in Khasras No. 27, 33, 35, 43/37, 91/38, 89, 40/37, 92/38 and 1455/39 and 145/39, kita 9, measuring 17 bighas and 3 biswas. It is further contended that the Theog-Kotkhai-Hatkoti road is in existence since 1956 and vide award No. 26/96, dated 15.03.1999, the defendants acquired the land and mutation No. 237 was attested and sanctioned in their favour. The defendants had also paid compensation alongwith interest from the year 1956 to 1999 to the plaintiff. As per the defendants, during the ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP -7- construction of the road the plaintiff or his predecessor-in-
interest did not object, rather the road was constructed after due consent. The plaintiff maintained a writ petition .
in the Hon'ble High Court of H.P. and consequent upon the direction of the Hon'ble High Court land comprised in Khasras No. 35/1, 35/2, 91/38/1, 91/38/2, 92/38/1, of 92/38/1, 92/38/2, 90/37/1, 90/37/2 and 46/37/1, measuring 2 bighas and 2 biswas was acquired after paying rt compensation alognwith interest to the plaintiff.
Thereafter, settlement took place and new Khasra No. 177 was carved out from the old Khasra No. 35/1 and 35/2, whereas Khasra No. 35/3 remained with the plaintiff, which is denoted by new Khasra No. 174. As per the defendants, the plaintiff took loan from the Tourism Development Corporation against Khasra No. 35/3, however, he has constructed the guest house over Khasras No. 35/1 and 35/2 (new Khasra No. 177), which is owned and possessed by the State/defendant No. 1. Thus, the plaintiff encroached upon the government land and also misused the loan amount. The defendants have further pleaded that the plaintiff is misleading the Court by trying ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP -8- to project that there is variance in the old settlement record and fresh settlement record, which was finalized in the year 2002. As per the defendants, the plaintiff was summoned .
for 23.02.2005 for demarcation, however, he did present himself. As the plaintiff had encroached upon the government land, missal was prepared by the revenue of officials after due demarcation of the land. Lastly, the defendants prayed that the suit of the plaintiff may be dismissed.
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4. The learned Trial Court framed the following issues for determination and adjudication:
"1. Whether plaintiff is entitled for the relief of injunction? OPP
2. Whether suit is bad for non-joinder of necessary parties? OPD
3. Whether suit is not maintainable? OPD
4. Whether suit is not properly valued? OPD
5. Relief."
After deciding issue No. 1 against the plaintiff, issue No. 2 against the defendants, issue No. 3 in favour of the defendants and issue No. 4 against the defendants, the suit of the plaintiff was dismissed. Subsequently, the plaintiff preferred an appeal before the learned Lower Appellate Court which was also dismissed. Hence the present ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP -9- regular second appeal, which was admitted for hearing on the following substantial questions of law:
"1. Whether the Courts below have misread, .
misconstrued or misappreciated the documents Ex. PW-3/A, Ex. PX-1, PW-1/A, Ex. PX-3 and Ex. PX-4 and findings thus recorded on account of misreading and mis-appreciation of above documents are vitiated?
2. Whether the presumption of correctness could be attached to the revenue entries wrongly of prepared during the course of settlement proceedings and are under challenge before the competent authority?
3. Whether the Courts below have acted illegally by rt failing to grant a decree for permanent prohibitory injunction in favour of the appellant qua the suit land, since the appellant has established on record his exclusive ownership and possession over the suit land and interference on the part of the respondents?"
5. I have heard the learned counsel/Senior Counsel for the parties.
6. The learned counsel for the plaintiff/appellant has argued that the application under Order 41 Rule 27 CPC, which is maintained by the plaintiff in the present regular second appeal, may be allowed and the order passed by the Settlement authorities correcting the settlement record showing the plaintiff/appellant in possession of the land may also be taken into consideration ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP
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and the appeal may be allowed. He has further argued that the judgment and decree passed by the learned Courts below are not as per the evidence which has come on .
record and same are liable to set aside and the appeal may be allowed. He argued that the Khasras No. are wrongly mentioned and in fact the plaintiff is in possession of the of property, as owner, and the defendants are required to be restrained from constructing the road and an appropriate rt decree is also required to be passed by allowing the present regular second appeal. Conversely, the learned Senior Counsel has argued that the present appeal has no merits and qua application under Order 41, Rule 27 CPC he has addressed exhaustive arguments. He has further argued that the appeal is without any merit and no substantial question of law is involved in this appeal and the same is required to be dismissed. In rebuttal, the learned counsel for the plaintiff/appellant has argued that as the plaintiff is owner of the land, the defendants cannot construct the road without acquiring the land.
7. Detailed and exhaustive arguments addressed by the learned counsel/Senior Counsel for the respective ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP
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parties have been considered while disposing of application maintained by the plaintiff/applicant under Order 41, Rule 27 CPC, order whereof has been separately passed by this .
Court, whereby the application has been dismissed.
8. In order to appreciate the rival contentions of the parties I have gone through the record in detail.
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9. Now, I would like to advert to the merits of the present appeal. Shri Parkash Chand (PW-1), Junior rt Engineer, was present during demarcation which was conducted on 04.11.1995. This witness admitted the correctness of copy of certificate, Ex. PW-1/A. Shri Ram Saran (PW-2), Field Kanungo, demarcated the land on 04.11.1995 and had furnished report, copy where of is Ex.
PW-3/A. Shri Mangat Ram (PW-3), Kanungo, deposed that during the settlement operation record was not properly prepared. PW-4, Shri Rajinder Singh (plaintiff) while supporting his case deposed that road was constructed through his land without his consent. Subsequently, the land under the occupation of the defendants was also ordered to be acquired and he was paid compensation. He has further deposed that the defendants did not acquire ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP
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the land beyond their occupation, thus there is no question of encroachment. He has constructed a godown earlier whereupon guest house was constructed subsequently on .
Khasra No. 35/3 (old) Khasra No. 174 (new). As per the plaintiff, settlement officials did not demarcate the land and guest house rightly. Shri Gian Chand, Patwari (PW-5), who of worked in the office of Settlement Officer deposed that the record of the last settlement did not match with the record rt of the first settlement of 1915.
10. On the other hand, defendants examined five witnesses. Shri Rajinder Singh, Kanungo (DW-1) deposed that he had demarcated the road and guest house of the plaintiff. As per this witness, the plaintiff had constructed his guest house on Khasra No. 177, as per copy report, Ex.
DW-1/A. Shri Chet Ram (DW-2), Assistant Engineer, Kotkhai, deposed that road had been constructed through the land for which due compensation had been awarded by the Collector Land Acquisition to the plaintiff. He has further deposed that the plaintiff had encroached upon the land of the defendants by constructing a guest ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP
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house thereon. As per the acquisition and site plan, the width of the road was 80 feet, however, the width was approximately 16 feet. Shri Varinder Singh and Shri Desh .
Raj (DW-4 and DW-5, Junior Engineers, respectively) fortified the stand as taken by DW-2, Shri Chet Ram, Assistant Engineer Kotkhai. Shri surat Ram, Patwari (DW-
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3) was present during the demarcation along with the Field Kanungo. They found that the plaintiff had encroached rt upon the land, compensation whereof had already been paid to him.
11. On analysis of the plaint filed by the plaintiff it is found that plaintiff himself had unequivocally stated that beside the area under the occupation of the defendants, they had acquired other area of the plaintiff and he had been paid compensation for the acquired land, i.e., land measuring 2 bighas and 2 biswas. According to the documents and evidence of the defendants, the width of the road through Khasra No. 35/1, 35/2 (old) corresponding to Khasra No. 177 (new) was 80 feet, however, width of the area in fact was around 16 feet. Thus, the plaintiff had encroached upon the land for which he had already been ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP
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paid compensation alongwith interest w.e.f. 01.01.1956. In cross-examination of DW-2, Shri Chet Ram, has rejected the suggestion that width of the road through the area of .
the plaintiff under acquisition was 80 feet. Manifestly, the suit land had been demarcated thrice and settlement officials carried out field to field measurement and the of same had been recorded in the field book. The settlement officials found construction raised by the plaintiff on rt Khasras No. 35/1 and 35/2 (old) which corresponds to Khasra No. 177 (new). The plea that the demarcation had been carried in absence of the plaintiff is incorrect, as the plaintiff did not say qua his absence during the settlement operation. Thus, the plaintiff cannot turn around and raise a plea of ignorance qua settlement operations and demarcation of his holdings.
12. As per the record, Field Kanungo (Settlement), Naib Tehsildar (Settlement) concluded that the plaintiff had encroached upon the land of the defendants. Thus, the plea, as raised by the plaintiff that Field Kaungo (Settlement) did not demarcate the area rightly, becomes untenable. The learned Trial Court vide its order dated ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP
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07.12.2009 appointed Shri D.R. Verma, Officer retired of H.P. Administrative Services, having experience of more than 30 years in revenue administration, as Local .
Commissioner, when the plaintiff objected to the earlier two demarcation reports. He, in presence of both the parties, demarcated the area under acquisition and guest house of of the plaintiff for three days. The Local Commissioner, after elaborate measurement, found the guest house in dispute rt on Khasra No. 177(new) corresponding to Khasras No. 35/1 and 35/2 (old). Again, the plaintiff filed objection against the report of the Local Commissioner and cross-examined him at length wherein he has deposed that he took into consideration the record and found that the plaintiff wanted location of his guest house beyond the area under acquisition. The Local Commissioner demarcated the land on 10.02.2010 taking aid of new record of rights and opined against the plaintiff. The plaintiff demanded that the suit land may be demarcated on the basis of old record of rights, so he had to adjourn the proceedings to 24.02.2010, on which date the plaintiff produced a field map of disputed land, viz., Khasra No. 33. The ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP
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measurement of the land was conducted on the basis of said field map, which was erroneous. The plaintiff wanted to start the measurement from khasra No. 33, dimensions .
whereof had been 36+13+13+13+11+11, however, on inquiry dimensions whereof were found 36+13+13+11+11.
The guest house was found on Khasras No. 35/1 and 35/2, of therefore, the plaintiff and his men started quarreling with the defendants' men. Thus, on apprehension of breach of rt peace and injury, the Local Commissioner did not prepare the field map of the land under encroachment. Now, it can be safely held that there is no reason to disbelieve the report of the Local Commissioner as also the demarcations conducted by other revenue officers. The plaintiff tried to take aid of reference, dated 19.06.1999, of the concerned Executive Engineer, whereby he was directed not to raise construction in controlled width. It is admitted by the plaintiff that he had raised the construction of the guest house between RD-3/575 to RD-3/625. In fact the construction had been raised in controlled/acquired width and the construction was started by him w.e.f. June, 1999.
Therefore, the plea of the plaintiff that he had raised the ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP
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construction without any objection of the defendants is incorrect.
13. As the plaintiff had received the compensation .
for the land and thereafter he encroached upon the land, the judgment and decree passed by the learned Courts below cannot be said to be result of misreading, of misconstruing or mis-appreciation of the documents, viz., Ex. PW-3/A, Ex. PX-1, Ex. PW-1/A, Ex. PX-3 and Ex. PX-4.
rt Thus, the findings, as recorded by the learned Court below, are as per law and after appreciating the documents to their true and right perspective. There is no mis-
interpretation or even a slight mis-appreciation of these documents, what to say of misconstruing the documents.
The documents have been properly appreciated and, therefore, substantial question of law No. 1 is answered holding that the documents are properly appreciated.
14. As far as the correctness of the revenue entries are concerned, the same are duly proved by two demarcating Officers and the Local Commissioner, who were appointed two at the instance of the plaintiff and one by the order of the learned Court, who was having ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP
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experience of more than 40 years. All these commissions concluded that the plaintiff had encroached on the land of defendant No. 1/State, which was acquired at the instance .
of the plaintiff for which he had been paid due and admissible compensation alongwith interest w.e.f. 1956.
As far as demarcations are concerned, the same have of attained finality. It is not the one demarcation, but the three demarcations. Can it be said that all the three rt commissions, two at the instance of the plaintiff and one by the order of the Court, have committed illegality. Under these circumstances, this Count finds that it is not only the revenue entries upon which the learned Courts below have relied, but the same have been proved in affirmative also, therefore, substantial question of law No. 2 is answered holding that the Courts below have committed no illegality
15. As discussed hereinabove, the learned Courts below have committed no illegality. Three Local Commissioners were appointed at different points by the learned Trial Court and they all have categorically reported that the land is in the ownership of defendant No. 1 (State).
These reports have attained finality and the reports were ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP
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given by the experts in the revenue side, who were having experience. Third Local Commissioner, who was appointed by the learned Trial Court, was a retired Revenue Officer .
having experience of more than 30 years. These reports thereafter attained finality. So, the plaintiff has failed to prove his ownership over the suit land, thus substantial of question of law No. 3 is answered holding that the judgments and decrees passed by the learned Courts below rt are just, reasoned and within the confines of law.
16. Resultantly, in view of the discussion made hereinabove, the appeal being without any merits deserves dismissal and is accordingly dismissed with costs throughout in favour of the defendants and against the plaintiff.
(Chander Bhusan Barowalia) Judge 4th January, 2017 (virender) ::: Downloaded on - 15/04/2017 21:51:32 :::HCHP