Himachal Pradesh High Court
Braham Dass & Anr vs Bhoomi Chand on 11 August, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 387 of 2003.
Reserved on: 03.08.2015.
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Decided on: 11.08.2015.
Braham Dass & anr. ......Appellants.
Versus
Bhoomi Chand .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
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Whether approved for reporting? Yes.
For the appellant(s): Mr. G.D.Verma, Sr. Advocate, with Mr. B.C.Verma, Advocate.
For the respondents: Mr. Rajnish K. Lall, Advocate, vice counsel.
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Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned District Judge Hamirpur, H.P. dated 26.5.2003, passed in Civil Appeal No.103 of 1998.
2. Key facts, necessary for the adjudication of this regular second appeal are that the appellants-plaintiffs (hereinafter referred to as the plaintiffs) have instituted suit against the respondent-defendant (hereinafter referred to as the defendant) for possession by way of demolition of construction on land marked A,B,C and D, measuring 2 marlas comprised in Khata No. 73, Khatauni No. 131, Kh. No. 136 measuring 1 kanal 11 marlas as per jamabandi for the year 1973-74, situated in Up-Mahal Gandhi Nagar (Gaura Khurd), Tappa Bajuri, Tehsil and Distt. Hamirpur, corresponding Khata No. 60, Khatauni No. 302 to 305, plots 8 area 613 meters 33 centimeters, as per missal haquiat bandobast for the year 1984-85.
According to the plaintiffs, the defendant has encroached 2 marlas of the land ::: Downloaded on - 15/04/2017 18:44:24 :::HCHP 2 marked as mark A, B, C and D by re-constructing the boundary wall and latrine in the absence of plaintiffs and without their consent in November, .
1977. The defendant has also manipulated the revenue entries. The plaintiffs requested the defendant to vacate the possession of the suit land encroached upon by him by demolishing a boundary wall and latrine reconstructed by him over the suit land, but to no avail.
3. The suit was contested by the defendant. According to the of defendant, the retaining wall was reconstructed prior to the year 1977 on his own land and the latrine was also constructed prior to the year 1977. The rt plaintiffs have previously filed a civil suit No. 137 of 1992 qua the suit land before the Sub Judge, Hamirpur. It was withdrawn by the plaintiffs on 6.10.1977.
4. The replication was filed by the plaintiffs to the written statement filed by the defendant. The learned Sub Judge (II), Hamirpur, H.P., framed the issues and dismissed the suit on 25.4.1998. The plaintiffs filed an appeal against the judgment and decree dated 25.4.1998. The learned District Judge, Hamirpur, dismissed the same on 26.5.2003. Hence, this regular second appeal.
5. This Regular Second Appeal was admitted on the following substantial question of law on 12.7.2004:
"1. Whether the oral, as well as, documentary evidence produced by the appellants has neither been considered, nor appreciated and the findings are vitiated in accordance with law?"::: Downloaded on - 15/04/2017 18:44:24 :::HCHP 3
6. Mr. G.D.Verma, learned Senior Advocate, for the appellants has vehemently argued that the report of the Local Commissioner LC-1 could not .
be disbelieved. On the other hand, Mr. Rajnish K. Lall, Advocate, appearing on behalf of the defendant has supported the judgments and decrees passed by both the Courts below.
7. Initially, Civil Suit was dismissed by the learned Sub Judge on 22.4.1988. The appeal was preferred against the judgment and decree dated of 22.4.1988 in Civil Appeal No. 98/88. The learned District Judge, Hamirpur vide judgment dated 31.10.1994 remanded the matter and ordered fresh trial rt of the case in accordance with law. Previously, one Mr. M.L.Sharma DRO Hamirpur was appointed as Local Commissioner. He submitted his report dated 3.2.1986 in the Court. The report was confirmed by the Court vide order dated 1.7.1987. However, the learned District Judge, Hamirpur, set aside the same on 31.10.1994. Thereafter, Sh. Ram Rattan, retired C.O. was appointed as new Local Commissioner on 28.3.1995. He submitted his report dated 24.7.1995 alongwith Tatima, field book and also the statements of the parties. The objections against the report, preferred by the defendant, were dismissed on 7.4.1997. Civil Revision No. 122 of 1997 was preferred against the order. It was directed by this Court that after completion of the evidence, the entire evidence on record, including the report of the Local Commissioner, Tatima and other documents shall be taken into consideration.
8. Plaintiff Braham Dass has appeared as PW-1. According to him, the defendant started raising construction of the wall in the year 1979 over ::: Downloaded on - 15/04/2017 18:44:24 :::HCHP 4 the suit land. The wall was 100 ft. in length and 5-6 feet in height.
Thereafter, the defendant also constructed one latrine and store. The plaintiff .
has neither disclosed the khasra number nor has he stated that on which date and month, the wall was constructed. He has also not given the date or month when the latrine and store were constructed. PW-1 Braham Dass has admitted in his cross-examination that he had earlier filed a suit in the year 1972 and it was withdrawn as dismissed on 6.10.1977. He has reported the of matter to the police, however, no report made by the plaintiffs has been placed on record.rt He was not aware whether or not certified copy of the Musabi was obtained qua which an entry had been made at Sr. Nos. 2,4, 8 and 3. According to him, Musabi could not be procured as the same was torn. He denied the suggestion that wall, store and latrine were constructed in the year 1969. PW-2 Angat Ram was not aware in which ward number, the suit land was situated. He was also ignorant in which year, month or date the wall and other construction was raised. PW-3 Krishan Lal, Jr. Assistant, D.C.Office, Dharamshala, could not produce the requisitioned record as the same was not available.
9. Defendant Bhumi Chand has appeared as DW-2. According to him, the construction of the wall was carried out with the consent of the plaintiffs in the year 1968-69. Thereafter, neither any wall nor latrine was constructed. He has not encroached upon any portion of the land of the plaintiffs. Sh. Ram Rattan, LC did not take their statements qua the fixation of pacca points before carrying out the demarcation. No triangle and perpendiculars were drawn. The demarcation was carried out with ropes.
::: Downloaded on - 15/04/2017 18:44:24 :::HCHP 5Sadar Musabi was not available. The Musabi which was submitted by the plaintiffs was having erased Karukans. On the spot, no Bannas were shown .
or fixed by the Local Commissioner. He was not found to have encroached upon any portion of the suit land. It was the plaintiffs who have encroached upon his land. DW-2 Bhumi Chand in his cross-examination has denied that he raised construction of the wall in the year 1979. He denied that the bannas were fixed by the LC who found that encroachments have been made.
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10. The defendant has also examined DW-3 Uttam Chand and DW-4 Tilak Raj. According to them, the wall in question was constructed in the rt year 1968-69. The defendant has not encroached upon any portion of the land of the plaintiffs. DW-5 Krishan Lal, Jr. Assistant, D.C.Office, Dharamshala, could not produce the requisitioned record as the same was not available. DW-6 Amar Nath, Copying Agent, D.C. Office, Hamirpur deposed that in CD register pertaining to the year 1971, no application filed by the plaintiffs has been entered upto 13.4.1971. The application dated 5.10.1974 has been filed by Sh. S.L.Sharma, Advocate. The other application bearing No. 2483 dated 28.11.1974 was stated to be filed by Khiali Ram for supplying the copy of Khasra Girdawri. DW-7 Kesha Dutt has produced the record of previous suit bearing No. 137/72. He deposed that the same was withdrawn as dismissed vide order Ext. DW-7/A. DW-8 Ram Rattan is the Local Commissioner appointed by the learned trial Court. He has inspected the spot and carried the demarcation on 23.7.1995 and 24.7.1995. DW-9 Prithi Chand, Patwari has produced the Musabi for the year 1910-11. He deposed that the same was in bad shape and the entries therein were not ::: Downloaded on - 15/04/2017 18:44:24 :::HCHP 6 legible. DW-10 Sadar Kanungo, on seeing the condition of the Aks Musabi Mark "A" has deposed that it could not be said as to whether the same was .
the copy of the Latha Momo or Musabi.
11. The plaintiffs have relied upon jamabandi Ext. P-1 for the year 1973-74, copy of missal hakiat bandobast for the year 1984-85, Ext. P-3 and copies of khasra Girdawari Ext. P-2 and P-4. The defendant has placed reliance upon Ext. D-1, D-2 and D-3. It is evident from Ext. D-1, D-2 and of Ext. D-3 that settlement record prepared during the course of settlement proceedings has been upheld till the Court of the Financial Commissioner rt (Appeals), H.P. and the appeals as well as the revisions filed by the plaintiffs have all been dismissed.
12. According to DW-8 Ram Rattan, Local Commissioner, he visited the spot on 23.7.1995 and 24.7.1995. He submitted the report to the trial Court. The plaintiff has placed strong reliance upon Mark D. Mark D has not been proved in accordance with law. Neither of the party was able to produce copy of the old musabi before him. No evidence has been proved by the plaintiffs as to when the copy was applied and the same was supplied to them. No efforts have been made by the plaintiffs to prove Musabi Mark A to be the real and genuine document. It is also not born out from the record as to which copying agent has issued the copy. DW-5 Krishan Lal, Jr. Assistant, D.C.Office, Dharamshala, stated that the record was sent to Hamirpur through someone in the year 1972-73. In the CD register produced for the year 1972-73, there is no application for supplying the copy of musabi. DW-6 Amar Nath has produced the CD-II Register and as per the entries therein, no ::: Downloaded on - 15/04/2017 18:44:24 :::HCHP 7 application till 13.4.1971, was filed by the plaintiff Braham Dass in the Copying Agency for supplying the copies pertaining to the year 1974-75 and .
as per the record, only two applications were received. One was made by Sh.
S.L. Sharma, Advocate which was entered at Sr. No. 2034 and the other by Khiali Ram on 28.11.1974 entered at Sr. No. 2483, for supplying the copies of Khasra Girdawri. The learned Courts below have rightly come to the conclusion that Mark A was not legible. DW-9 Prithi Chand who had of produced the original record stated that the same was in bad shape and no numbers were legible. It is intriguing to note that how certified copy could be rt prepared when the original was not legible.
13. According to DW-10 Suresh Kumar, on seeing the musabi Mark A, he could not say that the same was a copy of Latha, Mommy or Musabi.
Karukans were also missing. Since the demarcation has been carried out on the basis of old musabi mark A, the findings of the Local Commissioner regarding alleged encroachment to the extent of 30.61 sq. meters on the land of the plaintiffs is not factually sustainable. However, it would also be pertinent to note that when the demarcation was carried out with the help of new musabi after settlement of 1984-85, the defendant had not encroached upon the suit land or any portion thereof. In view of the peculiar facts and circumstances of the case, the musabi prepared after the settlement of the year 1984-85, was to be given preference vis-à-vis old musabi, which was not legible. It was also not proved that it was true copy of the original since original itself was not legible. Karukans were also not legible. DW-8 Ram Rattan, Local Commissioner has admitted that measurement was not carried ::: Downloaded on - 15/04/2017 18:44:24 :::HCHP 8 out with the ruler but Jareb. However, the fact of the matter is that the measurements were carried out with the help of rope. He did not prepare .
even the diagonals nor laid any perpendiculars. He has not even recorded the statements of the parties before starting the demarcation with the help of old musabi.
14. In the case of Bibhuti Bhushan Bank and another vrs.
Sadhan Chandra Sheet and others, reported in AIR 1965 Calcutta 199, of the learned Single Judge of the Calcutta High Court has held that if the Court rejects a Commissioner's report after proper exercise of discretion and holds rt other evidence on the record sufficient for the disposal of the case, it is not obligatory or compulsory on the Court to order another investigation. It has been held has follows.
"6. In my judgment, on construing Order 26, Rules 9 and 10 read with Section 100(c) of the Code of Civil Procedure, 1908, there is no warrant for absolute proposition of law that disregard of the Commissioner's report, made after local investigation, under the provisions of Order 26, Rules 9 and 10 of the Code of Civil Procedure, constitutes an error or defect in the procedure within the meaning of Clause (c) of Section 100 of the Code; or that such disregard affects "the merits of the case" within the said Section 100 as to justify interference in a Second Appeal. If there is no defect in the conduct of a case, if the decision does not involve any principle of law and if the only error, which if it is committed, consists in the Court's drawing a wrong conclusion from evidence, that would not, in my opinion, constitute a substantial error or defect in the procedure. The acceptance or rejection of the Commissioner's report is entirely within the Court's competence. It has full discretion in the matter but the said discretion is to be exercised properly and not capriciously. If the Court rejects a Commissioner's report after proper exercise of discretion, it is not obligatory or compulsory on the Court to order for another investigation.
As the problem, in spite of the strenuous arguments, remained in short, to ascertain the boundary, the appellant in order to set aside the decision of the Court of appeal below, should come forward to show clearly where it is wrong and what other course is right and that merely lack of ::: Downloaded on - 15/04/2017 18:44:24 :::HCHP 9 precision in the materials in boundary cases of this type docs not in my view relieve the Court of the duty of settling a line upon the evidence before it."
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15. In the instant case, while rejecting the report of the Local Commissioner, the Court has also gone into the oral as well as documentary evidence including revenue entries.
16. In the case of Goalakrishnan vrs. P. Shanmugam, reported in AIR 1995 Madras, 274, the learned Single Judge of the Madras High Court of has held that mechanical and indiscriminate appointment of more than one Commission, merely because the Court thinks the other party to the rt proceedings may not be prejudiced or that the expenses for the commissions are going to be borne by the applicant for the purpose, would create an unhealthy practice of not only more than one report on records, but also would lead to the vice of a person or party to the proceedings not being satisfied with the Commissioner's report seeking for the appointment of successive Commissioners, till he is able to get a report of his choice. It has been held as follows:
"5. The learned counsel for the respondent herein vehemently contended that there were some defects noticed in the earlier report of the Commissioner and it is, therefore, the respondent felt that the earlier Commissioner may not impartially discharge his duties, and that is why, the request for a different Commissioner came to be made and countenanced by the Court below. Though, from the pleading and that too the affidavit of his own client the learned counsel for the respondent wanted to contend that the earlier report submitted by the surveyor was defective and has been scrapped, there is absolutely no material whatsoever, on the basis of which this Court can accept such a plea. If a report has been found fault with and has been scrapped, there should have been a specific judicial order in this regard and in the absence of any such order, the mere assertion of either of the parties in their respective pleadings constitute no justification or sufficient material or basis for this Court to accept and countenance such a claim. That apart, I ::: Downloaded on - 15/04/2017 18:44:24 :::HCHP 10 am of the view that merely because on an earlier occasion, the Commission has been re-issued, per is not a justification also to assume that the earlier report submitted by the Surveyor Commissions was bad or perfunctory or deserve to be scrapped. It might have been re-issued .
for getting some additional particulars and that from the fact of re-isssue of commission alone it cannot be contended that the earlier report was bad or that it was scrapped. Further, the very mere fact that the earlier report was not to the liking of the respondent, at whose instance the Commission was ordered earlier was also not a ground to assume that the said Commissioner will not perform his duties impartially when he is asked to re-do the Commission. Such allegations cannot be countenanced liberally for the mere making of them in the absence of any specific or concrete instance furnished or pointed out disclosed lack of or want of impartially on the earlier Commissioner. Mechanical and indiscriminate appointment of more than the Commission, merely because the Court thinks the other party to the proceedings may not be prejudiced or that the expenses for the commissions are going to be borne by the applicant for the purpose would create an unhealthy rt practice of not only more than one report on records, but also would lead to the vice of a person or party to the proceedings not being satisfied with the Commissioner's report seeking for the appointment of successive Commissioners till he is able to get a report of his choice. Permitting such things to happen in the course of trial would lead, not only to the mis-trial of the suit, but also will result in grave miscarriage of justice. For all the reasons stated above, I do not appreciate and cannot approve of the plea taken for the respondent that the second Commission through a different Commissioner is justified in this case, for the reason just pleaded by the learned counsel for the respondent in this Court."
17. In view of this, the Courts below have rightly rejected the demarcation report dated 23/24.7.1995. Thus, it was not necessary for the Courts below to order appointment of new Local Commissioner to demarcate the land to ascertain the encroachment. The learned courts below have touched each and every aspect of the merits of the case, including the manner in which the Local Commissioner has carried out the demarcation on the basis of old musabi. The detailed reasons have been assigned as to why the report of the Local Commissioner was not accepted. The substantial question of law is answered accordingly.
::: Downloaded on - 15/04/2017 18:44:24 :::HCHP 1118. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
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August 11, 2015, ( Rajiv Sharma ),
(karan) Judge.
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