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1996 DIGILAW 235 (HP)

Diwakar Dutt Shastri v. Ranjit Singh

1996-11-21

P.K.PALLI

body1996
JUDGMENT : P.K. Palli, J. This review petition has been filed by the petitioner for reviewing the judgement and decree dated April 16, 1996 passed by this Court in Regular Second Appeal No. 393 of 1990. The appeal was dismissed. 2. In the application, it is stated that the respondent/plaintiff was granted a decree for mandatory injunction directing the petitioner/defendant to remove the encroachment which he has made on the land belonging to the plaintiff/respondent. The appeal filed by the petitioner/defendant was dismissed by the learned first appellate Court and the second appeal filed by him, stands dismissed on April 16, 1996. 3. It is said that the judgement and decree is based on the report made by the Local Commissioner in respect of encroachment having been made by the defendant/petitioner. 4. The petitioner after the judgement, is said to have approached the Settlement authorities in order to ascertain what the Settlement authorities have recorded regarding the possession of the parties in respect of the suit land. He obtained copies of 'Tatima' 'Misal Hakiat Bandobast, Up-Mahal, Kaithu on April 16, 1996 regarding his land in and in view of these documents, it is said that the petitioner is recorded as owner in possession in the 'Misal Hakiat' pertaining to the land in question. The petitioner is further said to have obtained these documents on April 23, 1996 which have been placed alongwith the review petition with the prayer that these documents' are very significant and for one reason or the other, were not in the knowledge of the petitioner and would show that no part of the land belonging to the other side is shown in possession of the petitioner in any capacity. It is also sought to be urged that the report relied upon in the second appeal is contrary to this record and this record which has been now obtained by the petitioner, attaches presumption of truth and, thus, the judgement needs to be re-called and reviewed. 5. Mr. Verma, while opposing the review petition, has urged in reply that the Settlement operations were carried out between 1987 and 1990 when the suit was pending before the learned trial Court. 5. Mr. Verma, while opposing the review petition, has urged in reply that the Settlement operations were carried out between 1987 and 1990 when the suit was pending before the learned trial Court. The petitioner was in fact aware of the Settlement proceedings as he had himself made a reference to it in the suit filed by him against the respondent where in para 3 of the plaint it has been stated that the petitioner had come to know about the encroachment made by the respondent and for that purpose reliance was being placed on 'ISTKHARAJ RAKWA' indicated in the 'AKS-SHAJRA' of Mauza Kaithu which was prepared by the Patwari Settlement on 28th July, 1990. This is said to have been done on the basis of the demarcation carried at the site. 6. I have gone through the averments contained in para 3 of the plaint in a suit filed by Diwakar Dutt Shastri against Ranjit Singh. It, thus, transpires that both the sides were alleging encroachments having been made was subject matter of the civil suit as well as the Regular Second Appeal which stands decided by this Court. It was on appreciation of the evidence placed on record by the parties that a categoric finding has been recorded holding that the defendant has encroached upon the land of the plaintiff for which a decree of mandatory injunction stands passed against him. It also cannot be said that the applicant/defendant came to know about the Settlement proceedings only after the judgement had been delivered by this Court on April 16, 1996. 7. In view of the averments contained in para 3 of the plaint filed by the petitioner, reference to which has already been made above, the petitioner very well knew about the Settlement proceedings since he had himself obtained a report in the year 1990 reference to which has been made therein. 8. The matter can be examined yet from another angle. Though there is a presumption of truth to the entries made in the Settlement record, yet it is after all a presumption only. The question whether there was any encroachment or not, was one of fact and had to be decided on appreciation of evidence placed on record by the parties, the issue already stands decided. 9. Though there is a presumption of truth to the entries made in the Settlement record, yet it is after all a presumption only. The question whether there was any encroachment or not, was one of fact and had to be decided on appreciation of evidence placed on record by the parties, the issue already stands decided. 9. A perusal of the documents which have been attached to the review petition, reveals that these are of the year 1987 and 1990. These documents, in my view, are hardly material to show that the applicant/ defendant has not encroached upon the site belonging to the plaintiff/ respondent. 10. In my considered view, there are no sufficient grounds for reviewing the judgement passed by this Court on April 16,1996. The review petition is accordingly dismissed with no order as to costs.