Research › Browse › Judgment

Himachal Pradesh High Court · body

1997 DIGILAW 180 (HP)

RAM ASRA v. BHAGU

1997-05-15

SURINDER SARUP

body1997
JUDGMENT Surinder Sarup, J. (Oral): This second appeal is directed against the judgment and decree of the Courts of Ms Kiran Agganwal, District Judge, Una dated 02.05,1991, whereby allowing the appeal of the defendant - respondent, she has set aside the judgment and decree of the trial Court i.e. the Court of Shri Shamsher Singh, Senior Sub Judge, Una dated 27.10.1988. As a result of the said judgment of the trial Court, the suit of the plaintiff for possession as per site plan Ex.P-1 and P-l/1 was decreed. 2. The facts, giving rise to the present appeal are that the plaintiff-appellant Asra Ram filed a suit for possession of land described in the plaint. According to him, he was the owner of the same but in the first week of February, 1984, the defendants, who are very head-strong and influential persons started encroaching upon the land denoted by letters ABCDEFGH of above two khasra numbers, and included the same in their khasra numbers 1131 and 1136 and on demarcation taken by him on 16.2.1984 the defendant were found in illegal possession of the same, hence the suit. 3. In the written statement, the defendants contested the suit and denied the allegations made in the plaint. It has been stated that the plaintiff, under the garb of the present suit is trying to encroach upon the area comprised in khasra Nos. 1131, 1132 and 1136 owned and possession by them and other persons and the owners who are the co-owners of these two Khasra numbers, are also the necessary parties. It was also pleaded that the site plan, produced by the plaintiff is wrong. On the pleadings of the parties, the following issues have been framed: "1. Whether the site marked ABCD in the site plan comprises of Khasra No. 1129 and site marked with letters CDEFGH is part of Khasra No. 1116 in suit and the defendants have encroached upon the same? OPP 2. Relief." 4. Issue No. 1 having been decided in favour of the plaintiff, the suit was decreed in the terms aforesaid. 5. In appeal, the learned lower appellate Court has meticulously discussed the evidence on record of both the parties and has come to the conclusion that the findings arrived at by the lower Court on Issue No. 1 cannot be allowed to sustain. 5. In appeal, the learned lower appellate Court has meticulously discussed the evidence on record of both the parties and has come to the conclusion that the findings arrived at by the lower Court on Issue No. 1 cannot be allowed to sustain. In the considered view of this Court, the findings of the lower appellate Court are well based having been arrived at on appreciation of evidence, which has been properly appraised. 6. I have heard the learned counsel for the parties and have gone through the record. It has been submitted by the learned counsel for the appellant that the Jamabandis on record Ext.P-5 etc. as also the oral evidence of the plaintiff clearly make out a case in his favour. As regards this submission, it is clear from the discussion of the evidence in para 12 of the impugned judgment that the plaintiff in his own statement had deposed regarding encroachment of the land by the defendants in February, 1984, however, he has failed to disclose as to how he derived the knowledge that the land had been encroached upon by the defendants. He also referred to a report of Local Commissioner, who was appointed by the Court but that Commission was appointed after the institution of the suit. In other words, not being an expert, die plaintiff only echoed the report of the Local Commissioner. To the same effect, is the statement of other witness, namely Babu Ram (PW-2). Therefore, both the statements have rightly been discarded by the learned lower appellate Court. 7. The report of the Local Commissioner is based mainly on the site plan Ex.P-1 on record. The report is dated 13-01-1986. As found by the learned lower appellate Court, it is not accompanied with any Tatima having been prepared by the Local Commissioner at the spot after making the measurements nor with the statements of the parties or other respectable who allegedly remained present at the spot, while making the measurements. The Local Commissioner has also not been examined to prove this report. The Local Commissioner has also not been examined to prove this report. Although on behalf of the plaintiff-appellant 1979 PLJ12 was referred to, the proposition that on its basis the report of the Local Commissioner is to be read in evidence without it being formally proved, yet the said report suffers from inherent infirmities, as spelt out in the impugned judgment i.e. no Tatima having been prepared, no measurement having been taken on the spot, no statement of the persons present on the spot recorded etc. Not only that, the Local Commissioner did not even record the statements of the parties i.e. the plaintiff and the defendant- respondent, who were present on the spot. Therefore, the report has rightly been discarded by the learned lower appellate Court. 8. The learned lower appellate Court has not stopped mere. She has gone on to discuss the evidence produced by defendant. The evidence was in the form of defendant Bhagtu himself and one other witness, namely, Milkhi Ram. Both of them have specifically denied any encroachment, as alleged. It went to the extent of visiting the spot and preparing the spot inspection note which is in the Court file. I have gone through the same and I find no reason to differ from it. Her finding that from the perusal of the spot with the help of the revenue officials, it transpired that during consolidation in the year 1967-68, and settlemetn in the year 1986-87, there is a lot of confusion in the description of the area of Khasra numbers of the parties and the area shown under their respective abadis and keeping in view the spot situation as depicted in the inspection note as well as the insufficient and un-satisfactory evidence of the plaintiff, it cannot be said that the plaintiff has succeeded in establishing the encroachment of the disputed land on the part of the defendants, calls for no interference. 9. For the aforesaid reasons, no fault can be found with the impugned judgment and decree dated 02-05-1991. 10. Before parting with this judgment, I am constrained to observe that the trial Court, i.e. Shri Shamsher Singh, Session Judge, Una, while deciding the suit of the plaintiff has completely ignored the settled principles of civil law. 9. For the aforesaid reasons, no fault can be found with the impugned judgment and decree dated 02-05-1991. 10. Before parting with this judgment, I am constrained to observe that the trial Court, i.e. Shri Shamsher Singh, Session Judge, Una, while deciding the suit of the plaintiff has completely ignored the settled principles of civil law. He has wrongly relied on the report of the Local Commissioner, which suffers from number of infirmities, as spelt out in the impugned judgment of the lower appellate Court. His appreciation of the evidence of the parties also calls for adverse comments. It appears that Shri Shamsher Singh needs a refresher Course in civil law. Propriety of judicial conduct restrains this Court from making any further comments on the approach of Shri Shamsher Singh in this case. 11. For the reasons recorded above, this appeal fails and is dismissed, but in the facts and circumstances without any order as to costs. The judgments and decree of the lower appellate Court are hereby affirmed. A copy of this judgment be sent to Shri Shamsher Singh, who is now posted as Addl District Judge, Shimla for his perusal and guidance.