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2002 DIGILAW 33 (HP)

CHET RAM v. ASSOCIATED CEMENT COMPANY

2002-02-26

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J.—This second appeal arises out of the judgment and decree of the learned District Judge, Bilaspur dated 1st June, 1998, whereby first appeal of the appellant Chet Ram, defendant before the trial Court, was dismissed. 2. The facts for the purpose of the disposal of this appeal may be noticed. Respondent-Associated Cement Company Limited, hereinafter referred to as the plaintiff, admittedly is owner of the suit land comprised in Khasra No. 73 and 593/72, measuring 2-9 Bighas, situate in village Nalag of Tehsil Sadar in the District of Bilaspur. This land alongwith other land was acquired for the plaintiff-Company as per award dated 2.4.1981. The possession was delivered to the plaintiff-Company in accordance with law. Mutation whereof was attested on 5th October, 1983. It appears, defendant Chet Ram purchased land comprised in Khasra No. 592/71 from one Ram Dittu by a registered sale deed dated 24th June, 1987. According to the plaintiff-Company, the defendant started interfering in the suit land and dug out foundations to raise construction. The officials of the plaintiff-Company asked defendant not to interfere with the land of the plaintiff, but defendant maintained that he was raising the construction in his own land. Plaintiff-Company lodged a complaint with the Sub Divisional Collector, Bilaspur, who directed the Tehsildar, Sadar, to visit the spot. Thesildar, Sadar further directed the Patwari to visit the spot and report. Patwari Halqua Chet Ram, visited the spot on 20th June, 1994. The demarcation was carried out of the disputed area. A Tatima was prepared and it was found that the defendant held encroached one biswa of land of the plaintiff comprised in Khasra No. 73. 3. The plaintiff-Company, in the facts and circumstances, sought restrain on the defendant from interfering with the possession of the plaintiff over the suit land and also prayed for the delivery of the possession of the land in possession of the defendant after demolition of the construction raised by him. 4. The suit was resisted by the defendant. The allegations were controverted. The defendant pleaded that he purchased 11 biswas of land from Ram Dittu and is in possession of the same. He further stated that he has raised the construction in the land so purchased by him from Ram Dittu. According to the defendant, he has not encroached on any part of the suit land of the plaintiff. The defendant pleaded that he purchased 11 biswas of land from Ram Dittu and is in possession of the same. He further stated that he has raised the construction in the land so purchased by him from Ram Dittu. According to the defendant, he has not encroached on any part of the suit land of the plaintiff. However, in the alternative, he maintained that if he is found to have raised construction on the land of the plaintiff then he has become the owner of the same by way of adverse possession. 5. On the pleadings of the parties learned trial Judge settled the following issues : 1. Whether the plaintiff is owner in possession of the suit land after having acquired it? OPP. 2. Whether the defendant has perfected his title by way of adverse possession over the suit land as alleged? OPD. 3. Relief. 6. Learned trial Judge found that defendant has raised construction over the part of the land of the plaintiff comprised in Khasra No. 73 to the extent of one biswas shown as Khasra No. 73/1 as per Tatima (spot map) Ex. PW-l/A. It was also held by the trial Court that plaintiff has not been able to prove his adverse possession on the encroached land. 7. Dis-satisfied, defendant filed an appeal before the learned District Judge, which was dismissed by the impugned judgment. Still aggrieved, defendant is in second appeal. 8. This appeal was admitted on 17th September, 1998 without framing any substantial question of law. 9. Having heard learned Counsel for the parties, the only substantial question of law which arises for consideration is: 1. Whether the findings of the trial Court as affirmed by the first appellate Court are de hors of the evidence on record? 10. It may noticed that at this stage that during the pendency of this appeal an application in terms of CMP No. 671/98 was filed by defendant Chet Ram for the appointment of Local Commissioner to carry out the demarcation of the respective boundaries of both the parties. This Court on 20th November, 1998 allowed the application and appointed Tehsildar, Bilaspur, as Local Commissioner with the directions to properly carry out the demarcation of the respective boundaries of the lands of both the parties in accordance with the revenue records and documents of title which may be produced before the Local Commissioner. This Court on 20th November, 1998 allowed the application and appointed Tehsildar, Bilaspur, as Local Commissioner with the directions to properly carry out the demarcation of the respective boundaries of the lands of both the parties in accordance with the revenue records and documents of title which may be produced before the Local Commissioner. The Local Commissioner carried out the demarcation on 28th February, 1999 and accordingly submitted his report alongwith Aks Tatima Sazra (the spot position), as found on the demarcation, alongwith Aks Tatima Sazra Kistwar and the copies of the Jamabandies for the year 1995-96 and 1990-91 in respect of the suit land and land of the defendant respectively. The defendant not happy with the report of the Local Commissioner filed objections. According to the defendant, demarcation was not carried out in accordance with the instructions of the Financial Commissioner incorporated in Chapter I-M of High Court Rules and Orders Volume-I, nor the report is in terms of the orders of this Court inasmuch as the Local Commissioner supposed to demarcate and identify the boundaries of the parties i.e. the plaintiff and the defendant. 11. The perusal of the report of the Local Commissioner shows that he carried out the inspection in the presence of the defendant and the counsel of the plaintiff-Company. He fixed the points as detailed by him in the report and the land of the defendant comprised in Khasra No. 592/71 was demarcated. However, defendant refused to sign the demarcation proceedings. 12. This apart, admittedly, defendant purchased Khasra No. 592/71 measuring 11 biswas from Ram Dittu on 24th June, 1986. It is the case of the defendant that he has raised construction of his house-cum-shop on this land. Tatima as prepared on the spot by the Local Commissioner shows that the boundaries of this particular Khasra No. i.e. 592/71 are not common with the suit land which is comprised in Khasra No. 593/72 and 73. In between the land of the defendant Khasra No. 592/71 and land comprised in Khasra No. 73/1 and 593/72 is land of Ram Dittu comprised in Khasra No. 594/72. This situation is also apparent from the spot map Ex. PW-1/ A as proved by Patwari Chet Ram who demarcated the land on the instructions of the Sub Divisional Collector. In between the land of the defendant Khasra No. 592/71 and land comprised in Khasra No. 73/1 and 593/72 is land of Ram Dittu comprised in Khasra No. 594/72. This situation is also apparent from the spot map Ex. PW-1/ A as proved by Patwari Chet Ram who demarcated the land on the instructions of the Sub Divisional Collector. It may also be pertinent to note that the defendant had also moved an application, during the course of the hearing of his first appeal, before the learned District Judge, for the appointment of a Local Commissioner to demarcate the land. It was the case of the defendant before the learned District Judge that demarcation which was given earlier by the Patwari was not correct. Accordingly, the then Tehsildar, Sadar, Bilaspur, was appointed Commissioner who demarcated the land on 27th March, 1998 in the presence of the defendant and the representative of the plaintiff-Company. In this demarcation it was found that Chet Ram defendant has raised construction in Khasra No. 73 which land was acquired for the plaintiff-Company Spot Tatima prepared by the Commissioner shows that there is a land comprised in Khasra No. 594/72 owned by Ram Dittu in between Khasra No. 592/71 of the defendant and Khasra No. 73 of the plaintiff. This position is not disputed before me. The conclusion is inevitable that there are no common boundaries between the land of the defendant and Khasra No. 73 owned by the plaintiff in which defendant had raised his construction. Therefore, the question, whether the demarcation was carried out by the Commissioner appointed by this Court in accordance with the instructions of the Financial Commissioner or not is of no consequence. It may be noticed that this Court had directed the Local Commissioner "to properly carry out demarcation of the respective boundaries of the land of both the parties". The fact situation as pointed out earlier is that there is no common boundary between the land of the plaintiff and Khasra No. 73 of the defendant on which encroachment was found and in respect of which defendant has suffered the decree. There is no merit in the objections raised by the appellants against the demarcation report. The objections are dismissed. 13. So far the merits of the case are concerned, learned trial Court had discussed evidence in detail. It is not in dispute that Khasra Nos. There is no merit in the objections raised by the appellants against the demarcation report. The objections are dismissed. 13. So far the merits of the case are concerned, learned trial Court had discussed evidence in detail. It is not in dispute that Khasra Nos. 73 and 593/72, the suit land, are owned by the plaintiff-Company It is also admitted position that defendant Chet Ram is owner of the land measuring 11 biswas comprised in Khasra No. 592/71 as per Jamabandi for the year 1985-86 and 1990-91 having purchased it from Ram Dittu. It is proved on record that the construction raised by the defendant falls in Khasra No. 73 owned by the plaintiff-Company. 14. Patwari Chet Ram appearing as PW-1 categorically stated that he inspected the spot, demarcated the land of the defendant and the plaintiff and found that the construction raised by the defendant was in Khasra No. 73. He prepared the spot map of the encroached portion by defendant in terms of Ex. PW-1/A. Chet Ram, defendant, appearing as DW-1 maintained that he has raised the construction in his own land and has never interfered with the possession of the plaintiff in the land in dispute. It is his evidence that he has raised the construction on the land purchased by him from Ram Dittu. According to him, this construction was raised by him 7 or 8 years prior to the date when he was examined in the Court. He was examined in the Court in November, 1996, therefore, of the own showing of the defendant he raised the construction in the year 1988-89. There is no evidence on record to show that the construction raised by the defendant is in the land comprised in Khasra No. 592/71. Both, Chint Ram (DW-2) and Gulaba Ram (DW-3), witnesses of the defendant state that the construction is raised in the land in suit, i.e. the land owned by the plaintiff-Company. 15. So far plea of adverse possession is concerned, there is not iota of evidence to support the same. Defendant himself stated that he raised this construction in the year 1988-89. The suit was filed in the year 1994. In the facts and circumstances, there is no question of adverse possession. Even Chint Ram (DW-2) and Gulaba Ram (DW-3) do not support- the case of the defendant. Defendant himself stated that he raised this construction in the year 1988-89. The suit was filed in the year 1994. In the facts and circumstances, there is no question of adverse possession. Even Chint Ram (DW-2) and Gulaba Ram (DW-3) do not support- the case of the defendant. Chint Ram states that the construction was raised by the defendant 2 or 3 years prior to his examination, but then improved to state that it was raised 6 or 7 years prior to his examination in the Court, which would mean that the construction was raised somewhere in the year 1989-90. Gulaba Ram states that the construction was raised by the defendant 7/8 years prior to his examination in the Court, which again would mean that construction was raised somewhere in the year 1988-89. The evidence led by the defendant does not show his adverse possession. 16. In view of the evidence on record, it cannot be said that the findings recorded by the trial Court and the first appellate Court are de hors of the evidence or not in accordance with the evidence on record. 17. It is not permissible for the High Court to interfere in the second appeal even if another view was possible on the reappreciation of evidence on record as pointed out in Ishwar Dass Jain (dead) through LRs. v. Sohan Lai (Dead) by LRs., (2000) 1 SCC 434. There are two situations in which the findings of fact recorded by the first appellate Court can be interfered with. The first one is when material or relevant evidence was not considered which, if considered, would have led to an opposite conclusion. The second situation is where the findings have been recorded by the first appellate Court by placing reliance on inadmissible evidence and such evidence if omitted would lead to opposite conclusion. Such is not the situation in this case. 18. There is no merit in this appeal, the same is dismissed. However, the parties are left to bear their own costs. Appeal dismissed.