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2009 DIGILAW 944 (HP)

VISHAL PURI v. BIASAN DEVI

2009-10-30

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, J.(Oral)-This appeal has been directed against the judgment, decree dated 18.6.2008 passed by the learned District Judge, Hamirpur in Civil Appeal No. 20 of 2005 affirming judgment, decree dated 8.12.2004 passed by the learned Civil Judge (Junior Division), Court No.1, Hamirpur in Civil Suit No. 22 of 1969. 2. Smt. Ajudhia Devi predecessor of appellant had filed suit for possession on the grounds that she was owner in possession of the suit land, the respondents are owners of adjoining land and they have encroached the suit land. The respondents contested the suit and denied the claim of Smt. Ajudhia Devi. The replication was filed and the stand of the respondents was denied. The learned trial Court had framed the following issues: 1. Whether the defendants have encroached upon the land in suit as alleged? ..OPP. 2. Whether the suit is barred by res-judicata as alleged? ..OPD. 3. Whether the plaintiff is entitled to the relief of possession by demolition as alleged? ..OPD. 4. Whether the plaintiff estopped from filing the present suit by her act and conduct ? ...OPD. 5. Relief. The issues No. 1 to 4 were answered in negative and the suit was dismissed on 8.12.2004. The learned District Judge dismissed the appeal on 18.6.2008 and the issue of res-judicata was also decided against the appellant. In these circumstances, second appeal has been filed. 3. Mr. R.K.Gautam, learned Senior Advocate has submitted that the demarcation was not carried out in accordance with the High Court’s judgment dated 12.9.1997 and the instructions of Financial Commissioner, H.P. and the rules framed by the High Court. He has submitted that the issue of resjudicata has been wrongly decided by the learned lower Appellate Court against the appellant. Mr. K.D.Sood, learned counsel appearing on behalf of the respondents has supported the impugned judgment, decree. 4. The learned senior Advocate appearing on behalf of the appellant has submitted that no notice was given by the Local Commissioner before demarcation was carried out. He has also submitted that the demarcation has not been carried out as per the directions of the High Court as well as instructions of Financial Commissioner and rules of the High Court for carrying out demarcation. He has also submitted that the demarcation has not been carried out as per the directions of the High Court as well as instructions of Financial Commissioner and rules of the High Court for carrying out demarcation. In so far the notice of demarcation by the Local Commissioner to the attorney of plaintiff is concerned, the learned District Judge has recorded a specific finding that Dina Nath, General Power of Attorney of plaintiff was informed regarding the demarcation orally. The Local Commissioner through Patwari on the spot asked Dina Nath telephonically to come to the spot in presence of all but despite that Dina Nath did not turn up. This finding recorded by the learned District Judge regarding the intimation given to Dina Nath, General Power of Attorney holder of plaintiff by the Local Commissioner was not contradicted by the learned senior Advocate. In these circumstances, it cannot be said that the plaintiff was not given intimation regarding the local inspection which was to be carried out by the Local Commissioner. 5. The submission of the learned Senior Advocate that demarcation was not carried out in accordance with the directions of the High Court, Financial Commissioner’s instructions and the rules of the High Court has no force nor these submissions have been elaborated. The learned District Judge has recorded a finding that demarcation was conducted on the spot in accordance with the instructions issued in this behalf by the High Court contained in the High Court Rules and Orders and also as per the instructions issued by the Financial Commissioner. The learned Senior Advocate appearing on behalf of the appellant has submitted that the Local Commissioner had altercation on the spot and therefore, he did not give proper demarcation. This submission is noticed only to be rejected as the fact of alleged altercation and its bearing on the demarcation and demarcation report has not been established. The demarcation report has been accepted by the learned District Judge by giving reasons. 6. The learned Senior Advocate has also submitted that the learned District Judge has erred in deciding the issue of resjudicata against the appellant. There is no substance in this submission nor it has been established that the findings on issue of resjudicata recorded by the learned District Judge are perverse. 6. The learned Senior Advocate has also submitted that the learned District Judge has erred in deciding the issue of resjudicata against the appellant. There is no substance in this submission nor it has been established that the findings on issue of resjudicata recorded by the learned District Judge are perverse. In any case the appellant has failed to make out a case that the respondents had encroached the suit land. The two courts below have recorded a finding of fact and rejected the case of appellant. No substantial question of law is involved in the appeal which is accordingly dismissed with no order as to costs.