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2010 DIGILAW 1150 (HP)

Nirmala Devi v. Amar Chand

2010-09-27

SURJIT SINGH

body2010
JUDGEMENT Surjit Singh, Judge(Oral) This RegularSecond Appeal by the plaintiff is directed against the judgment and decree, dated 9.2.2000 of learned District Judge, whereby his appeal against the judgment and decree, dated 28.11.1990, of learned trial Court, by which her suit was dismissed, has been dismissed and the aforesaid judgment and decree, dated 28.11.1990, of learned trial Court affirmed. 2. Appellant-plaintiff filed a suit for declaration that she was owner in possession of land, bearing Khasra No.496/87/1, measuring 19 Marlas, which she claimed to have purchased from one Salig Ram, some time in the year 1979. By way of further relief, she prayed for issuance of permanent prohibitory injunction, restraining the respondent-defendant from causing any interference in her possession over the said land. It was stated that after purchasing the suit land from Saligram, in the year 1979, appellant-plaintiff had constructed her house thereon in the year 1979 itself and ever since she had been in possession thereof. Later on, plaint was amended and relief of mandatory injunction and possession was added. It was stated that in case Court came to the conclusion that respondent-defendant was in possession of any portion of the suit land and had raised any structure on any portion thereof, a decree of mandatory injunction for demolition of that structure and possession of vacant site of such structure be also passed in her favour. 3. Suit was contested by the respondent-defendant on the ground that the defendant had acquired title by prescription. It was stated that he had constructed his house on adjoining land, bearing Khasra No.509/88 and that at the time of construction of the house, latrines, in question, had also been raised. It was stated that initially it was a kutcha structure and later on it was replaced by a pucca structure. 4. Trial Court upheld the plea of adverse possession, as raised by the respondent-defendant and dismissed the suit. First appellate Court, which was approached by the appellant-plaintiff, dismissed the appeal. 5. Present appeal was admitted on the following substantial questions of law: “1. Whether the boundary dispute could be resolved without getting the fresh demarcation conducted in accordance with the High Court Rules and Orders and instructions of the Financial Commissioner once the trial Court had not accepted the report of the Local Commissioner Ext. LC/2 and DW12/A as valid? 5. Present appeal was admitted on the following substantial questions of law: “1. Whether the boundary dispute could be resolved without getting the fresh demarcation conducted in accordance with the High Court Rules and Orders and instructions of the Financial Commissioner once the trial Court had not accepted the report of the Local Commissioner Ext. LC/2 and DW12/A as valid? 2.Whether in view of the fact that the report of the Local Commissioner having been confirmed by the trial Court on 23.9.1987 which was affirmed in Civil Revision No.202 of 1987 on 27.7.1988, the demarcation report Ext. LC/2 could be ignored and in view of the clear findings that if the area was measured taking five Karukans, then certainly the defendant was encroacher and the plaintiff could be denied the relief of mandatory injunction? 3.Whether plea of adverse possession could be sustained in the absence of pleading the ingredients of adverse possession from a particular starting point particularly when the defendant had purchased 1/3rd share of the property in 1996 and claimed to have made the construction in 1964 which contradicted the stand of the defendant.” 6. I have heard learned counsel for the parties and gone through the record. 7. During the course of trial, parties examined themselves and also some witnesses. Plaintiff, besides examining herself, examined Saligram, from whom she claimed to have purchased the suit land. Oral evidence adduced by the parties suggests that the dispute is with respect to the site, which is under four latrines, constructed by the respondent-defendant. 8. Case of the respondent-defendant is that latrines were constructed at the time of construction of the house by him in the year 1964. Plaintiff’s case is that latrines were constructed in the year 1984, when she alongwith her husband Manohar Lal, whom she had appointed as her attorney and who appeared as PW-1, had gone to her village, in connection with the death of her father-in-law. 9. When the respondent-defendant has taken a specific stand that latrines were constructed in the year 1964 and he has acquired title by prescription, which fact implies that he concedes that the site of the latrines is part of the land, bearing Khasra No.496/87/1, purchased by the appellant-plaintiff from PW-2 Salig Ram, there was hardly any occasion for appointment of a local commissioner for demarcation of the site in dispute. Need for appointment of a local commissioner would have been there had the respondent defendant denied that latrines are on a portion of Khasra No.496/87/1. Consequently, substantial question of law No.1 is answered against the appellant. 10. Appellant-plaintiff alleges that there was a report of Local Commissioner Ext. LC/2, which had been affirmed by the trial Court and revision filed against the order affirming such report, had been dismissed by this Court. This fact is not correct. Of course, trial Court had passed an order rejecting objections against the report of Local Commissioner and that order was challenged by filing a revision petition in this Court, but, that revision petition had not been dismissed. In fact, it was ordered in revision that the trial Court will consider the objections raised by the respondent-defendant at the time of final hearing of the suit. Trial Colurt, thereafter, reconsidered the objections and rejected the report of the Local Commissioner. Consequently, it is held that substantial question of law No.2 does not arise from the record. 11. As regards substantial question of law No.3, respondent-defendant took specific plea of adverse possession. All the ingredients of adverse possession were pleaded. It was specifically pleaded that latrines had been at the site where they stand at present, for the last more than 20 years and they were raised, when the defendant-respondent constructed his house. It was also pleaded that possession of the respondent-defendant was open, hostile, as of right and even prior to the purchase of the suit land by the appellant-plaintiff from its previous owner Shri Saligram, who was examined by the plaintiff as PW-2. No doubt PW2 Saligram stated in the examination-in-chief that four latrines had been constructed only 5-6 years back, but in the cross-examination he admitted that respondent-defendant had been in occupation of the site, in question, even at the time when he was not its owner, that is to say, prior to the sale of suit land to appellant-plaintiff, which fact supports the plea of the respondent-defendant that the latrines are there in existence since the time of construction of house by him. And he had constructed his house in the year 1964, even according to the evidence of the appellant-plaintiff. So, substantial question of law No.3 is answered against the appellant. 12. As a result of above discussion and answers to the substantial questions of law, appeal is dismissed.