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2011 DIGILAW 2406 (HP)

Jagdish Chand v. Prem Singh

2011-08-19

RAJIV SHARMA

body2011
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree dated 25.9.2010 passed by the learned Additional District Judge (Fast Track Court), Hamirpur in Civil Appeal No. 19 of 2010. 2. Material facts necessary for adjudication of this regular second appeal are that the Respondents/Plaintiffs (hereinafter referred to as "the Plaintiffs" for convenience sake) instituted a suit for permanent prohibitory injunction in respect of the land comprised in Khata No. 1 min, Khatauni No. 1, Khasra Nos. 296, 317 and 318 new, measuring 0-16-53 square metres as per Misal Hakiat Bandobast Jadid Sani for the year 1996-97 (hereinafter referred to as "the suit land" for brevity sake) and in the alternative for possession of the suit land, in case the Appellants/Defendants (hereinafter referred to as "the Defendants" for convenience sake) succeed in dispossessing the Plaintiffs therefrom during the pendency of the suit. According to the Plaintiffs, they were owners in possession of the suit land alongwith other co-sharers and the Defendants were completely strangers and have no right, title or interest in the same. The Defendants have started causing interference over the suit land and they were threatening to raise construction over the same. 3. The suit was contested by the Defendants. According to the Defendants, they have never threatened or interfered in the suit land. According to them, if they were found in possession of any portion of the suit land, in that eventuality, they have become owners of the same by way of adverse possession. 4. Issues were framed by the learned trial Court on 16.6.2000. The learned Civil Judge (Junior Division), Hamirpur decreed the suit on 15.1.2010. Defendants preferred an appeal before the learned Additional District Judge (Fast Track Court), Hamirpur. He dismissed the same on 25.9.2010. Hence this regular second appeal. 5. Notices were issued to the Respondents and Shri P.C. Sharma, Advocate has put in appearance on behalf of Respondents/ Plaintiffs No. 1 and 2. 6. Mr. K.S. Banyal, learned Counsel for the Defendants, on the basis of substantial questions of law framed, has strenuously argued that the suit of the Plaintiffs could not be decreed in view of the statement of PW-3. He also argued that both the Courts below have misread, misconstrued and misinterpreted the entire evidence brought on record while decreeing the suit. 7. Mr. He also argued that both the Courts below have misread, misconstrued and misinterpreted the entire evidence brought on record while decreeing the suit. 7. Mr. P.C. Sharma, learned Counsel appearing on behalf of Plaintiffs No. 1 and 2 has supported the judgments and decrees passed by both the Courts below. 8. I have heard learned Counsel for the parties and gone through the pleadings carefully. 9. Plaintiff No. 1 has appeared as PW-1. According to him, he was in possession of the suit land alongwith Satya Devi and Ashok Kumar and Bhagat Ram. The Defendants started digging the suit land on 23.11.1998. They also threatened to raise construction over the same. The Local Commissioner visited the spot and gave correct demarcation of the suit land. On demarcation, it was found that the suit land measuring one kanal was found to have been encroached upon by the Defendants by way of cultivation and at that time the Defendants had agreed to give land in exchange to the Plaintiffs in lieu of the encroached land, but till date they have not given any land in lieu of the encroached land. 10. PW-2, Laxmi Dutt Thakur was appointed as Local Commissioner. He submitted his report Ex.PW-2/A. He has prepared his report on the basis of Latha and Aks Musabi. The statements of the parties were recorded before three pucca points 'ABC' were fixed. The joint statements of the parties were recorded on 14.1.2002. The objections raised by the Defendants against the Local Commissioner's report were rejected. 11. PW-3, Amar Singh has supported the version of PW-1. According to him, the Plaintiffs were in possession of the suit land and Defendants were in illegal possession of one kanal land. 12. DW-1, Jagdish Chand and DW-2, Madan Lal have deposed that Defendants were possessing the suit land in the year 1973. The evidence of D Ws-1 and 2 is belied by Misal Hakiat Ex.P-1. This Misal Hakiat is of the year 1995-96. As per Ex.P-1, Plaintiffs are recorded owners in possession of the suit land alongwith other co-sharers. It has come in the evidence that the age of DW-2 in 1973 was hardly 18 years. He could not narrate how many persons were allotted land by the State Government. He could also not narrate how much time the Defendants had taken to make the land cultivable. 13. It has come in the evidence that the age of DW-2 in 1973 was hardly 18 years. He could not narrate how many persons were allotted land by the State Government. He could also not narrate how much time the Defendants had taken to make the land cultivable. 13. The Defendants have also taken the plea of adverse possession. However, the same has not been proved. The necessary ingredients of adverse possession, i.e. commencement period, open, uninterrupted and hostile possession has not been proved. In order to prove adverse possession, the party has to lead tangible evidence. In the present case, the pleadings as well as the evidence led by the Defendants is vague and sketchy. The statement of PW-3 was to be read as a whole and not in isolation, as argued by Mr. K.S. Banyal, learned Counsel for the Defendants. 14. Accordingly, in view of the observations and discussions made hereinabove, there is no substantial question of law involved in this regular second appeal and the same is dismissed, so also the pending application(s), if any. No costs.