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2012 DIGILAW 171 (HP)

Jagat Ram v. Karmi Devi widow of Tulsi Ram

2012-04-09

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 28.10.2005 rendered by the learned Additional District Judge, Fast Track Court, Hamirpur in Civil Appeal No.24 of 2001/ 230 of 2004. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit against the predecessor-in-interest of the respondents, namely, Tulsi Ram (hereinafter referred to as ‘defendant’ for convenience sake) for permanent prohibitory injunction with respect to suit land comprising Khata No.6 min, Khatoni No. 27 min, Khasra No. 1888 measuring 5 Marlas situated in Tikka Dain, Tappa Lohdar, Tehsil Barsar, District Hamirpur on the allegations that he is the co-owner in possession of the suit land. The defendant has no concern with the suit land. He has started digging the suit land with a view to raise construction of his Danga (retaining wall) on the same. He got the land demarcated in February, 1994. The boundary was fixed but the defendant has not cared for the boundary. The cause of action arose to the plaintiff in the 3rd week of June, 1995. 3. Defendant has filed written statement. He has pleaded that no digging was done, as alleged. The issues were framed by the learned Sub Judge 1st Class, Barsar on 29.3.1996. Sub Judge 1st Class, Barsar decreed the suit for demarcation of the suit land. He further ordered that the boundaries of the disputed land be fixed in accordance with the demarcation report Ex.P-2. Defendant was restrained by a decree of perpetual injunction from interfering in the peaceful ownership and possession of the plaintiff over the suit land or raising construction in any manner whatsoever. He also passed the decree for possession of a part of the land in suit, i.e. Khasra No. 1888/1 in favour of the plaintiff. Defendant preferred an appeal before the learned Additional District Judge, Fast Track Court, Hamirpur. He partly allowed the appeal. The decree for injunction passed by the learned Sub Judge was affirmed, however, decree of the learned Sub Judge qua possession of 7 Sarsai out of the suit land was set aside and the decree to this extent was modified. The plaintiff has come in the Regular Second Appeal against the judgment and decree dated 28.10.2005. The decree for injunction passed by the learned Sub Judge was affirmed, however, decree of the learned Sub Judge qua possession of 7 Sarsai out of the suit land was set aside and the decree to this extent was modified. The plaintiff has come in the Regular Second Appeal against the judgment and decree dated 28.10.2005. It was admitted on the following substantial question of law on 1.5.2006: “Whether the decree of the first Appellate Court, dismissing the relief regarding vacation of encroachment, is contrary to law, in view of the finding by both the Courts below that encroachment is there?” 4. Mr. Ajay Sharma has supported the judgment and decree passed by the learned trial court. According to him, the learned first appellate court has misread and misconstrued Ex.P-2 copy of report of the Local Commissioner. 5. Ms. Devyani Sharma has supported the judgment and decree passed by the learned first appellate court. 6. I have heard the learned counsel for the parties and have perused the records carefully. 7. Plaintiff has appeared as PW-1. According to him, he alongwith others is the owner of the suit land. His shares are 6 out of total 48 shares. Defendant has no concern with the same. Defendant tried to raise a Danga over the same in the month of June, 1995. 8. Defendant has testified, while appearing DW-1, that he is having 9th share in the suit land. He did not raise any construction over the suit land. He has admitted that Tehsildar Barsar had visited the spot as Local Commissioner to demarcate the suit land. He has denied that the land of the plaintiff was found in his possession. He has further testified that his land adjoins the suit land. 9. Defendant in his examination-in-chief has stated that he is having 9th share in the suit land. This deposition is contrary to the revenue record. According to Ex.P-1 jamabandi for the year 1978-79, the plaintiff alongwith others is owner of the suit land. Name of the defendant does not find figure in the same. 10. The demarcation of the suit land was carried out by the Local Commissioner, i.e. Tehsildar, Barsar. He submitted the report Ex.P-2 dated 12.2.2000. Ex.P-3 is the copy of Aks Shajra Kistwar. Name of the defendant does not find figure in the same. 10. The demarcation of the suit land was carried out by the Local Commissioner, i.e. Tehsildar, Barsar. He submitted the report Ex.P-2 dated 12.2.2000. Ex.P-3 is the copy of Aks Shajra Kistwar. It is established from the report that the defendant has encroached upon the part of the suit land measuring 7 sarsai comprising Khasra No. 1888/1. Thus, the ownership and possession of the plaintiff over the suit land is proved. The learned trial court has decreed the suit of the plaintiff for possession as well. However, the first appellate court has partly accepted the appeal and decree for possession of 7 sarsai of land out of the suit land has been set aside. The basis for setting aside the judgment to this extent is on the basis of report of Local Commissioner, i.e. Ex.P-2. Defendant has no right, title and interest over the suit land. Defendant has not raised objection against the report of the Local Commissioner, which has attained finality. 11. The Court is of the considered view that the first appellate court has misread the report Ex.P-2. According to Ex.PW-2, it has been conclusively proved that the defendant has encroached upon 7 sarsai of land comprising Khasra No. 1888/1. Learned first appellate court has brushed aside these findings only by giving weightage to the minor contradictions in the report and the statement made by the plaintiff. What plaintiff has deposed, while appearing as PW1, is that the defendant has taken possession of the suit land by constructing a Danga, however, in the report it has been shown that the defendant instead of constructing Danga has been cultivating the same. The fact of the matter remains that the defendant has encroached upon the part of the suit land. The findings recorded by the first appellate court that defendant has not encroached upon 7 sarsai of land are erroneous and are outcome of misreading of Ex.P-2. 12. Accordingly, in view of the observations and discussions made hereinabove, the Regular Second Appeal is allowed. The judgment and decree passed by the first appellate court is set aside and the judgment and decree passed by the Sub Judge 1st Class, Barsar is restored in its entirety. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.