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2012 DIGILAW 257 (HP)

Santosh Singh v. Puran Singh

2012-05-07

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. - This Regular Second Appeal is directed against the judgment and decree dated 23.6.2011 rendered by the learned District Judge, Hamirpur in Civil Appeal No. 222 of 2008. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as plaintiff for convenience sake) filed a suit for fixing boundaries by way of demarcation. According to the plaintiff, he is in possession of the land comprised in Khata No. 56 min, khatauni No. 57 min, Khasra Nos. 721, 722, 729, 736, 738 and 739 measuring 0-09-67 hectares, situated in Up Mahal Tillu (1), Mauza Jalari, Tehsil Nadaun, District Hamirpur, Himachal Pradesh according to the jamabandi for the year 1996-97. Land of the plaintiff abuts the land of appellant-defendant (hereinafter referred to as defendant for convenience sake). Defendant, without having any right, title and interest in the suit land, threatened to dispossess the plaintiff from the same and felled trees from the suit land. In the last week of January, 1999, defendant started digging the suit land and collecting construction material thereon for raising construction. There was a boundary dispute between the parties, which could be resolved by demarcation. Plaintiff requested the defendant to desist from the illegal acts, but to no avail. It is in these circumstances, plaintiff has filed suit for fixing boundaries by demarcation of the suit land by some competent revenue officer with consequential relief of permanent prohibitory injunction and in the alternative for possession by demolition of construction, if any raised, during the pendency of the suit. 3. The suit was resisted and contested by the defendant. Defendant has admitted that his land abuts the suit land but has denied that he ever threatened the plaintiff to dispossess him from the suit land and to raise construction thereon. The construction, if any, had already been raised by the father of defendant during his life time on his own land. According to him, plaintiff had already got demarcation of the suit land from Tahsildar (Settlement), Nadaun on 15.3.1997; therefore, no fresh demarcation of the same is required. 4. Issues were framed by the learned Civil Judge (Junior Division) on 23.1.2003. Suit of the plaintiff was partly decreed by the learned Civil Judge (Junior Division) on 12.11.2008. Defendant preferred an appeal before the learned District Judge, Hamirpur. He dismissed the same on 23.6.2011. 4. Issues were framed by the learned Civil Judge (Junior Division) on 23.1.2003. Suit of the plaintiff was partly decreed by the learned Civil Judge (Junior Division) on 12.11.2008. Defendant preferred an appeal before the learned District Judge, Hamirpur. He dismissed the same on 23.6.2011. Hence, the present Regular Second Appeal. 5. Mr. Ramakant Sharma, on the basis of the substantial questions of law framed, has argued that both the courts below have misinterpreted and misread the oral as well as documentary evidence led by the parties. According to him, demarcation Ex.PW-3/A has not been carried out in accordance with law. 6. Mr. Sanjay Sharma has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have gone through the judgments carefully. 8. Plaintiff had filed an application before framing of issues under Order 26, Rule 9 of the Code of Civil Procedure for appointment of Local Commissioner to demarcate the suit land. Consequently, the trial court appointed Naib Tahsildar as Local Commissioner with direction to visit the spot and demarcate the suit land and submit the report. The Naib Tahsildar, Nadaun visited the spot and carried out demarcation of the land of the parties on 22.10.2000 and submitted report Ex.PW-3/A. He had come to the conclusion that defendant has encroached upon the part of the suit land denoted by Khasra No. 721/3, 721/4, 722/1, 736/1/1 whereas the remaining part of the suit land denoted by Khasra No. 721/1 and 721/2 was found under encroachment of Kashmir Singh and Kumer Singh. Plaintiff has admitted the correctness of the demarcation report Ex.PW-3/A. Defendant preferred objection to the report. According to him, three pucca points have not been fixed and the Local Commissioner has not demarcated the suit land and adjoining land of the suit land as per last settlement Musabi for the year 1912-13. According to him, the report could not be prepared by the Local Commissioner on the basis of latest settlement record. 9. Plaintiff has appeared as PW-1. He has testified that in the month of January, 1999, defendant felled trees from the suit land and uprooted the boundary marks and collected construction material. He obtained stay order from the court, but the defendant after digging the suit land started construction of wall. Sh. Sanjeev Dogra, Advocate (PW-2) was appointed as Local Commissioner. He inspected the spot. He has testified that in the month of January, 1999, defendant felled trees from the suit land and uprooted the boundary marks and collected construction material. He obtained stay order from the court, but the defendant after digging the suit land started construction of wall. Sh. Sanjeev Dogra, Advocate (PW-2) was appointed as Local Commissioner. He inspected the spot. Defendant constructed cow-shed, verandah, manger and gate during the pendency of the suit after the stay order was issued against him. Naib Tahsildar was appointed as Local Commissioner. He visited the spot and submitted his report that the defendant has encroached upon the suit land. He has denied the suggestion that the defendant has constructed wall on the suit land in the year 1997. 10. PW-2 Sanjeev Dogra was appointed as Local Commissioner and he submitted his report Ex.PW-2/A, plan Ex.PW-2/B and statements Ex.PW-2/C to the court. 11. PW-3 Amar Singh, Naib Tahsildar has testified that as per direction of the Court, he carried out demarcation of the suit land on 22.10.2000. He prepared his report Ex.PW-3/A. He also recorded statement of plaintiff Ex.PW- 3/B, statement of witnesses Ex.PW-3/C whereas defendant had refused to make his statement. 12. DW-1 Avtar Singh, Pradhan, Gram Panchayat has proved copy of judgment Ex.DW-1/A passed by the Panchayat. 13. Defendant has appeared as DW-2. He has stated that his father had made construction on his own land during the year 1996-97. The demarcation of the suit land was carried out on 15.3.1997. Plaintiff had again moved an application before the Gram Panchayat, Bela, which was decided by the Panchayat on 18.6.1997. According to him, the Local Commissioner did not carry out demarcation in his presence. In his cross-examination, he has denied that he has raised construction on the suit land during the pendency of the suit and after stay order was issued against him. He has admitted that PW-2 Sanjeev Dogra had visited the spot, who sent his report Ex.PW-2/A. 14. DW-3 Pritam Singh has deposed that he was engaged by Inder Singh, father of the defendant, as mason in order to construct boundary wall during the year 1996-97. 15. DW-5 Mohinder Singh has testified that sale deed Ex.DW-5/A was scribed him on the instruction of Puran Singh in favour of Balraj Singh. 16. DW-3 Pritam Singh has deposed that he was engaged by Inder Singh, father of the defendant, as mason in order to construct boundary wall during the year 1996-97. 15. DW-5 Mohinder Singh has testified that sale deed Ex.DW-5/A was scribed him on the instruction of Puran Singh in favour of Balraj Singh. 16. What emerges from the evidence led by the parties is that the Local Commissioner has carried out the demarcation after taking into consideration three pucca points A, B and C in presence of the parties as per last settlement. The demarcation was to be carried out as per recent settlement and not as per settlement which took place in the year 1912-13, as argued by Mr. Ramakant Sharma. Plaintiff has produced Naib Tahsildar Mr. Amar Singh, who has carried out the demarcation and submitted report Ex.PW- 3/A. He has fixed three pucca points as well as on the Aks Musabi with the consent of the parties. Thereafter, correctness of undisputed points A, B and C was checked by joining of the field lines, which joined at each undisputed points on the grounds and the result thereof was tallied with the length of each field line with the length of corresponding field line on the copy of Musabi and no difference was found. The Local Commissioner has found that part of the suit land denoted by Khasra No.721/3, 721/4, 722/1 and 736/1/1 had been encroached upon by the defendant by raising construction. According to the Local Commissioner, the report was accepted by the parties and the persons, who were present on the spot. Defendant had refused to get his statement recorded. The Local Commissioner has recorded the statements of the parties Ex.PW-3/B and Ex.PW-3/C. The details of the encroachment had been denoted in the copy of Aks Musabi Jadid Sani. It is also evident from the report of PW-2 that defendant was raising construction when the Local Commissioner visited the spot on 22.10.2000. Plaintiff has conclusively proved his title on the suit land on the basis of Ex.P-1 and P-2. He has proved that he is owner of the suit land on the basis of revenue entries, which have not been rebutted by the defendant. He has also proved to the hilt that defendant has encroached upon the suit land. Plaintiff has conclusively proved his title on the suit land on the basis of Ex.P-1 and P-2. He has proved that he is owner of the suit land on the basis of revenue entries, which have not been rebutted by the defendant. He has also proved to the hilt that defendant has encroached upon the suit land. Report Ex.PW- 3/A has been prepared as per the instructions issued by this Court and Financial Commissioner, Himachal Pradesh. 17. Accordingly, both the learned courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no substantial question of law involved in the Regular Second Appeal and as such the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.