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2012 DIGILAW 899 (HP)

Balbir Singh v. Pohu Khan

2012-11-30

DHARAM CHAND CHAUDHARY

body2012
Judgment Dharam Chand Chaudhary, J. This appeal is directed against the judgment and decree dated 15.12.2001 passed by learned Additional District Judge, Solan, Circuit Court at Nalagarh, District Solan, Himachal Pradesh in Civil Appeal No.80-NL/13 of 2001, allowing thereby the appeal preferred by the appellant/plaintiff (hereinafter referred to as “the plaintiff” for convenient sake) partly by decreeing the suit for the relief of permanent prohibitory injunction, however, declining the decree for possession of the suit land by way of mandatory injunction to pull down the construction the defendants raised thereon in his absence and thereby modified the judgment and decree passed by learned Sub Judge, Nalagarh, District Solan. 2. The impugned judgment has been assailed on the grounds, inter-alia, that learned lower appellate Court has failed to appreciate the evidence suggesting that the suit land has been encroached upon by the defendants by raising construction thereon and also the admission of defendant No.2 that the suit land bearing Khasra No.645/1, measuring 1.4 square metres was encroached upon by her by raising the construction of boundary wall of her house. Before institution of the suit, plaintiff got the suit land demarcated and it is thereafter she filed the suit against the defendants alongwith demarcation report and the tatima. The demarcation report is duly proved on record, however, erroneously brushed aside by the Courts below on the ground that the demarcation was not conducted as per the guidelines prescribed thereto by the Financial Commissioner, Himachal Pradesh. The defendants did not file any application for demarcation of their respective lands and also the suit land. PW-2 by a slip of tongue has stated while in the witness box that the demarcation on the spot had taken place with the help of ‘latha’. On the other hand, the defendants who pleaded specifically that they raised the construction after obtaining permission from the competent authority, however, failed to prove so. The defendants never raised any objection to the demarcation report nor did they file any application for appointment of Local Commissioner for demarcation of the suit land. The lower appellate Court has erroneously dismissed the application filed by plaintiff with the prayer to appoint a Local Commissioner for demarcation of the suit land. The defendants never raised any objection to the demarcation report nor did they file any application for appointment of Local Commissioner for demarcation of the suit land. The lower appellate Court has erroneously dismissed the application filed by plaintiff with the prayer to appoint a Local Commissioner for demarcation of the suit land. The law cited on behalf of the plaintiff on the issue of appointment of Local Commissioner, referred to in para-10 of the impugned judgment has been taken as if cited to substantiate the case in the main appeal. The evidence available on record has also been misread and misconstrued. 3. The appeal has been admitted on the following substantial questions of law:- 1. Whether the Additional District Judge has erroneously partly dismissed the suit of the appellant-plaintiff and denied the decree for possession by misreading and misinterpreting the evidence on record, more specifically, the demarcation report, Ext. P.1? 2. Whether the Additional District Judge has erred in dismissing the application for appointment of Local Commissioner which was filed by the appellant-plaintiff in order to place on record the demarcation report by way of additional evidence? 4. I have heard Mr. G.D. Verma, learned Senior Advocate assisted by Mr. B.C. Verma, Advocate on behalf of the appellant and Mr. Ramakant Sharma, Advocate on behalf of the respondents. 5. Learned Senior Advocate has strenuously contended that the decree for possession of the suit land by demolishing the structure raised thereon by the defendants has only been declined on the sole ground that the demarcation report Ex.P-1 cannot be treated as legal and acceptable evidence in view of the fact that the demarcation has not been conducted as per the guidelines framed by the Financial Commissioner, Himachal Pradesh and the law laid down by this Court in State of H.P. versus Laxmi Nand and others, 1992(2) Sim. L.C. 307. The findings so recorded are neither legally nor factually sustainable. According to learned Senior Advocate, it was obligatory on the part of trial Court to have resolved the boundary dispute by way of appointing Local Commissioner for demarcation of the same as provided under the High Court Rules and Orders. L.C. 307. The findings so recorded are neither legally nor factually sustainable. According to learned Senior Advocate, it was obligatory on the part of trial Court to have resolved the boundary dispute by way of appointing Local Commissioner for demarcation of the same as provided under the High Court Rules and Orders. Even the application filed before the lower Appellate Court under Order 41 Rule 27 of the Code of Civil Procedure for appointment of Local Commissioner and to produce the demarcation report by way of additional evidence is also said to be erroneously dismissed. On merits, it is pointed out that the defendants never objected to the demarcation report Ex.P-1 and rather one of the defendants, i.e. defendant No.2 has even admitted the encroachment of the suit land to the extent of 1.4 square metres while raising construction of her house. The evidence as has come by way of the testimonies of plaintiff’s witnesses is also said to be not properly appreciated. 6. On the other hand, Mr. Ramakant Sharma has forcefully contended that the disputed land is a built up area and not vacant nor is there any question of any boundary dispute. It is the demarcation of such built-up area in possession of defendants, is involved in the present suit and when PW-2, Kanungo himself admitted that he did not observe the procedure prescribed for demarcation of such land, both the Courts below have rightly ignored the demarcation report. The application for permitting the plaintiff to produce the additional evidence is also stated to be rightly dismissed as to allow the application of this nature amounts to create evidence in favour of the party seeking permission to lead additional evidence. 7. On analyzing the rival contentions and also the entire record, the factual position which emerges there-from is that the suit land is under the construction raised by each defendant. Reference in this behalf can be made to tatima Ex.P-2 which reveals that the suit land measuring 22.70 square metres denoted by Khasra No.645/2 is part of the boundary wall and house of defendant No.1, land measuring 1.40 metres denoted by Khasra No.645/1 under the boundary wall of the house of defendant No.2 and land measuring 11.25 square metres denoted by Khasra No.645/3 under the house and boundary wall of defendant No.3. 8. 8. Whether the plaintiff is owner of the suit land, could have been ascertained from the demarcation thereof got conducted as per the procedure prescribed thereto on the spot. No doubt, the plaintiff before filing the suit had got the land demarcated on the spot from PW-2, Kanungo, Rajgarh. He has proved the demarcation report Ex.P-1 and also the tatima Ex.P-2. He has conducted the demarcation with the help of ‘latha’. The present, no doubt, is not a case of boundary dispute and rather the demarcation is of the land allegedly encroached upon by the defendants by way of raising construction thereon. The procedure required to be followed at the time of conducting demarcation by a revenue authority has been discussed in the judgment referred in Laxmi Nand’s case, cited supra. Though for want of evidence, the plaintiff is justified in claiming that the defendants did not challenge the demarcation report any further and even while in the witness box as DW-1, defendant No.1 has stated that no demarcation was got conducted by the plaintiff in his presence, however, in his cross-examination, stated that neither he got his land demarcated before raising the construction of his house nor before filing the suit or after its institution. Also that he is ready and willing to get the land demarcated. Shri Shankar Lal, the predecessor-in-interest of the 3rd respondent while in the witness box as DW-2, has stated that though no demarcation has taken place in his presence after he having sold the house he constructed, however, only measurement had taken place. No case of unauthorized possession either by the Kanungo or the Patwari was ever made against him and he had raised construction of the house on the land in question by treating the same to be his own land. In his cross-examination he also admitted that at the time of raising construction of the house he did not get the land demarcated. 9. So far as defendant No.2 is concerned, she in her written statement has admitted encroachment of suit land to the extent of 1.4 square metres by raising construction of boundary wall of her house and thereafter did not turn up to contest the suit. The decree to this effect could have been passed by the Courts below, however, this aspect has not at all been discussed in the impugned judgment. 10. The decree to this effect could have been passed by the Courts below, however, this aspect has not at all been discussed in the impugned judgment. 10. The evidence discussed supra as has come on record by way of own testimonies of defendants No.1 and 3 amply demonstrates that they did not get the land demarcated before raising construction of their respective houses. Defendant No.3 though has proved the order Ex.D-3 whereby the drawing he submitted in Municipal Committee, Nalagarh was approved, however, defendant No.1 has not produced even any evidence of this nature also. Irrespective of such evidence having come on record by way of testimonies of defendants No.1 and 3, discussed supra, the demarcation of land not conducted by the competent authority on the spot, it may not be appropriate to place reliance on demarcation report Ex.P-1 and tatima Ex.P-2. This Court arrives at such conclusion, however, not on the ground that the demarcation was conducted by PW-2 on the basis of ‘latha’ and rather on the ground of being not conducted by a competent officer. The conclusion, however, will be that for want of proper demarcation and the report on record, it is difficult to believe that the suit land has been encroached upon by the defendants to the extent of the same as indicated in tatima Ex.P-2. 11. The facts, however, remain that the trial Court could have suo moto ordered the local inspection even if there was no application to this effect made by either party. The view of the matter so taken by this Court finds support from the judgment of this Court in Braham Datt v. Prem Chand and others, 2000(1) SLJ 431, reproduced below para-14 of the judgment again that of this Court in Bali Ram Versus Mela Ram and another, 2002(3) Shim. L.C. 131, which reads as under:- “14. In Branham Datt v. Prem Chand and others, 2000(1) SLJ 431, this Court held as under : “14. Be it stated that whatever was within the power of the plaintiff to show that a piece of land owned by him has been encroached upon by the defendants, has been done by him. If the revenue agency has prepared a report which may not be according to rules, the case of the plaintiff could not have been thrown out simply for the lapses committed by the revenue agency/Tehsildar in carrying out the demarcation. If the revenue agency has prepared a report which may not be according to rules, the case of the plaintiff could not have been thrown out simply for the lapses committed by the revenue agency/Tehsildar in carrying out the demarcation. No amount of oral evidence which could be led by the plaintiff, would have established the identity of the encroached land. To identify it the only was to get it demarcated. The plaintiff adopted that course and nothing more could have been done by him. In case the Appellate Court entertained any doubt about the correctness of the demarcation and the report, the prayer of the plaintiff for appointment of Local Commissioner for demarcation of the suit land to find out the extent of the encroachment, if any, ought to have been acceded. It is the duty of the courts to ensure that substantial justice is delivered to the parties and that for the mistake of any Government agency in demarcating the land, a party should not be deprived of the justice on merits by taking recourse to technicalities. 15. Once the learned District Judge had entertained doubt about the correctness of the demarcation given by the Tehsildar, he ought to have appointed a Local Commissioner to demarcate the disputed area to find out whether there was any encroachment and if so, to what extent, instead of proceeding to dismiss the suit. The impugned judgment and decree, therefore, cannot be sustained.” 15. In the case in hand, as already stated, the preparation of the Tatima correctly was not within the powers of the parties and they did whatever was possible on their part. therefore, after coming to the conclusion that a part of the suit land is in possession of the plaintiff and the defendant is interfering with his possession, it is necessary for fair and just decision of the case to ascertain the actual position of the spot which can be best ascertained by issue of a commission at the cost of the parties.” 12. The plaintiff did get the land demarcated before filing the suit. In case the demarcation was not conducted as per procedure and tatima prepared correctly, it was not within his power. The plaintiff did get the land demarcated before filing the suit. In case the demarcation was not conducted as per procedure and tatima prepared correctly, it was not within his power. In such a situation in order to arrive at a just conclusion, the best course available to the Courts below was to have ascertained the actual position by issuing a Commission at the cost of the parties, particularly, when defendant No.1 has stated in his cross-examination that he was ready and prepared for demarcation of the land. The approach on the part of both the Courts below that the demarcation report Ex.P-1 being not as per law and procedure, hence, not legally admissible, stands belied from the ratio of the judgment supra. 13. No doubt, as per the law laid down by the Apex Court in Bandhu Mahto (dead) by LRs. And another Versus Bhukhli Mahatain and others, (2007) 10 SCC 564 and Tallam Gangadharan (dead) by LRs. Versus U. Ismaiil Saheb, (2009) 17 SCC 389 , the concurrent findings recorded after proper appreciation of the evidence should not be interfered with in regular second appeal. However, in view of the judgment, again that of the Apex Court in Haryana Waqf Board Versus Shanti Sarup and others, (2008) 8 SCC 671 , in a case having identical facts, the second appeal should have not been dismissed and rather Local Commissioner appointed for demarcation of the land. Their Lordships have held as under:- “3. The dispute that was raised by the parties before the court was whether the respondent had encroached upon any land belonging to the appellant-Board. Therefore, it cannot be in dispute that the dispute was in respect of the encroachment of the suit land. 4. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of the CPC. 5. 5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in respect of the suit land by them as per paragraph 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected. 6. It is also not in dispute that even before the appellate court, the appellant-Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land. 7. For the reasons aforesaid, we are of the view that the High Court ought to have considered this aspect of the matter and then to decide the second appeal on merits. Accordingly, we set aside the judgment and decree passed in the second appeal and the second appeal is restored to its original file. 8. The High Court is requested to decide the second appeal in the light of the observations made herein above within six months from the date of supply of a copy of this order to it. The appeal is thus allowed. There will be no order as to costs.” 14. If coming to the case in hand, an application under Order 41 Rule 27 CPC was filed by the plaintiff in the lower Appellate Court to appoint Local Commissioner for demarcation of the suit land and allow him to place on record the demarcation report by way of additional evidence. The same, however, has been dismissed on the ground that to allow such an application may amount to create evidence in favour of the either party and also that the plaintiff himself should have obtained the demarcation of land with the help of musavi and to have filed the demarcation report thereafter. The same, however, has been dismissed on the ground that to allow such an application may amount to create evidence in favour of the either party and also that the plaintiff himself should have obtained the demarcation of land with the help of musavi and to have filed the demarcation report thereafter. This Court, however, is of the considered opinion that in order to decide the controversy in the suit more effectively and judiciously, to allow the application would have not only facilitate the lower appellate Court to decide the controversy more effectively and rather in the given facts and circumstances, the local inspection would have served the ends of justice. 15. The lower appellate Court has answered issues No.3 to 5 in favour of the plaintiff, however, declined the relief of possession and mandatory injunction on the sole ground that the demarcation report is not legally acceptable. 16. For the reasons stated hereinabove, the only course left open to this Court is to remand the suit to lower appellate Court for deciding issues No.1, 2 and 6 afresh with a direction to appoint Local Commissioner to carry out the local inspection and dispose of the appeal thereafter in accordance with law. 17. In view of the above discussion, the impugned judgment and decree is set aside and the case is remanded to the lower appellate Court with a direction to appoint Local Commissioner to carry out local inspection and dispose of the appeal thereafter accordingly. 18. The appeal stands disposed of accordingly. However, no order so as to costs. Let decree sheet be prepared accordingly. Records be sent down.