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2013 DIGILAW 444 (HP)

Kapoor Chand v. Ram Lok

2013-05-17

RAJIV SHARMA

body2013
JUDGMENT Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 3.1.2012 rendered by the learned Additional District Judge, Solan in Civil Appeal No.5-S/13 of 2010. 2. “Key facts” necessary for the adjudication of this Regular Second Appeal are that respondents-plaintiffs (hereinafter referred to as the “plaintiffs” for convenience sake) filed a suit for mandatory injunction, possession and permanent prohibitory injunction with respect to land comprised in Khata/Khatauni No. 38min/39 min, Khasra No. 318 measuring 9 biswas, Gair Mumkin Abadi, situate in Mauza Kambalwa, Pargana Doon, Tehsil Kasauli, District Solan, H.P. (hereinafter referred to as the ‘suit land’). According to the plaintiffs, they are owners in possession of the suit land and the appellant-defendant (hereinafter referred to as the “defendant” for convenience sake) is stranger. Plaintiff No.1, namely, Ram Lok applied to Assistant Collector 2nd Grade, Kasauli for demarcation in case No. 36/8 of 2002 on 22.4.2002. The Assistant Collector 2nd Grade, Kasauli deputed Field Kanungo to demarcate the suit land. Defendant alongwith others was summoned by the Field Kanungo. He demarcated the suit land and also that of the adjoining owners with the help of Patwari Halqua. The Field Kanungo found that the defendant has encroached upon 3 biswas of land by raising construction. Naksha Tafawat of the encroached land was prepared by the revenue official of Khasra No. 318/1. The demarcation report was finalized by the Assistant Collector 2nd Grade on 3.5.2003. Plaintiffs requested the defendant to remove the encroachment from the land by demolition of house and to hand over its vacant possession, but to no avail. In these circumstances, plaintiff has filed the suit for injunction, possession and permanent prohibitory injunction against the defendant. 3. Suit was contested by the defendant. According to the defendant, the old house which was kucha has been reconstructed by him in the month of January, 1981. No objection was raised when the house was reconstructed. His possession over the land beneath his house to the extent of three biswas was claimed to be open, hostile and to the knowledge of the plaintiffs and their predecessor-in-interest. According to defendant, he has become owner by way of adverse possession. It was also stated that no demarcation was conducted on the spot in his presence nor any notice was served upon him. According to defendant, he has become owner by way of adverse possession. It was also stated that no demarcation was conducted on the spot in his presence nor any notice was served upon him. The defendant has also filed counter-claim stating therein that he has constructed the house over the suit land around 80 years ago. It was previously Kucha and it was reconstructed by him in the month of January, 1981. The possession of the defendant being open and hostile since January, 1981 has ripened into the ownership by afflux of time. 4. Plaintiff contested the counter claim to the effect that the defendant has no cause of action to file and maintain the counter claim. Defendant has not come to the court with clean hands. On merit, while denying the counter claim, it is stated that the defendant, who has no right, title or interest over the suit land, has encroached upon the land to the extent of three biswas. 5. Learned Civil Judge (Senior Division) framed issues on 20.9.2005. He decreed the suit on 15.1.2010. Defendant preferred an appeal against the judgment and decree dated 15.1.2010 before the Additional District Judge, Solan. He dismissed the same. It is in these circumstances, the present Regular Second Appeal has been filed. 6. Mr. B.B. Vaid on the basis of substantial questions of law has strenuously argued that the demarcation has not been carried out in accordance with law. He has also contended that the suit was barred under order 2 rule 2 of the Code of Civil Procedure. He then contended that the findings have not been recorded on issue No. 11. He further contended that issues No. 1, 2, 4, 5 and 10 have not been correctly decided by the trial court. He also contended the evidence led by the parties have not been discussed. 7. Mr. O.C. Sharma has supported the judgments and decrees passed by both the courts below. 8. I have heard the learned counsel for the parties and have perused the records and pleadings carefully. 9. PW-1 Prem Dutt has produced the demarcation file. He has proved copy of application Ex.PW-1 and copies of statement and Aksh Sajra Ex.PW- 1/B and Ex.PW-1/C. 10. PW-2 Ram Parkash, the-then Field Kanungo of the area has been examined by the plaintiff. I have heard the learned counsel for the parties and have perused the records and pleadings carefully. 9. PW-1 Prem Dutt has produced the demarcation file. He has proved copy of application Ex.PW-1 and copies of statement and Aksh Sajra Ex.PW- 1/B and Ex.PW-1/C. 10. PW-2 Ram Parkash, the-then Field Kanungo of the area has been examined by the plaintiff. He has deposed that on an application moved by the plaintiffs Ex.PW-1/A, he demarcated the suit land on 9.11.2002. He has proved demarcation report Ex.PW-1/B and copy of Aksh Sajra Ex.PW-1/C. Though a plea has been taken in the written statement that the defendant has not been associated at the time of demarcation but PW-2 was not cross-examined on this aspect of the matter by the defendant. However, as per Ex.PW-1/B, defendant was present on the spot when the demarcation was carried out by PW-2. PW-2 has deposed that he visited the spot and conducted the demarcation when three biswas of land out of the suit land denoted by Khasra No. 318/1 was found to be in illegal possession of the defendant by way of raising construction and who as per the copy of jamabandi for the year 1998-99 Ex.PW-3/B has got no right, title or interest in or over the entire suit land comprised in Khasra No. 318 measuring 0-9 biswas classified as “Gair Mumkin Abadi”. As per revenue record, Khasra No. 318 is recorded to be owned and possessed by the predecessor- in-interest of the plaintiffs, namely, Chetu. According to the entries made in the revenue record after the death of Chetu, mutation was attested in their favour vide mutation No. 405. 11. PW-3 Desh Raj is one of the plaintiffs. According to him, his father was owner of Khasra No. 318 measuring 9 biswas. Defendant is stranger to the suit land. He has encroached upon three biswas of suit land. Tatima was prepared by the revenue officials depicting the encroached land as Khasra No. 318/1. They asked the defendant to remove the construction, but he refused to do so. In his cross-examination PW-3 has denied that previously there was Kucha house on the suit land, which was constructed by the father of the defendant. The suggestion that in the year 1981 by demolishing the house, a new house has been constructed has been denied. They asked the defendant to remove the construction, but he refused to do so. In his cross-examination PW-3 has denied that previously there was Kucha house on the suit land, which was constructed by the father of the defendant. The suggestion that in the year 1981 by demolishing the house, a new house has been constructed has been denied. There is no cross-examination of PW-3 about challenging the assertion that he alongwith his brother is owner of the suit land. 12. PW-4 Karam Chand has supported the version of PW-3. According to him, plaintiffs are owners in possession of the suit land comprised in Khasra No. 318. No suggestion was put to him that the defendant has become owner in possession of the suit land. 13. Defendant Kapoor Chand has appeared as DW- 1. According to him, previously the house was Kucha and the same has been reconstructed by him in January, 1981. The electricity connection was installed in the year 1983 in the name of his son, namely, Hari Kishan DW-3. However, DW-3 Hari Kishan has deposed that the electricity meter has been installed in the old house, which is adjacent to the suit land. 14. DW-2 Bhagat Ram and DW-4 Ravinder Singh have been examined by the defendant. According to them, the house was reconstructed by the defendant in January, 1981. The electricity meter in the house was in the name of Hari Kishan DW-3. However, DW-3 has deposed that the electricity meter has been installed in the old house, which is adjacent to the suit land. DW-2 has admitted the plaintiff to be owner of Khasra Nos. 317 and 318. DW-4 Ravinder Singh has also not deposed about the requisite animus. PW-3 has categorically stated that the defendant was requested to leave the possession. PW-4 has supported the version of PW-3. In view of this, the finding recorded by the learned trial court that the plaintiffs were entitled to relief of permanent prohibitory injunction is strictly in accordance with law. 15. Mr. B.B. Vaid has vehemently argued that the demarcation report Ex.PW-2/A is not in accordance with law. Plaintiff No.1 had moved an application before the Assistant Collector 2nd Grade for demarcation in case No. 36/8 of 2002 on 22.4.2002. PW-2 was deputed by the Assistant Collector 2 nd Grade to demarcate the land. He visited the spot and demarcated the land. B.B. Vaid has vehemently argued that the demarcation report Ex.PW-2/A is not in accordance with law. Plaintiff No.1 had moved an application before the Assistant Collector 2nd Grade for demarcation in case No. 36/8 of 2002 on 22.4.2002. PW-2 was deputed by the Assistant Collector 2 nd Grade to demarcate the land. He visited the spot and demarcated the land. He has proved Ex.PW-1/B and Ex.PW-1/C. Learned trial court has recorded that the defendant was present on the spot when the demarcation was conducted by PW-2. According to the demarcation report, defendant was found in possession of three biswas of land out of Khasra No. 318/1. According to the revenue record, plaintiffs have become owners of the suit land after the death of Chetu and the mutation to this effect was also attested in their favour. Defendant has not put any specific suggestion to PW-2 that the demarcation report was not in accordance with law. 16. Mr. B.B. Vaid has also argued that in the present case, fresh demarcation report was required to be obtained from the field agency since the dispute pertain to boundary. It was always open to the defendant to move appropriate application seeking appointment of Local Commissioner to demarcate the land. The earlier suit filed by the plaintiff, i.e. Civil Suit No. 265/1 was simplicitor for permanent injunction restraining the defendants from obstructing path in question over which they have acquired the right of easement of necessity. The present suit has been filed for mandatory injunction as well as permanent prohibitory injunction on the basis of demarcation report Ex.PW-2/A whereby defendant has been found to have encroached upon three biswas of land out of the suit land comprising Khasra No. 318. In view of this, the present suit was not barred under order 2 rule 2 of the Code of Civil Procedure. 17. As per the evidence led by the parties, the possession of the defendant over three biswas of land is not old. The plaintiff had earlier filed civil suit No. 265/1/2002. The suit was decreed on 30.4.2007 as per Ex. DX. As per Ex. DX, plaintiffs were held owners in possession of Khasra No. 318 measuring 9 biswas and Khasra No. 317 measuring 8 biswas situate in Mauza Kumbawala. Defendant has not taken the plea of adverse possession in the earlier suit filed by the plaintiffs against defendant and one Sh. Jawala. DX. As per Ex. DX, plaintiffs were held owners in possession of Khasra No. 318 measuring 9 biswas and Khasra No. 317 measuring 8 biswas situate in Mauza Kumbawala. Defendant has not taken the plea of adverse possession in the earlier suit filed by the plaintiffs against defendant and one Sh. Jawala. Why this plea has not been taken in the earlier suit has not been explained by the defendant. PW-3 Hari Kishan, who is son of defendant, has admitted that the plaintiff is owner of Khasra No. 318. In view of this, the plea of adverse possession raised by the defendant further got diluted. DW-3 has also deposed that the electricity meter was installed in the old house. 18. Learned trial court has taken up issues No. 1,2,4,5 and 10 together. No separate findings were required to be given on issue No. 11 since this issue was dealt with extensively under issue No. 10 by the learned trial court. In the counter-claim, it was stated that the defendant was in possession since 1981 and his possession has ripened into ownership. This could not be supported by the defendant before the courts below. The learned trial court has decided all the issues correctly after discussing oral as well as documentary evidence. The issues raised in this civil suit were not substantially raised in the earlier civil suit No. 265/1 of 2002. The defendant has never raised the plea of adverse possession in the earlier suit and there was no occasion for the trial court to decide the same. In view of this, the courts below have not committed any error while decreeing the suit of the plaintiff and dismissing the counter-claim of the defendants. The courts below have correctly appreciated the entire evidence. 19. Accordingly, in view of the observations and analysis made hereinabove, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.