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2013 DIGILAW 591 (HP)

BIMLA DEVI v. Piyungla Devi

2013-06-24

SANJAY KAROL

body2013
JUDGMENT SANJAY KAROL, J. 1. THIS is the plaintiff's Regular Second Appeal filed under Section 100 of the Code of Civil Procedure. Plaintiff's Civil Suit No. 47 of 1993, titled as Smt. Bimla Devi vs. Shri Gittu Ram, stands decreed by the learned Sub Judge, Ist Class (I), Hamirpur, H.P., in terms of judgment and decree dated 9.1.1998. Aggrieved thereof, defendant filed an appeal which stands allowed in terms of judgment and decree dated 4.2.2002, passed by the learned District Judge, Hamirpur, H.P., in Civil Appeal No. 33 of 1998, titled as Shri Gittu Ram vs. Smt. Bimla Devi. 2. APPELLANT Smt. Bimla Devi (hereinafter referred to as the plaintiff) filed a suit for demarcation and possession of the suit land against respondent Sh. Geetu Ram (hereinafter referred to as the defendant). According to the plaintiff, defendant encroached upon six marlas out of land comprising khasra No. 29 situated in village Bhatal, Mouza Balduhak, Tehsil Nadaun, District Hamirpur, H.P. The total area of this khasra number is 3 kanals and five marlas and the same is owned by the plaintiff. Defendant filed a detailed written statement resisting the suit, inter alia, on the ground that she had constructed the house on her own land comprising khasra No. 28. 3. BASED on the pleadings of the parties, the trial Court framed the following issues : 1. Whether the plaintiff is entitled for demarcation of the suit land as alleged? OPP 1-A. Whether the plaintiff is entitled for possession of suit land as alleged? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has no cause of action and locus-standi to file the present suit? OPD 4. Whether the plaintiff is estopped by her act and conduct from filing the suit? OPD 5. Whether the suit is barred by principle of resjudicata? OPD 6. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD 7. Whether the defendant is entitled to special costs under Section 35-A CPC? OPD 8. Relief. 4. DURING trial, Court appointed a Local Commissioner who submitted his report (Ext. PA) based on revenue maps (Ext. PD and PE). Holding the report to be valid, the trial Court came to the conclusion that in fact defendant had encroached upon the suit land and as such decreed the suit in favour of the plaintiff. OPD 8. Relief. 4. DURING trial, Court appointed a Local Commissioner who submitted his report (Ext. PA) based on revenue maps (Ext. PD and PE). Holding the report to be valid, the trial Court came to the conclusion that in fact defendant had encroached upon the suit land and as such decreed the suit in favour of the plaintiff. In an appeal filed by the defendant, the lower appellate Court has reversed such findings of fact. 5. THE appeal stands admitted on the following substantial questions of law :- "1. Whether the learned lower appellate Court is right in dismissing the suit of the plaintiff/appellant on the ground that the local commissioner failed to carry out the demarcation in accordance with the instructions issued by the Financial Commissioner as well as the provisions of the High Court Rules and Orders instead of appointing another Local Commissioner to determine the controversy between the parties and to do complete justice? 2. Whether the learned lower appellate Court is right in not relying upon Ext. PA the report of the Local Commissioner which is supported by the statements of the parties Ext. PB and PC as well as by Aks Shajra Latha and Aks Tatima Shajra Ext. PD and PF?" 6. HAVING heard learned counsel for the parties, I am of the considered view that no question of law, much less substantial question of law, arises for consideration in the present appeal. The fact that plaintiff is owner of khasra No. 29 is not in dispute. The fact that defendant is owner of khasra No. 28 which adjoins khasra No. 29 is also not in dispute. Plaintiff was to legally establish its case on its own merit. 7. SIGNIFICANTLY the Local Commissioner Sh. Sita Ram (PW-1), in Court has deposed that if the record prepared during the settlement proceedings is taken into account, the defendant would be an encroacher over the suit land. But however, if the record prepared at the time of consolidation proceedings is considered, then the position would be converse and in that event, plaintiff herself would be in possession of two marlas of land belonging to the defendant. 8. THE contradiction is significant. The lower appellate Court, in my considered view, rightly rejected the report (Ext. But however, if the record prepared at the time of consolidation proceedings is considered, then the position would be converse and in that event, plaintiff herself would be in possession of two marlas of land belonging to the defendant. 8. THE contradiction is significant. The lower appellate Court, in my considered view, rightly rejected the report (Ext. PA) for the reason that procedure prescribed under Chapter 10 of the Himachal Pradesh Land record Manual as also instructions issued by the Financial Commissioner (Revenue), Himachal Pradesh, were not complied with. The oral explanation of the Local Commissioner with regard to compliance thereof, have been rightly rejected, as the report has to be a self speaking document. The decision rendered by this Court in State of H.P. vs. Laxmi Nand & others, 1992 Cri. L. J. 3226, is squarely applicable to the instant case. Mr. Ramakant Sharma, learned counsel for the appellant, has invited my attention to the decision rendered by the Apex Court in Gian Chand Khatana & others vs. Inderjit Chohdha, AIR 2003 Himachal Pradesh 49, to contend that the lower appellate Court ought to have ordered for initiation of fresh proceedings by the Local Commissioner. I am afraid the decision is not applicable to the given facts. There the Court was dealing with a case where the report of the Local Commissioner was absolutely necessary for deciding the lis in question. In the instant case, onus to establish encroachment was upon the plaintiff. The Local Commissioner himself found revenue record to be contradictory. In this background the appointment of the Local Commissioner would not have served any purpose. 9. THERE is yet another reason for rejecting the contention so made by the learned counsel for the appellant-plaintiff. Defendant has placed on record documents (Ext. D-1 and D-2) to establish that there was an earlier litigation, inter se the parties in which parties had arrived at a settlement, putting an end to their litigation with regard to such boundary dispute. 10. NOTICEABLY, both the Courts below have observed that on the suit land, defendant constructed a house way back in the year 1973. There is evidence on record, through the testimonies of Sh. Oma Chand (DW-2) and Sh. Milkhi Ram (DW-3), to the effect that this construction was raised after the existing cowshed, belonging to the defendant was demolished. 10. NOTICEABLY, both the Courts below have observed that on the suit land, defendant constructed a house way back in the year 1973. There is evidence on record, through the testimonies of Sh. Oma Chand (DW-2) and Sh. Milkhi Ram (DW-3), to the effect that this construction was raised after the existing cowshed, belonging to the defendant was demolished. Hence, in my considered view, there is no merit in the present appeal and the same is accordingly dismissed. Pending application(s), if any, also stand disposed of accordingly. Appeal dismissed.