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2013 DIGILAW 778 (HP)

Mohan Singh v. Bhikham Ram

2013-08-27

KULDIP SINGH

body2013
JUDGMENT : Kuldip Singh, J. This appeal is directed against the judgment, decree dated 8.8.2006 passed by learned Presiding Officer, Fast Track Court, Mandi in Civil Appeal Nos.43/2003, 55/2005, affirming judgment decree dated 27.3.2003 passed by learned Sub Judge 1st Class, Court No.1, Mandi in Civil Suit No. 92-1/2001. The plaintiff is the appellant. 2. The pleaded case of the appellant is that he is owner in possession of land comprised in khewat khatauni No. 17 min/35, khasra No.920/493, measuring 0-13-13 bighas, situated in Mohal Dhaniyara, Illaqua Tungal, Tehsil Sadar (for short land in dispute) as per jamabandi for the year 1999-2000. The respondents have no right, title or interest over the land in dispute. They started digging the said land for the purposes of construction. The appellant requested the respondents not to dig or raise construction over the land in dispute but without any positive response. The appellant applied to Naib Tehsildar, Kotli for spot inspection and for issuing tatima. The Naib Tehsildar visited the spot on 26.7.2001 and found that respondents had dug land measuring 0-0-10 bighas shown in the spot map as khasra No.920/493/1 (for short suit land). The respondents started construction over khasra No.920/493/1 without the consent and permission of the appellant. In these circumstances, the appellant had filed the suit for permanent prohibitory injunction and mandatory injunction directing the respondents to remove construction raised by them over khasra No.920/493/1, measuring 0- 0-10 bighas and for restoration of the land to its original position. 3. The suit was contested by respondents No.1 to 6 by filing written statement, in which preliminary objections; lack of cause of action and suit based upon falsehood have been taken. On merits, it has been pleaded that the Naib Tehsildar, Kotli did not visit the spot on 26.7.2001 and no measurements were taken in presence of respondents, who were not given any notice by Naib Tehsildar. The spot map prepared by Naib Tehsildar was wrong and illegal. It has further been pleaded that on Dharampur road about 40 years ago respondent No.1 with the help of his grand father alongwith his wife Smt. Purvu Devi had constructed a house. After the dissolution of marriage between Smt. Purvu Devi and respondent No.1. Smt. Purvu Devi is residing and occupying the house in question. It has further been pleaded that on Dharampur road about 40 years ago respondent No.1 with the help of his grand father alongwith his wife Smt. Purvu Devi had constructed a house. After the dissolution of marriage between Smt. Purvu Devi and respondent No.1. Smt. Purvu Devi is residing and occupying the house in question. The land where the house was constructed is owned by State of Himachal Pradesh but after the construction of the house Smt. Purvu Devi has become owner of that land. It has also been pleaded that Smt. Purvu Devi alongwith respondent No.1 are in possession of the suit land for the last over 40 years continuously, peacefully and without any interruption and they have acquired title of the suit land by way of adverse possession. The respondents denied the claim of the appellant. 4. The appellant filed replication and reiterated his stand. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction against the defendants as prayed for? OPP 2. Whether the plaintiff is also entitled for the relief of mandatory injunction directing defendants to remove the alleged encroachment from khasra No.920/493/1, measuring 0-0-10 bighas and to put suit land in its original position? OPP 3. Whether the plaintiff has no cause of action? OPD 4. Whether the suit has been filed on false facts and liable to be dismissed with special costs? OPD 5. Relief. Issues No.1 to 4 were answered in negative and the suit was dismissed by the trial Court on 27.3.2003. In appeal, the learned appellate Court on 8.8.2006 affirmed the judgment, decree of the trial Court. Both the Courts below did not believe the tatimas prepared by Naib Tahsildar. Hence, second appeal which has been admitted on following substantial question of law: - "Whether there has been misreading of oral as well as documentary evidence by both the courts below?" 5. I have heard Mr. G.R. Palsra, learned counsel for the appellant, none appeared on behalf of the respondents. On the previous date also none appeared on behalf of the respondents. I have also gone through the record. The learned counsel for the appellant has submitted that the Courts below have misconstrued, misinterpreted the evidence in dismissing the suit of the appellant. G.R. Palsra, learned counsel for the appellant, none appeared on behalf of the respondents. On the previous date also none appeared on behalf of the respondents. I have also gone through the record. The learned counsel for the appellant has submitted that the Courts below have misconstrued, misinterpreted the evidence in dismissing the suit of the appellant. The respondent No.1 has no right, title or interest over the suit land but he asserted his possession on the suit land. The respondents No.2 to 6 assisted the respondent No.1 in digging and interfering over the suit land. 6. Ex.P-1 is the copy of jamabandi for the year 1999-2000 in which appellant is recorded owner in possession of land comprised in khasra No.920/493, measuring 0-13-13 bighas. PW-3 Mohinder Kumar, Naib Tehsildar has stated that he visited the spot, demarcated the land and got prepared tatima Ex.PW-2/B from Patwari. At the time of preparing tatima the respondents were not called nor notice was issued to them. PW-1 Mohan Singh has stated that he is owner in possession of the suit land. On 25.7.2001 the respondents interfered over the suit land and started digging. He applied to Naib Tehsildar, Kotli for spot inspection, who visited the spot alongwith Patwari on 26th and found that respondents had done digging over land measuring 0-0-10 bighas. 7. DW-1 Bhikham Ram has stated that he and appellant are living separately since the year 1980. In between 1956-66, he constructed house adjacent to the suit land on the asking of the appellant. He gave this house to his divorced wife Smt. Purv Devi. On 26.7.2001 Naib Tehsildar had not come in his presence. He has denied the suggestion that he has no land adjacent to the suit land, volunteered that his land is at a distance of 100 meters, then stated that land belongs to his uncle which was earlier joint. The appellant in the plaint has described suit land as khasra No.920/493/1, measuring 0-0-10 bighas as per spot map. The respondents in para-7 of the written statement have pleaded that Smt. Purvu Devi and respondent No.1 are in possession of the suit land for the last over 40 years. The identity of khasra No.920/493/1 shown in spot map has been acknowledged by respondents when they pleaded that they are in possession of suit land. 8. The respondents have not established their title over the suit land. The identity of khasra No.920/493/1 shown in spot map has been acknowledged by respondents when they pleaded that they are in possession of suit land. 8. The respondents have not established their title over the suit land. In Ex.P-1 the appellant is recorded owner in possession of the suit land. The tatimas Ex.PW-2/A and Ex.PW-2/B were not believed by the Courts below on the ground that the demarcation report was not submitted. The appellate Court has also found infirmity in the demarcation. Chapter 10.4 of the Himachal Pradesh Land Records Manual, 1992 pertaining to the demarcation of boundary provides that the applicant shall implead all tenure holders as necessary parties whose boundaries of the adjoining fields touch the boundaries of Khasra Numbers which are required to be demarcated. The respondent No.1 while appearing as DW-1 has not stated that he is tenure holder of any field adjacent to the suit land, therefore, it was not necessary to implead him as party in the application which was submitted by the appellant to the Naib Tehsildar for spot visit. The spot visit of the Naib Tehsildar was not meant to demarcate the boundaries of the land holdings of appellant and respondent No.1. The purpose of visit of Naib Tehsildar was to identify the digging of land comprised in khasra No.920/493, measuring 0-13-13 bighas. PW-3 Mohinder Kumar, Naib Tehsildar appeared in the witness box and he has not been cross-examined regarding the details of demarcation. There was no dispute with respect to identification of khasra No.920/493/1, measuring 0-0-10 bighas. The Courts below have erred in ignoring Tatimas Ex.PW-2/A and Ex.PW-2/B. 9. The interference over the suit land has been established by respondent No.1 himself. The respondent No.1 in the written statement has taken plea that he is in possession of the suit land. This stand of respondent No.1 is sufficient to establish his interference over the suit land which is part of khasra No.920/493. The appellant has proved his title over land in dispute. The respondent No.1 has not proved his title over the suit land. The respondent No.2 is son of respondent No.1 and respondent No.3 is the daughter-in-law of respondent No.1. The respondents No.4 to 6 are masons. There is no clinching evidence regarding the interference of respondents No.2 to 6 on the suit land. However, appellant has established the interference over the suit land by respondent No.1. The respondent No.2 is son of respondent No.1 and respondent No.3 is the daughter-in-law of respondent No.1. The respondents No.4 to 6 are masons. There is no clinching evidence regarding the interference of respondents No.2 to 6 on the suit land. However, appellant has established the interference over the suit land by respondent No.1. He has also established that respondent No.1 has raised some construction over land measuring 0-0-10 bighas shown by khasra No.920/493/1 without any right, title or interest. The Courts below have misconstrued, misinterpreted the evidence in dismissing the suit of the appellant. The appellant is entitled to decree of permanent prohibitory injunction as well as mandatory injunction for restoration of suit land to its original position. The substantial question of law noticed above is decided in favour of the appellant and against the respondents. 10. In view of above, appeal is allowed. Impugned judgments, decrees of both the Courts below are set aside. The suit of the appellant is decreed. A decree of mandatory injunction for demolishing the structure built over khasra No.920/493/1, measuring 0-0-10 bighas as per in tatimas Ex.PW-2/A and Ex.PW-2/B is passed in favour of appellant and against respondent No.1. The respondent No.1 is also restrained from interfering in any manner over land comprised in khasra No.920/493/1, measuring 0-0-10 bighas, situated in Mohal Dhaniyara, Illaua Tungal, Tehsil Sadar. Tatimas Ex.PW-2/A and Ex.PW-2/B shall form part of the decree. No costs.