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2013 DIGILAW 962 (HP)

PREM LAL v. SUKH RAM

2013-11-18

RAJIV SHARMA

body2013
JUDGEMENT RAJIV SHARMA, JUDGE- 1. THIS Regular Second Appeal is directed against the judgment and decree dated 31.3.2012 passed by the Additional District Judge, Ghumarwin, District Bilaspur, camp at Bilaspur in Civil Appeal No. 43/13 of 2010. 2. "KEY facts" necessary for the adjudication of this Regular Second Appeal are that respondents-plaintiffs (hereinafter referred to as "plaintiffs" for convenience sake) filed a suit for permanent injunction/possession initially against Prabhu Ram, Jagdish, Prem Lal and Jai Dei (hereinafter referred to as 'defendants' for convenience sake) (Prabhu Ram and Jai Dei died during the course of the trial and their names were deleted) and against the proforma defendant Bagshi Ram. According to the plaintiffs, they and proforma defendant Bagshi Ram were joint owners in possession of land measuring 10-13 bighas, comprised in Khasra No.249/22 min, Khata Khatoni No. 73 min/95, situated in village Bahlu Kharyala, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. Contesting defendants were strangers to the same and have no right herein but on 25.6.2002, defendants collectively came to suit land and started digging Gair Mumkin Rasta through the suit land. Plaintiffs objected to it. Defendants threatened to dispossess them and to raise construction. Written statement was filed by the contesting defendants. Defendants asserted themselves to be owner in possession of land comprising Khasra No. 247/21. According to them, they were in possession over the same for the last 80 years. It was asserted that in case possession of defendants was found over any part of the suit land comprised in Khasra No. 249/22, as alleged in the demarcation dated 10/11.9.2002, then possession of the defendants is open, peaceful, continuous to the knowledge of plaintiffs and public at large. They have perfected their title over the suit land measuring 0-5 bighas comprised in Khasra No. 249/22/1. According to them, construction made by them was completed on the spot much prior to the institution of the suit land. They have never threatened the plaintiffs to dispossess them from the suit land. 3. ISSUES were framed by the Civil Judge (Junior Division), Court No.2, Ghumarwin on 7.11.2007. She decreed the suit on 19.4.2010. Defendants Jagdish and Prem Lal preferred an appeal against the judgment and decree dated 19.4.2010 before the Additional District Judge, Ghumarwin. He dismissed the appeal on 31.3.2012. Hence, the present appeal by one of the defendants Prem Lal. 3. ISSUES were framed by the Civil Judge (Junior Division), Court No.2, Ghumarwin on 7.11.2007. She decreed the suit on 19.4.2010. Defendants Jagdish and Prem Lal preferred an appeal against the judgment and decree dated 19.4.2010 before the Additional District Judge, Ghumarwin. He dismissed the appeal on 31.3.2012. Hence, the present appeal by one of the defendants Prem Lal. Legal heirs of defendant Jagdish have been arrayed as proforma respondents alongwith Bagshi Ram. 4. MR. Adarsh K. Vashishta, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below have not correctly appreciated the oral as well as documentary evidence led by the parties. According to him, his clients have duly proved adverse possession. He also contended that application under order 26 rule 9 of the Code of Civil Procedure has wrongly been dismissed by the first appellate court. He lastly contended that courts below could not rely upon report Ex.PW-5/B. Mr. Ajay Kumar, learned Senior Advocate has supported the judgments and decrees passed by both the courts below. 5. I have heard the learned counsel for the parties and have perused the record carefully. 6. PW-1 Basanta Ram led his evidence by way of affidavit Ex.PW-1/A. According to him, on 25.6.2002, defendants collectively came over the suit land and started digging the same alongwith Government land described as Gair Mumkin Rasta. According to him, plaintiffs and Bagshi Ram were co-owners in joint possession of the suit land. Defendants have no concern with the suit land. They obtained demarcation of the suit land from Tehsildar on 10/11.9.2002. According to the report, defendants have encroached upon the suit land. According to him, they were entitled to possession over the suit land by way of demolition of structure raised by the defendants. He has proved statement Ex.P-1 and jamabandi Ex.P-2. Pw-2 Sohan Lal, Record Keeper has brought the original file of order dated 10/11.9.2002. 7. PW-3 Sada Ram has led his evidence by filing affidavit Ex.PW-3/A. According to him, plaintiffs alongwith proforma defendant are joint owners in possession over the suit land. Defendants are stranger to the suit land. They started digging the suit land on 25.6.2002. They forcibly constructed shops over the same. Demarcation of the suit land was taken on 10/11.9.2002. 7. PW-3 Sada Ram has led his evidence by filing affidavit Ex.PW-3/A. According to him, plaintiffs alongwith proforma defendant are joint owners in possession over the suit land. Defendants are stranger to the suit land. They started digging the suit land on 25.6.2002. They forcibly constructed shops over the same. Demarcation of the suit land was taken on 10/11.9.2002. According to the report, defendants were found to be in unauthorized possession over the Government land and 0.5 bighas of the suit land. 8. PW-4 Dhainu Ram has testified that as per demarcation conducted on 10/11.9.2002, land measuring 0-5 bighas was found to be under construction raised by the defendants. Pw-4-A Chaman Lal has brought record of file No.3/13 of 2003. 9. PW-5 Gian Chand is the retired Kanungo. According to him, demarcation of the suit land was conducted by Tehsildar Chandu Ram. He has expired. According to the demarcation report, it was found that the defendants have raised construction over 0.5 biswas described as Khasra No. 249/22/1 in Tatima prepared at the time of demarcation. There was a Government land comprised in Khasra No. 410/395 on the northern side of the suit land regarding which defendants were found in encroachment of 0-1 bighas. He has also produced record of encroachment proceedings Ex.PW-5/D and notice Ex.PW-5/E. 10. PW-6 Dev Raj, Patwari has identified signatures of Tehsildar Chandu Ram over demarcation report Ex.PW-5/B. He has deposed that he has prepared Tatima Ex.PW-5/C. Dw-1 Jagdish Chand has led his evidence by filing affidavit Ex.PW-1/A. According to him, there are other owners of the suit land other than the plaintiffs and defendant No.5. According to him, the suit land was earlier demarcated on 31.7.2002 and construction raised by the defendants was found over their own land. They have never interfered in the suit land. He has produced on record documents, mark-D Jamabandi, mark D-2 copy of order dated 17.8.2005, mark D-3 copy of demarcation report dated 31.7.2002, mark D-4 order sheet and mark D-5 report of Kanungo. 11. ACCORDING to Mr. Adarsh Vashisth, demarcation has already been undertaken on 31.7.2002 vide mark-D. However, as a matter of fact, land of the plaintiffs was not demarcated on the ground that Aksh Mushabi pertaining to the same khasra number was not available. It is also evident from the earlier report dated 31.7.2002 that demarcation was incomplete. 11. ACCORDING to Mr. Adarsh Vashisth, demarcation has already been undertaken on 31.7.2002 vide mark-D. However, as a matter of fact, land of the plaintiffs was not demarcated on the ground that Aksh Mushabi pertaining to the same khasra number was not available. It is also evident from the earlier report dated 31.7.2002 that demarcation was incomplete. PW-6 Dev Raj, Patwari has also testified that demarcation was incomplete on 31.7.2002. It is in these circumstances that the plaintiffs have obtained fresh demarcation from the Tehsildar. The report has duly been proved by PW-5 Gian Chand. PW-6 Dev Raj, Patwari has identified the signatures of Tehsildar over the demarcation report Ex.PW-5/B. He has prepared Tatima Ex.PW-5/C. Defendants have not examined any witness who has undertaken earlier demarcation report on 31.7.2002. It has not come on record that the plaintiffs were ever aware about the report dated 31.7.2002. It is reiterated that earlier demarcation report dated 31.7.2002 was only qua the land of the defendants. Defendants have miserably failed to prove the adverse possession. 12. BOTH the courts below have rightly appreciated the evidence led by the parties, including demarcation report Ex.PW-5/B. In these circumstances, an application filed by the defendants under order 26 rule 9 of the Code of Civil Procedure was not maintainable and the same has rightly been rejected by the first appellate court. The proceedings have attained finality and could not be permitted to be reopened by appointing Local Commissioner. Demarcation report Ex.PW-5/B has been duly supported by PW-5 Gian Chand and PW-6 Dev Raj. There is no merit in the contention of Mr. Adarsh K. Vashista that second demarcation report could not be obtained. It has been duly proved that earlier report was incomplete. It is in these circumstances that the second report was obtained, which stood duly proved. According to the latest report, contesting defendants have not only encroached upon the land of the plaintiffs but also on the Government land. 13. ACCORDINGLY, in view of the discussions 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. No costs.