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2014 DIGILAW 1248 (HP)

Bhagat Ram v. Tara Chand

2014-09-11

RAJIV SHARMA

body2014
Judgment Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree dated 21.10.2002 of the learned Addl. District Judge, Mandi, H.P., rendered in Civil Appeal No. 63/97. 2. Key facts, necessary for the adjudication of this second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff, for the convenience sake) has filed a suit for injunction and consequential relief of possession of the land measuring 0-3-0 bighas, comprised in Kh. No. 494, Khewat No. 84 min/184 min, situated in Mohal Tulah, Tehsil Jogindernagar, Distt. Mandi, H.P., against the respondent-defendant (hereinafter referred to as the defendant, for the convenience sake). According to the plaintiff, he has constructed three rooms’ house over the suit land and some land is used as courtyard. The defendant has encroached upon 1 x 12 inches of the land and has constructed a pucca wall over the suit land. He had also applied for the demarcation of the land and Field Kanungo found that 1 x 12 inches of land has been encroached by the defendant. He has also given a detailed report. The defendant had also stacked his construction material over the plaintiff’s lintel and has also disturbed the support of the lintel resulting into cracks in the lintel of the plaintiff. 3. The suit was contested by the defendant. According to the defendant, his structure stood on his piece of land. According to him, the report of the Kanungo was not binding upon him. 4. The plaintiff filed the replication. The issues were framed by the learned trial Court on 4.4.1994 and 23.8.1996. The learned Civil Judge (Ist Class), Jogindernagar, decreed the suit on 24.2.1997. He passed a decree of possession of the part of the suit land by way of demolishing the wall measuring 1 x 12 inches, comprised in Khasra No. 494, Khewat No. 84 min/184 min, measuring 0-3-0 bighas, situated in Mohal Tulah, Tehsil Jogindernagar, Distt. Mandi, H.P. The defendant was also restrained from raising any construction or causing interference on the co-ownership of the plaintiff and others over the suit land. The report of the Kanungo Ext. PW-2/A was made integral part of the decree. 5. The defendant preferred an appeal against the judgment and decree dated 24.2.1997 before the learned Addl. District Judge, Mandi, H.P. The learned Addl. District Judge, Mandi, allowed the appeal on 21.10.2002, hence this regular second appeal. 6. The report of the Kanungo Ext. PW-2/A was made integral part of the decree. 5. The defendant preferred an appeal against the judgment and decree dated 24.2.1997 before the learned Addl. District Judge, Mandi, H.P. The learned Addl. District Judge, Mandi, allowed the appeal on 21.10.2002, hence this regular second appeal. 6. The regular second appeal was admitted on the following substantial questions of law on 27.12.2002: “2. Whether the learned District Judge was right in reversing the judgment of the trial court and dismissing the suit of the plaintiff merely because he found the report of demarcation PW-2/A prepared by PW-2 Jhuru Ram to be not satisfactory and not getting the fresh demarcation done in accordance with law to have the boundary dispute settled ?” 7. Mr. K.D. Sood, Sr. Advocate, has supported the judgment and decree passed by the learned Civil Judge (Ist Class) dated 24.2.1997. He has also supported Ext. PW-2/A. On the other hand, Mr. Ankush Dass Sood, Advocate, appearing for the defendant, has supported the judgment and decree dated 21.10.2002. According to him, the demarcation was not carried out as per the instructions issued by the Financial Commissioner. 8. I have heard the learned Advocates for both the sides and gone through the records of the case carefully. 9. PW-1, Sudesh Sood has produced the demarcation file. 10. PW-2, Ghuru Ram, Kanungo has conducted the demarcation of the suit land. He conclusively found that the defendant has encroached upon the part of the suit land measuring 1 x 12 inches. He proved demarcation report Ext. PW-2/A. According to him, the defendant had raised a wall on the suit land, which was in the ownership of the plaintiff. He has affixed the permanent points before undertaking the demarcation. In his cross-examination, PW-2 Ghuru Ram, Kanungo has specifically stated that he had called all the co-sharers on the spot at the time of the demarcation. 11. PW-3, Bhagat Ram deposed that he had constructed the house in the year 1992 and in his absence in the month of July, 1992, the defendant has raised the wall. He has got the suit land demarcated. 12. PW-4, Shyam Singh deposed that when the plaintiff had constructed the house in the year 1992, the wall was not raised. The wall was raised by the defendant after the construction was raised subsequently. 13. He has got the suit land demarcated. 12. PW-4, Shyam Singh deposed that when the plaintiff had constructed the house in the year 1992, the wall was not raised. The wall was raised by the defendant after the construction was raised subsequently. 13. PW-5, Bhajan also deposed that he has supplied the material for the purpose of construction of house of the plaintiff. The land was vacant. 14. According to DW-1, Tara Chand, the wall was raised long back. He has not raised any construction over the suit land. He has constructed the house in the year 1988. The mason belongs to Sarkaghat. 15. DW-2, Sohan Singh deposed that the wall was raised in the year 1987. He deposed that his house is at village Tulah which is at a distance of half kilometer from the suit land. DW-2 in his cross-examination deposed that demarcation was also conducted second time at his request. However, the defendant has not placed on record any report to this effect. According to the copy of mutation No. 309 dated 10.3.1991, Ext. D-1, the plaintiff had purchased a share of suit land measuring 0-3-0 bighas from the share of Gopal Singh. He had applied for the demarcation of the suit land. 16. The plaintiff has conclusively proved that his house was situated on entire suit land i.e. land comprised in Kh. No. 494 measuring 0-3-0 bighas. Mr. Ankush Das Sood, Advocate, has vehemently argued that PW-2 Ghuru Ram, Kanungo has not carried out the demarcation, as per the musabi. The learned Addl. District Judge has taken note of the fact that musabi was on the record. The learned Addl. District Judge has discarded the report Ext. PW-2/A, only on the ground that the field Kanungo has not specifically stated that he has taken into consideration the musabi at the time of the demarcation. The fact of the matter is that aks musabi Ext. PW-2/B was already on record. PW-2 Ghuru Ram, at the time of demarcation has also fixed pucca points as per law and has also taken into account the ‘lattha’. 17. The learned Addl. District Judge, Mandi, has not correctly appreciated the oral as well as the documentary evidence placed on record by the parties. The plaintiff has established that the defendant has encroached upon the land on the basis of the demarcation report Ext. 17. The learned Addl. District Judge, Mandi, has not correctly appreciated the oral as well as the documentary evidence placed on record by the parties. The plaintiff has established that the defendant has encroached upon the land on the basis of the demarcation report Ext. PW-2/A. PW-2 Ghuru Ram, Kanungo has consulted ‘aks musabi’, Ext. PW-2/B. The demarcation report Ext. PW-2/A is strictly in accordance with law and is based on Ext. PW-2/B, ‘aks musabi’. The substantial question of law is answered accordingly. 18. Consequently, the regular second appeal is allowed and judgment and decree passed by the learned Addl. District Judge, Mandi, H.P. dated 21.10.2002 in Civil Appeal No. 63 of 1997 is set aside. The judgment and decree passed by the learned Civil Judge (Ist Class), Jogindernagar, dated 24.2.1997 in Civil Suit No. 44 of 1993 is restored. Records be sent back.