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2014 DIGILAW 735 (HP)

Parkash Chand v. Parma Ram

2014-06-06

SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal is directed against the impugned judgment of the learned Additional District Judge-III, Kangra at Dharamshala, District Kangra, in Civil Appeal No. 8-B/XIII/12 decided on 16.7.2013, by which impugned judgment rendered by the First Appellate Court, the suit of the plaintiff, for, injunction and possession qua the suit land, as, decreed by the learned trial Court, was affirmed. The defendant has preferred an appeal before this Court. He has assailed the judgment and decree on various grounds as comprised in the grounds of appeal. 2. The facts necessary for decision are that the suit land is comprising Khata No. 104, Khatauni No. 157, Khasra No. 202, measuring 0-08-05 hectares situated in Mohal Bhattu Bhurla, Mauza Bhattu, Tehsil Baijnath, District Kangra. The land comprised in the aforesaid Khasra Number is averred to be exclusively owned and possessed by the plaintiff. The defendants are averred to be strangers to the suit land having no right, title or interest over the suit land. The cause of action which prompted the plaintiff respondent to institute the suit against the defendants arose on 19.4.2008 when the defendants entered upon the suit land and started collecting construction material over a part of the suit land. Despite requests made by the plaintiff not to dig the land, the defendants did not pay any heed towards the request of the plaintiff. During the pendency of the suit the defendants have encroached upon Khasra No. 202/1 to the extent of 0-00-16 hectares by digging foundation. The defendants were also found to have encroached upon Khasra No. 202/2, to, the extent of 0-00- 36 hectares, upon which the defendant No. 1 had erected store room, stairs, temple, latrine and sehan without any right title or interest. Consequently, a decree for permanent prohibitory injunction restraining the defendants from interfering in the suit land was sought for by the plaintiff-respondent from the trial Court, against the defendant-appellant. Besides a decree for possession of Khasra No. 202/1 measuring 0-00-16 hectares and Khasra No. 202/2 to the extent of 0-00-36 hectares was prayed for. 3. The suit was contested by the defendants by filing written statement wherein preliminary objections of maintainability, cause of action estoppel and locus standi was taken. On merits, it was contended that the possession at the spot is same as it was 30 years back. 3. The suit was contested by the defendants by filing written statement wherein preliminary objections of maintainability, cause of action estoppel and locus standi was taken. On merits, it was contended that the possession at the spot is same as it was 30 years back. It was further contended that the plaintiff had also filed a civil suit which was decreed for permanent prohibitory injunction and suit for possession was dismissed on 23.9.1998. Therefore, the present plaintiff filed an application under Order 39 which was also dismissed. It was denied by the defendants in the written statement that they have started interfering in the suit land. The suit land was demarcated behind the back of the defendants. The area shown in possession of the defendant No. 1 by the Local Commission is in his possession for the last so many years and temple, stairs, store room, latrine and sehan are in the land of the defendant No. 1, which he has purchased from one Shri Mahant. The demarcation is not proper and therefore, dismissal of the suit is sought. 4. On the pleadings of the parties, the learned Trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled for relief of injunction, as prayed for? OPP. 2. Whether the plaintiff is also entitled for relief of possession of land comprising Khasra No. 202/1 (0-00-16) hects.) and land comprising Khasra No. 202/2 (0-00-36 hects.) after demolition of the super structure, as prayed for. OPP. 3. Whether the suit is not maintainable. OPD. 4. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD. 5. Whether the suit of the plaintiff is barred by principle of res judicata? OPD. 6. Relief. 5. On perusal of the evidence adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff. In appeal, preferred before the learned first Appellate Court, against the judgment and decree of the learned trial Court, the learned first Appellate Court affirmed the findings, recorded by the learned trial Court and consequently, it affirmed the judgment and decree passed in favour of the plaintiff by the learned trial Court. 6. In appeal, preferred before the learned first Appellate Court, against the judgment and decree of the learned trial Court, the learned first Appellate Court affirmed the findings, recorded by the learned trial Court and consequently, it affirmed the judgment and decree passed in favour of the plaintiff by the learned trial Court. 6. In second appeal, this Court is beset with the task to determine whether the suit land comprised in Khasra No. 202/1 (0- 00-16) hects.) and land comprising Khasra No. 202/2 (0-00-36 hects.) has come to be encroached upon by the defendant-appellant. The encroachment upon the Khasra Numbers aforesaid has been concurrently concluded by both the Courts below to have been perpetuated by the defendants-appellant comprised in their acts of their having raised construction thereon. The concurrent conclusion, as, arrived at by the Courts below that both the Khasra Numbers aforesaid having come to be encroached upon by the defendant-appellant, who had no right, title or interest over the suit land, is, anchored or anvilled upon the factum of demarcation report, of, PW-3 comprised in Ext.PW-3/A. On the strength of the findings recorded in Ext.PW-3/A proved by PW-3, both the Courts below have concurrently and explicitly pronounced that the defendant- appellant without any right, title or interest encroached upon the Khasra Numbers aforesaid exclusively owned and possessed by the plaintiff-respondent. 7. A very feeble argument has been made by the learned counsel for the defendant- appellant before this Court, that, reliance upon the report of the demarcating Officer comprising Ext.PW-3/A, was misplaced as the suit land was subjected to demarcation behind his back. However, the said contention pales and fades in the face of, it, having emerged on a perusal of Ext.PW-3/C, that, he appended his signatures thereon. The factum of signatures of defendant-appellant existing on Ext.PW-3/C estops him from contending that, the demarcating officer had carried out the demarcation of the suit property, in his absence. Besides, also his omission to prefer objections to the findings recorded by the demarcating officer in Ext.PW-3/A, at, the earliest conveys the fact of his having accepted the authenticity and accuracy thereof. Conclusion, is, that the findings of the demarcating officer are to be revered. With the formation of the inference aforesaid, the findings and conclusion of the demarcating Officer, comprised in Ext.PW-3/A, remain unassailable. Conclusion, is, that the findings of the demarcating officer are to be revered. With the formation of the inference aforesaid, the findings and conclusion of the demarcating Officer, comprised in Ext.PW-3/A, remain unassailable. As a corollary, then, when the demarcation report forcefully echoes the fact of the defendant having encroached upon the suit land comprised in the khasra numbers aforesaid, hence, the decree for permanent prohibitory injunction, as well, as, possession as rendered by both the Courts below in favour of the plaintiff necessitate no interference. Accordingly, this Court finds no merit in the appeal, which is accordingly dismissed. Appeal dismissed.