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2015 DIGILAW 1286 (HP)

Rama Nand v. Mulmi Devi

2015-09-15

RAJIV SHARMA

body2015
JUDGMENT RAJIV SHARMA, J. 1. This regular second appeal is directed against the judgment and decree of the learned District Judge, Shimla, Himachal Pradesh dated 26.10.2006, passed in Civil Appeal No. 37-S/13 of 2006. 2. Key facts necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff), has instituted suit for permanent prohibitory injunction against the appellant-defendant (hereinafter referred to as the defendant). According to the plaintiff, she was exclusive owner-in-possession of the land comprised in Kh. No. 401 measuring 0-10-33 hectares, situated at Chak Purag, sub Chak Jamuni. She has raised an apple orchard on the land and defendant was trying to forcibly dispossess the plaintiff from the suit land. 3. The suit was contested by the defendant. On merits, the defendant pleaded that in connivance with the settlement staff, the plaintiff got herself recorded in possession over Kh. No. 400 and suit land comprised in Kh. No. 401. The revenue entries were alleged to be wrong. The plaintiff has not raised any orchard over the suit land. He was granted suit land in Nautor by the State of Himachal Pradesh. It was wrongly shown in possession of the plaintiff. He has also taken the plea of adverse possession. 4. The learned trial Court framed the issues on 13.9.2004. The suit was decreed vide judgment dated 28.3.2006. The defendant, feeling aggrieved, preferred an appeal against the judgment and decree dated 28.3.2006. The learned District Judge, Shimla, dismissed the appeal on 26.10.2006. Hence, this regular second appeal. 5. The regular second appeal was admitted on the following substantial question of law on 14.5.2007:- “1. Whether the Courts below have erred in not appointing the Local Commissioner for ascertaining the respective boundaries of the parties to the lis as the dispute is the boundary dispute between the parties? 2. Whether the findings of the first Appellate Court are wrong to the effect that appellant has not applied for demarcation despite the fact that the appellant had made an application for appointment of Local Commissioner for demarcation of the suit land?” 6. Mr. Satyen Vaidya, Senior Advocate, for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that the Courts below ought to have appointed the Local Commissioner to ascertain the respective boundaries of the parties. On the other hand, Mr. Mr. Satyen Vaidya, Senior Advocate, for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that the Courts below ought to have appointed the Local Commissioner to ascertain the respective boundaries of the parties. On the other hand, Mr. Neeraj Gupta, Advocate has supported the judgments and decrees passed by the Courts below. 7. I have heard learned counsel for the parties and gone through the judgments and records carefully. 8. Since both the substantial questions of law are interconnected, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. PW-1 Mulmi Devi has led her evidence by filing affidavit. She admitted that the road divides the land of both the parties and stated that her land is also above the road as well as that of the defendant. PW-2 Dinesh Bhandari, is the son of the vendor Amar Nath, from whom the plaintiff had purchased the land. He deposed that some land was above the road and some land was below the road and his father had planted apple trees in the year 1979. 10. DW-1 Joginder Singh deposed that Kh. No. 400 was wrongly shown in the ownership and possession of plaintiff alongwith Kh. No. 401. He has admitted that his father participated during settlement proceedings. He also admitted that there is apple orchard in the disputed land. However, he was not aware of the exact measurement of the land. He has also admitted that an appeal was filed before the revenue authorities, which was dismissed up to this Court qua Nautor land. DW-2 Chiranji Lal has led his evidence by filing affidavit. According to him, the house of the defendant is above the road which surrounded courtyard and apple orchard. The defendant was in possession of the same for the last more than 14 years. He was not aware of the disputed khasra numbers or its area. He was not aware that the plaintiff has raised the apple orchard. He has admitted that no demarcation was carried out in his presence, nor any settlement took place. DW-3 Prem Lal has led his evidence by filing affidavit. He was also not aware of the khasra numbers, the area or about how much land he was deposing. According to him, the plaintiff has not raised any apple orchard on the suit land. DW-3 Prem Lal has led his evidence by filing affidavit. He was also not aware of the khasra numbers, the area or about how much land he was deposing. According to him, the plaintiff has not raised any apple orchard on the suit land. The land was never demarcated in his presence. 11. According to Ext. PA, copy of jamabandi for the year 2001-02, the plaintiff is shown owner-in-possession of Kh. Nos. 400, 401, 405, 445, 446 and 447, measuring 0-74-94 hectares. Ext. PB, copy of Jamabandi for the year 1978-79 reflects Atma Ram owner-in-possession of Kh. No. 2037/1806/170, measuring 7 bighas and Kh. No. 2038/1806/170, measuring 2.18 bighas. In mutation No. 1191, Ext. PC, it has been shown that the numbers depicted in Ext. PB were carved out from Kh. No. 1806/170 and in Nautor were than granted to Atma Ram and he accordingly on payment of compensation thereof, became owner-in-possession. A tatima of the carved portion was drawn at the back of this mutation. In this document, Kh. No. 2038/1806/170/2 has been shown above the road and Kh. No. 2037/1806/170/1 below the road. There is no dispute about the existence of this road on the spot. Mutation No. 1088, Ext. PD, shows grant of land in Nautor to defendant Rama Nand. Kh. No. 1806/170/2, measuring 11.13 bighas carved out of Kh. No. 1806/170 was granted in favour of the defendant. A tatima of this portion was also drawn on the copy of mutation Ext. PD. It cannot be said that the grant which was effected in favour of Atma Ram was of the same land which earlier stood granted in favour of defendant Rama Nand. It was also not expected from the revenue agency that they would have granted the same piece of land in favour of the two parties. Separate parcels of land were allotted in Nautor to defendant and Atma Ram. In Ext. PE Aks Sajara Kistwar, Kh. Nos. 400, 401 and 405 are shown above the road which is passing through Kh. No. 403. Below this road, the other khasra numbers of the plaintiff are 445, 446 and 447. It thus duly establishes that the land which was allotted to Atma Ram from whom the land has been purchased by plaintiff remained as such even after recent settlement. The defendant has failed to prove that Atma Ram was granted land below the road. Below this road, the other khasra numbers of the plaintiff are 445, 446 and 447. It thus duly establishes that the land which was allotted to Atma Ram from whom the land has been purchased by plaintiff remained as such even after recent settlement. The defendant has failed to prove that Atma Ram was granted land below the road. The land was sold to the plaintiff in the year 1997. The defendant has not got the demarcation of Kh. No. 400 and 401 from the revenue agency. The plea of adverse possession has not been substantiated by the defendant. The defendant has failed to prove that the entries recorded in the revenue records were wrong. The defendant has never challenged the settlement proceedings. 12. Mr. Satyen Vaidya, Senior Advocate, has also argued that the Local Commissioner ought to have been appointed to ascertain the boundaries. The defendant, in fact has filed the application under Order 26 Rule 9 CPC for appointment of Tehsildar Kotkhai and Horticulture Inspector, Kotkhai, as Local Commissioners. The application was contested by the plaintiff. The same was rejected by the learned trial Court on 26.11.2005. In the present case, the suit has been filed by the plaintiff with respect to Kh. No. 401 by asserting that she was owner-in-possession of the same and respondent was interfering with her peaceful possession. According to the revenue record, the plaintiff was in possession of Kh. Nos. 400 and 401. Thus, there was no boundary dispute in the instant case between the parties. It was only if there was any boundary dispute, the report of the Local Commissioner could be of utmost importance. 13. Now, as far as the age of the trees is concerned, the defendant was required to lead cogent evidence as observed by the learned trial Court. The age of the trees was to be ascertained by not appointing Horticulture Inspector as Local Commissioner but by leading cogent evidence. The defendant has not assailed the order dated 26.11.2005 by filing revision. Though, observation has come in the judgment rendered by the learned District Judge that the defendant has not got the boundary demarcated from the revenue agency, but the fact of the matter is that there was no requirement for appointment of the Local Commissioner for demarcation since the plaintiff was in settled possession of the suit property. The substantial questions of law are answered accordingly. 14. The substantial questions of law are answered accordingly. 14. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending applications, if any.