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2015 DIGILAW 1295 (HP)

Salig Ram v. Devi Ram

2015-09-16

RAJIV SHARMA

body2015
JUDGMENT RAJIV SHARMA, J. 1. This Regular Second Appeal is directed against the judgment and decree dated 26.7.2004 rendered by the District Judge, Shimla in Civil Appeal No. 19-S/13 of 2002. 2. Key facts necessary for the adjudication of this appeal are that the appellant-plaintiff (herein after referred to as plaintiff for convenience sake) instituted a suit for permanent prohibitory and mandatory injunction against the respondent-defendant (hereinafter referred to as the defendant for convenience sake). According to the plaintiff, he was owner in possession of the house situated over the land comprised in Khata Khatauni No. 30/40, Khasra No. 638/33, measuring 0-4 biswa situated at Mauja Chakrial, Tehsil and District Shimla, as per Jamabandi for the year 1991-92. Defendant was owner in possession of the land comprised in Khata Khatauni No. 30/44, Khasra No. 638/33 measuring 0-4 biswa situated at Mauja Chakrial, Tehsil and District Shimla. Defendant has already covered his land and now started encroaching upon the land of the plaintiff. 3. Suit was contested by the defendant. Defendant has denied that he has made any encroachment over the land of the plaintiff. The construction of the house was raised by the defendant within his own land. 4. Replication was filed by the plaintiff. Issues were framed by the Sub Judge-4, Shimla on 15.9.1997. The Sub Judge dismissed the suit on 26.12.2001. Plaintiff filed an appeal before the District Judge, Shimla. He dismissed the same on 26.7.2004. Hence, the present appeal. It was admitted on the following substantial questions of law:- 1. Whether the courts below have failed to get the boundaries fixed by getting legal and valid demarcation carried out to ascertain extent of the area occupied by each of the parties and since there has been violation of law as laid down by this Hon’ble Court as reported in AIR 2003 HP 87 , therefore, needful is required to be done now? 2. Whether the learned District Judge, Shimla having failed to decide application under order 41 rule 27 read with order 26 rule 9 CPC because as per order dated 26.7.2004, he merely observed that this application has become infructuous, therefore, the findings recorded by him are contrary to the provisions of law? 5. Mr. 2. Whether the learned District Judge, Shimla having failed to decide application under order 41 rule 27 read with order 26 rule 9 CPC because as per order dated 26.7.2004, he merely observed that this application has become infructuous, therefore, the findings recorded by him are contrary to the provisions of law? 5. Mr. G.D. Verma, learned senior Advocate for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below have failed to get the boundaries fixed by way of demarcation. He has also contended that an application under order 41 rule 27 read with order 26 rule 9 of the CPC has been rejected without due application of mind. 6. Mr. Sumeet Raj Sharma, learned counsel for the respondent has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have gone through the records carefully. 8. Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. Plaintiff and defendant have purchased the land from joint Khasra No. 638/33. The share of plaintiff came to about 4 biswas and the share of the defendant was also about 4 biswas. However, plaintiff has not led any tangible evidence on record to prove as to which 4 biswas of land out of the joint Khasra number was purchased by him. He has not placed on record any tatima showing the specific portion of the land purchased by him. 10. In fact, three local commissions were appointed at the request of the plaintiff. One commission was addressed to the Tehsildar (Urban), Shimla, who was asked to demarcate the land of the parties and another commission was addressed to Sh. Chandan Goel, Advocate, District Courts, Shimla to ascertain whether any encroachment has been made on the spot or not. Yet, another commission was addressed to the Station House Officer of Police Station, Dhalli, Shimla. The identity of the land of the plaintiff and defendant was not specified. Thus, it would not have been possible for any of the commissioners to identify the land on the spot. Sh. Yet, another commission was addressed to the Station House Officer of Police Station, Dhalli, Shimla. The identity of the land of the plaintiff and defendant was not specified. Thus, it would not have been possible for any of the commissioners to identify the land on the spot. Sh. S.P. Sood, Local Commissioner has reported in his report that it was not possible to demarcate and show the particular portions of the parties on the spot because jamabandis did not indicate the particular portion which has been purchased by the parties. The Local Commissioner carried out the demarcation as per actual possession of the parties existing on the spot. 11. Mr. G.D. Verma, learned Senior Advocate has vehemently argued that objections filed against the report of the Local Commissioner were not taken into consideration by both the courts below. 12. Location of the land of plaintiff on the spot was not ascertainable from any revenue record before the Commissioner. The report was only objected to on the ground that plaintiff was not present. Since the revenue record was not produced, the land of the parties could not be demarcated on the spot. Plaintiff has not uttered even a single word when he appeared in the witness box on 28.7.2000 in support of his objections. 13. It has come in the report that plaintiff has constructed 53 feet x 38 feet building on the spot whereas he has purchased only 45 feet x 36 feet area. It is the plaintiff, who has raised construction beyond his area. Thus, it cannot be said that defendant has encroached upon his land. 14. DW-1 Ved Parkash has testified that when the Local Commissioner/Tehsildar (Urban), Shimla Sh. S.P. Sood visited the spot, he was present there. Wife of the plaintiff was present on the spot. 15. Defendant has appeared as DW-2. According to him, plaintiff has raised construction over 53 feet x 38 feet of land whereas he has purchased the area measuring 45 feet x 36 feet (4 biswas). This fact was admitted by the plaintiff. DW-3 Balak Ram has testified that the area constructed by the plaintiff exceeds the shares purchased by him. 16. Learned first appellate court has dismissed the application preferred under order 41 rule 27 read with order 26 rule 9 of the Code of Civil Procedure on 26.7.2004. Plaintiff has reiterated his demand for appointment of Local Commissioner repeatedly. DW-3 Balak Ram has testified that the area constructed by the plaintiff exceeds the shares purchased by him. 16. Learned first appellate court has dismissed the application preferred under order 41 rule 27 read with order 26 rule 9 of the Code of Civil Procedure on 26.7.2004. Plaintiff has reiterated his demand for appointment of Local Commissioner repeatedly. Plaintiff, as noticed hereinabove, has not produced any revenue record before the Local Commissioner Sh. S.P. Sood. No purpose could be served by ordering fresh commission since the sale in favour of the plaintiff was not shown to have been made with reference to Tatima. There is no evidence on record to pin point specific portion of the land purchased by the plaintiff. 17. From the report submitted by Sh. S.P. Sood, Local Commissioner, it is evident that notice was served on the plaintiff. However, his wife was present on the spot. He was assisted by Mohinder Singh Patwari of the area and Settlement Patwari for carrying out the demarcation. The area occupied by the defendant was found to be less than 4 biswas by Sh. S.P. Sood, Local Commissioner. Plaintiff himself has not assisted the Local Commissioner by producing revenue record including tatima. The demarcation was carried out by the Local Commissioner on the basis of Mussabi. The adjoining owners of the area have also stated that the plaintiff has encroached upon the land of the path by constructing a septic tank on it. The parties cannot be permitted to fill up lacuna in their cases by permitting them to lead additional evidence. 18. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments and decrees passed by both the courts below. 19. The substantial questions of law are answered accordingly. 20. In view of the analysis and discussion made hereinabove, there is no merit in the present appeal and the same is dismissed. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.