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2015 DIGILAW 1693 (HP)

Khem Singh v. Y. R. Sharma

2015-11-18

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 7.6.2005 rendered by the District Judge, Solan in Civil Appeal No. 72-S/13 of 2004. 2. “Key facts” necessary for the adjudication of this appeal are that respondent-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) filed a suit for permanent prohibitory injunction against the appellant-defendant (hereinafter referred to as the “defendant” for convenience sake). Plaintiff was one of the co-owners of the suit land. He purchased 8 biswas of land from Khasra No. 153/57 vide sale deed No. 264 dated 18.3.1991. Defendant has no right, title or interest in the suit land. He has threatened to interfere in the suit land. 3. Suit was contested by the defendant. It was denied that plaintiff was owner in possession of the suit land. Plaintiff did not possess any part of Khasra No. 153/57. The suit land was part and parcel of Khasra No. 47. 4. Issues were framed by the Civil Judge (Senior Division), Solan. Civil Judge (Senior Division) decreed the suit on 21.9.2004. Defendant preferred an appeal before the District Judge, Solan against the judgment and decree dated 21.9.2004. He dismissed the same on 7.6.2005. Hence, the present appeal. It was admitted on the following substantial questions of law: 1. Whether the courts below were justified in rejecting the application for appointment of Local Commissioner when in the facts and circumstances of the case, boundary dispute could only be determined by appointment of Local Commissioner and adjudication of the dispute in accordance with High Court Rules and Orders Vol.I Chapter-I which procedure has not been followed? 2. Whether the discretion exercised in rejecting the application for additional evidence and not adjudicating and determining the exact location of the plot has vitiated the findings more particularly when it was found that the original Musabi and torn Momi copy thereof had not been produced and demarcation could be carried out with the Aks tatima in respect of Khasra numbers 57 and 47 which could have been located? 3. Whether production of additional evidence was necessary for satisfactorily pronouncing the judgment and judicial discretion has not been exercised while rejecting the same? 5. Mr. Rajnish K. Lal, on the basis of the substantial questions of law framed, has vehemently argued that the boundary dispute could only be determined by appointing Local Commissioner. 3. Whether production of additional evidence was necessary for satisfactorily pronouncing the judgment and judicial discretion has not been exercised while rejecting the same? 5. Mr. Rajnish K. Lal, on the basis of the substantial questions of law framed, has vehemently argued that the boundary dispute could only be determined by appointing Local Commissioner. He has lastly contended that application under order 41 rule 27 has been rejected in an illegal manner. 6. Mr. Neeraj Gupta 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 all 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. PW-1 Yudhishter Raj Sharma has deposed that he has purchased the suit land on 13.3.1991 from Surmi and Jeet Ram vide sale deed No.264. He has proved copy of sale deed Ex.P-1, copy of Jamabandi for the year 1991- 92 Ex.P-2 and tatima mark ‘A’. Defendant has no concern over the suit land. He had engaged labourers to remove the bushes. Defendant forced his labourers to leave the spot. He has proved copy of demarcation report mark ‘B’. He has denied in his cross-examination that Khasra No.57 is part of Khasra No. 47. 10. PW-2 Ashok Kumar has proved Latha and has also prepared Aksh from Latha qua Khasra No.153/57, 152/57, 56, 47, 38 and 48. 11. PW-3 Y.R. Sharma has led his evidence by filing an affidavit. He has produced Aksh Sajra Ex.P-4, copy of Jamabandi for the year 1991-92 Ex.P-5 and copy of Jamabandi for the year 1996-97 Ex.P-6. 12. Defendant has led his evidence by filing an affidavit. According to him, Naib Tehsildar Parma Nand had undertaken the demarcation. 13. DW-2 Nand Lal has also led his evidence by filing affidavit. According to him, on 15.5.1983 at the time of demarcation, Jeet Ram, Surmi and Krishan Das Bhatia were present on the spot. In his cross-examination, he has admitted that he has not seen the revenue record at the time of demarcation. He did not know which Khasra number exists below Khasra No.153/57. He did not know which Khasra number is in existence over Khasra No.47. 14. PW-3 Prem Dutt has deposed that he could not produce the record since the same was destroyed. He did not know which Khasra number exists below Khasra No.153/57. He did not know which Khasra number is in existence over Khasra No.47. 14. PW-3 Prem Dutt has deposed that he could not produce the record since the same was destroyed. 15. It is evident from the revenue record produced by the parties that Khasra Nos. 57 and 47 are separately owned and possessed by the parties. There is no contemporaneous evidence placed on record to suggest that any part of Khasra No. 153/57 forms part of Khasra No.47. 16. Mr. Rajnish K. Lal has vehemently argued that the courts below have not taken into consideration the demarcation report conducted by Parma Nand. Fact of the matter is that defendant has not produced Parma Nand, who has conducted the demarcation. Even from report it is not discernible that Khasra No.153/57 was part of Khasra No. 47. 17. Mr. Rajnish K. Lal has also contended that an application under order 41 rule 27 of the Code of Civil Procedure has been wrongly rejected. Defendant wanted to produce on record Aksh Sajra Kistwar and to summon the record pertaining to demarcation proceedings. It was not a case of boundary dispute, as argued by Mr. Rajnish K. Lal. Moreover, there was no encroachment found as per demarcation report dated 15.5.1983. The purpose of application under order 41 rule 27 is not to fill up the lacunae in the case. The purpose of application under order 26 rule 9 CPC is to ascertain the position on the spot. 18. 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.