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2015 DIGILAW 486 (HP)

Jagdishwari Devi v. Subhash Chand

2015-05-07

RAJIV SHARMA

body2015
JUDGMENT : Justice Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Hamirpur, H.P. dated 24.11.2003, passed in Civil Appeal No.72 of 1998. 2. Key facts, necessary for the adjudication of this regular second appeal are that respondent-plaintiff (hereinafter referred to as the plaintiff) instituted a suit for permanent prohibitory injunction and in the alternative for possession, against the appellant-defendant (hereinafter referred to as the defendant). According to the plaintiff, the land comprised in Khata No. 183, Khatoni No. 272, Kh. No. 2755/1/1571/3, measuring 9 marlas, situate in Tika Sujanpur, Tappa Bhaleth, Tehsil Sujanpur, Distt. Hamirpur, H.P., was owned by him and other co-sharers. The defendant was stranger and she has got no right, title or interest over the suit land. The defendant has started illegal and unauthorized interference over the suit land by digging the same for the purpose of raising construction of the septic tank over it and has started collecting construction material over the same. 3. The suit was contested by the defendant. According to the defendant, the septic tank was constructed in her own land and when it was being dug and constructed, the plaintiff raised no objection. The septic tank was ready by 1.10.1993. 4. The replication was filed by the plaintiff. The learned Sub Judge-II, Hamirpur, H.P. framed the issues on 22.4.1994. The learned Sub Judge-II, Hamirpur, H.P, dismissed the suit on 6.3.1998. The plaintiff, feeling aggrieved, preferred an appeal before the learned District Judge, Hamirpur. The learned District Judge, Hamirpur, allowed the same on 24.11.2003. Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial question of law on 24.3.2004: ?1. Whether the appellate court in this case could have relied upon the report of the Local Commissioner appointed by it without setting aside the report of the earlier Local Commissioner whose report was already on record on questions of facts already gone into by the trial court?? 6. Mr. Suneet Goel, Advocate, for the appellant, on the basis of the substantial question of law framed, has argued that the report of the Local Commissioner appointed by the first appellate Court could not be relied upon without rejecting the report submitted by earlier Local Commissioner. On the other hand, Mr. Deepak Kaushal, Advocate, has supported the judgment and decree rendered by the learned first appellate Court. 7. On the other hand, Mr. Deepak Kaushal, Advocate, has supported the judgment and decree rendered by the learned first appellate Court. 7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 8. The plaintiff has examined General Power of Attorney Sh. Fateh Chand as PW-1 and Amar Nath as PW-2. He has also examined PW-3 Baldev Ram and PW-4 Bidhi Chand. In rebuttal, the defendant has appeared as DW-1 and examined Swarup Chand as DW-2. 9. It is the admitted case of the parties that plaintiff is owner-in-possession of land comprised in Kh. No. 2755/1/1571/3, measuring 9 marlas, situate in Tika Sujanpur, Tappa Bhaleth, Tehsil Sujanpur, Distt. Hamirpur, H.P., as per jamabandi for the year 1987- 88, Ext. PD. The plaintiff had obtained demarcation report from the revenue authorizes, qua Kh. No. 2755/1/1571/3, from PW-4 Sh. Bidhi Chand, the then Field Kanungo, vide his report Ext. PA. The report Ext. PA was not accepted by the trial Court, the same being not in accordance with law and instructions laid down by the Financial Commissioner and by the High Court Rules and Orders. Accordingly, the suit was dismissed. 10. The plaintiff has moved an application under Order 26 Rule 9 CPC for appointment of the Local Commissioner before the first appellate Court. The same was allowed. Sh. Dila Ram, retired Tehsildar was appointed as Local Commissioner to demarcate the suit land afresh on the spot. He visited the spot on 24.2.1999. He prepared the report and placed the same on record alongwith the tatima and statements of the parties. The defendant had raised the objections to the report. These objections were decided alongwith the decision of the appeal. The learned first appellate Court has considered the objections raised by the defendant at length. The Local Commissioner, has conducted the demarcation on the spot in the presence of the parties besides Halqua Patwari and S/Sh. Fateh Chand, Suresh Kumar, Ramesh Kumar, Vijay Kumar and Krishan Sarup etc. The plaintiff had produced Musabi as well as Aks Musabi before him containing sikmi khasra numbers. The Patwari had also produced the mutations pertaining to partition of the land between the parties. The pucca points A, B, C & D were fixed in the presence of the parties. Fateh Chand, Suresh Kumar, Ramesh Kumar, Vijay Kumar and Krishan Sarup etc. The plaintiff had produced Musabi as well as Aks Musabi before him containing sikmi khasra numbers. The Patwari had also produced the mutations pertaining to partition of the land between the parties. The pucca points A, B, C & D were fixed in the presence of the parties. The report was also supported by Aks Tatima Shajra as well as the copy of Field Book. The report was strictly in conformity with the instructions issued by the Financial Commissioner governing the demarcation. 11. PW-1 Fateh Chand has deposed that the defendant has raised the construction of septic tank in the month of October, 1993. Thereafter, they obtained the demarcation in the month of November, 1993 and that they did not raise any objection thereto. According to PW-2 Amar Nath, the defendant had raised the construction of septic tank in October, 1993 and has encroached upon 3 marlas of the suit land. PW-4 Bidhi Chand, has earlier demarcated the suit land and submitted the report to the Court Ext. PA. 12. Defendant, DW-1 has admitted that the construction of the septic tank was completed on 15.9.1993 initially and later on stated that the construction work was commenced on 15.9.1993 and the same was completed within 10-15 days. DW-2 Swarup Chand deposed that the latrine was constructed by the defendant in September, 1993 and later on stated that the construction work commenced on 10-11 September and completed within 15-20 days. 13. The plaintiff has conclusively proved that the defendant has encroached upon the suit land to the extent of 3 marlas. Since the earlier report was not at all in accordance with law, the learned first appellate Court has allowed the application preferred by the plaintiff under Order 26 Rule 9 CPC for the appointment of the Local Commissioner to demarcate the suit land. Since the learned first appellate Court has appointed the Local Commissioner afresh, the earlier report would be deemed to be of no consequence. The substantial question of law is answered accordingly. 14. Consequently, the Regular Second Appeal is dismissed. The judgment and decree passed by the learned first appellate Court is upheld.