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2016 DIGILAW 157 (HP)

Ved Parkash v. Uttam Chand

2016-03-01

DHARAM CHAND CHAUDHARY

body2016
JUDGMENT : Dharam Chand Chaudhary. (Oral) Challenge herein is to the judgment and decree dated 17.3.2003, passed by learned District Judge, Mandi, in Civil Appeal No.51/2000. Learned lower Appellate Court has dismissed the appeal and affirmed the judgment and decree dated 31.3.2000 passed by learned trial Court in Civil Suit No. 298/98/91. 2. The bone of contention in the present lis is a small piece of land measuring 0-2-10 Bigha, bearing Khasra No.1497/789/1, situate in Mohal Nagchala, Illaqa Balh, Tehsil Sadar, District Mandi. The suit land, as a matter of fact, forms part of land bearing Khasra No.1497/789, measuring 05.05.07 Bighas. 3. The Sub Divisional Collector, vide order dated 20.8.1987, Ext.PB has granted the suit land as Nautor to the plaintiff. The plaintiff claims that he is owner in possession of the suit land. The defendants, however, without any right, title or interest started digging the foundation over the suit land for the purpose of construction of a house. He requested them not to do so, but of no avail. Hence, the suit for the decree of permanent prohibitory injunction, restraining thereby the defendants from causing any interference over the suit land in any manner whatsoever or raising any construction thereon. In the event they succeed in raising construction over the suit land, the decree for mandatory injunction qua demolition of the construction so raised was also sought. 4. The defendants in the written statement have, however, denied the claim of the plaintiff being wrong and came forward with the version that the suit land is in their exclusive possession openly and continuously for a period over 30 years. It is they, who made the same fit for cultivation and sown crop of maize thereon and as such have acquired title in the suit land by way of adverse possession. The allegations that they started digging the suit land for the purpose of raising construction were denied being wrong and it is submitted that they have started the construction work over a different piece of land i.e. Khasra No.1497/789/2. The suit, therefore, has been sought to be dismissed. 5. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is entitled to the relief of permanent prohibitory and mandatory injunction, as prayed for? OPP. 2. Whether the defendants are in adverse possession over the suit land? OPD. 3. Relief.” 6. The suit, therefore, has been sought to be dismissed. 5. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is entitled to the relief of permanent prohibitory and mandatory injunction, as prayed for? OPP. 2. Whether the defendants are in adverse possession over the suit land? OPD. 3. Relief.” 6. The parties were put to trial on all the issues and they, in turn, have produced evidence comprising oral as well as documentary. Learned trial Court had initially decreed the suit on 13.6.1997, however, in an appeal learned lower appellate Court quashed the judgment and decree passed by learned trial Court and remanded the case to it to decide the same afresh after affording the plaintiff an opportunity to establish the identity of the suit land and the defendants to rebut the evidence in this regard produced by the plaintiff. Consequently, learned trial Court had appointed the Tehsildar (Sadar), as a Local Commissioner and sought his report qua identification of the suit land on the spot. The demarcation was conducted and report placed on record. Thereafter on appreciation of the evidence, learned trial Court has again decreed the suit. 7. In appeal, learned lower Appellate Court has affirmed the judgment and decree passed by learned trial Court and dismissed the appeal vide judgment and decree which is under challenge before this Court in the present appeal. 8. The complaint is that both Courts below have decreed the suit without assigning any reason. The plaintiff being out of possession, the suit could have not been decreed for the relief of injunction. The evidence available on record has not been appreciated in its right perspective. The report of the Local Commissioner being not per se admissible in evidence should have not been relied upon. The objections so as to the correctness of the report of Local Commissioner filed by the defendants were not taken into consideration. The evidence qua delivery of possession of the suit land to the plaintiff by the Patwari and Kanungo is stated to be not appreciated in its right perspective. The documents, Ext.DW3/A and Ext.DW10/B, have also been erroneously brushed aside. 9. The appeal has been admitted on the following substantial question of law: “Whether the impugned judgment is vitiated because of the misreading of the documentary evidence consisting of Ext.PX, PY, DW-10/A and DW-3/A.” 10. The documents, Ext.DW3/A and Ext.DW10/B, have also been erroneously brushed aside. 9. The appeal has been admitted on the following substantial question of law: “Whether the impugned judgment is vitiated because of the misreading of the documentary evidence consisting of Ext.PX, PY, DW-10/A and DW-3/A.” 10. Now it is in the light of what has been said hereinabove and the legal question framed for adjudication, I have heard learned counsel representing the parties on both sides. Mr. Satyen Vaidya, learned Senior Advocate, assisted by Mr. Vivek Sharma, Advocate, has strenuously contended that no legal and acceptable evidence, suggesting that the possession of the suit land was delivered to the plaintiff has come on record and rather the evidence available on record establishes that it is the defendants, who are in possession of the suit land. The decree for injunction, therefore, should have not been passed by both the Courts below. It is also canvassed that the objections raised on the report of Local Commissioner (Tehsildar Sadar) have neither been considered nor the defendants given opportunity to cross-examine the Local Commissioner. 11. On the other hand, Mr. G.R. Palsra, learned counsel, while taking this Court to the evidence available on record, has pointed out that what to speak of the evidence produced by the plaintiff; the evidence produced by the defendants itself demonstrates that the possession was already delivered to the plaintiff well before the issuance of Patta. According to Mr. Palsra, the defendants have misunderstood the identity of the suit land and the land they encroached upon, because according to him, the entire land is measuring 5-5-7 Bighas, whereas the suit land is only 0-2-10 Bigha. 12. On analyzing the rival submissions vis-à-vis the evidence discussed supra, it would not be improper to conclude that both the Courts below have appreciated the evidence available on record in its right perspective and not committed any illegality or irregularity in decreeing the suit. The conclusion so drawn by this Court is supported by Patta (Ext.PD ) viz., the order of grant of suit land as Nautor to the plaintiff. This order speaks about conducting of necessary inquiries through the Field Agencies, such as, Forest Department, Gram Panchayat and Revenue Department etc. All the Field Agencies have recommended the grant of the suit land as Nautor to the plaintiff. This order speaks about conducting of necessary inquiries through the Field Agencies, such as, Forest Department, Gram Panchayat and Revenue Department etc. All the Field Agencies have recommended the grant of the suit land as Nautor to the plaintiff. It is thereafter, the Sub Divisional Officer (Civil), Sadar Sub Division, Mandi, has granted the suit land as Nautor to the plaintiff vide order Ext.PB. This order alone is sufficient to arrive at a conclusion that the suit land was lying vacant on the spot and it is for this reason, the same was recommended to be allotted to the plaintiff. Had the same been in possession of the defendants or any one else, the Field Agencies should have recorded so in its reports. The testimony of DW-3 Mohinder Kumar, the then Kanungo, reveals that the possession of the suit land was delivered to the plaintiff well before the issuance of Patta (Ext.PB). No doubt while again in the witness box as DW-10, he expressed his ignorance qua this aspect of the matter, however, his statement in the witness box as DW-3 coupled with the recitals in the order of sanction Ext.PB, leads to the only conclusion that the possession of the suit land was delivered to the plaintiff well before the issuance of Ext.PB. Otherwise also, the issuance of order of sanction (Patta) is a ministerial job and in the case in hand must have followed by the delivery of possession of the suit land to the plaintiff. 13. Much has been said about Tatima Ext.DW3/A. The same has been prepared by Mohinder Kumar DW-3. As a matter of fact, this document is hardly of any help to the defendants for the reason that as per the same, the land bearing Khasra No.1497/789/1, measuring 0-4-16 Bighas, is allegedly in the possession of the defendants as disclosed by DW-1. The defendants have sown wheat crop on this portion of the land. This part of the Tatima seems to be wrong, because the area of land bearing Khasra No.1497/789/1 allotted to the plaintiff as Nautor is 0-02-10 Bighas and not 0-04-14 Bighas. The Khasra number in the Tatima, therefore, seems to be mentioned wrongly in Note No.2, because in the Tatima the land allotted to the plaintiff as Nautor has been denoted by Khasra No.1497/7689/1. The Khasra number in the Tatima, therefore, seems to be mentioned wrongly in Note No.2, because in the Tatima the land allotted to the plaintiff as Nautor has been denoted by Khasra No.1497/7689/1. Therefore, on the basis of this document, it cannot be said that the defendants have sown maize crop over the suit land. 14. As per the 1st Note in the Tatima, plinth 20” in height and 18” in width was found to be constructed over the land bearing Khasra No.1497/789/2. As a matter of fact, it is this piece of land over which, as per the stand of the defendants in the written statement, they constructed their house. Therefore, the defendants on this score also cannot claim to be in possession of the suit land. 15. On the other hand, the report submitted by the Local Commissioner indicates and identify the land measuring 0-2-10 Bighas denoted by Khasra No.1497/789/1. Local Commissioner has recorded the statements of both the parties. The plaintiff after having understood the boundaries of the suit land had placed stones on the boundary of this land. The defendants have also not disputed the identification of the suit land. Learned Senior Advocate has no doubt canvassed that the report is silent as to what was in existence over the suit land at the time of demarcation by the Local Commissioner and as such, the same should have not been accepted. I am not inclined to accept the submission so made for the reason that had the suit land been identified on the spot in possession of the defendants, why they should have filed objections to the report. Otherwise also, when the report was admitted to be correct by both the parties, there was no occasion to the trial Court to have called the Local Commissioner to be cross-examined by the parties. Therefore, Local Commissioner’s report also substantiates the plaintiff’s case. True it is that mutation of the suit land has been attested and sanctioned on 19.11.1992 i.e., during the pendency of the suit, however, that also cannot be a ground to arrive at a conclusion that the plaintiff was not in possession thereof, because the sanction and attestation of mutation does not confer any title in respect of the land and rather meant to keep the record straight for revenue and other similar purposes. 16. 16. The oral evidence as has come by way of the testimony of DW3, DW4, DW5, DW6, DW8 and DW10 amply demonstrates that all the witnesses have deposed differently and contradicted each other. 17. In view of what has been said hereinabove, it cannot be said that both Courts have not appreciated the evidence available on record in its right perspective. The impugned judgment rather has been passed on proper appreciation of the facts and circumstances of the case and as such the same does not call for any interference. Consequently, the appeal fails and the same is accordingly dismissed. There is, however, no order so as to costs.