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2016 DIGILAW 1732 (HP)

Kuldeep Chand v. Satya Devi

2016-08-20

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the impugned judgment and decree of the learned District Judge, Una, H.P., whereby he affirmed the rendition of the learned Sub Judge 1st Class, Court No.II, Amb, District Una. The defendant standing aggrieved by the concurrently recorded renditions of both the learned Courts below against him concerts through the instant appeal constituted before this Court, to reverse the judgments and decrees of both the Courts below. 2. The facts necessary for rendering a decision on the instant appeal are that plaintiff was the owner in possession of land measuring 10 Kanals 7 marlas comprising of Khasra No. 1980 as per copy of the jamabandi for the year 1980-81 situate in village Amb, Tehsil Amb. Out of the above said land, the plaintiff is said to have sold the land measuring 10 karams x 18 karams shown by khasra No. 1980/1 in favour of the defendants. The defendants were alleged to have constructed their house on the aforesaid land. However, at the time of raising construction of their house, the defendants are said to have encroached upon 98 sq.mtrs. the land of the plaintiff. The defendants are said to have raised wall between points ABCD and have also installed a gate at points A and B on the eastern side of their house. The defendants are further shown to have encroached upon some other land of the plaintiff on the western side of their house as shown by letters FGHI. The possession of the defendants over the disputed land was stated to be that of trespassers and the plaintiff claimed the possession of the disputed land against the defendants on the allegation that the defendants have refused to vacate this land despite being asked to do so. 3. The suit of the plaintiff was resisted by defendants who have filed written statement in the case. The defendants have denied that they have encroached upon any land of the plaintiff. It was averred that the land purchased by the defendants from the plaintiff was demarcated and shown to the defendants in presence of the plaintiff and the defendants have raised the construction of their house on this very land and they have not encroached upon any further land of the plaintiff. 4. It was averred that the land purchased by the defendants from the plaintiff was demarcated and shown to the defendants in presence of the plaintiff and the defendants have raised the construction of their house on this very land and they have not encroached upon any further land of the plaintiff. 4. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest on 10.01.1994:- 1. Whether plaintiff is entitled to the possession of suit land marked as ABCED and FGHI in the site plan attached with the plaint? OPP. 1A. Whether defendants have encroached upon an area 98 Sq.mtrs. marked by letters ABCDE and FGHI in the site plan? OPP. 1B. Whether the possession of defendants over portion marked ABCDE and FGHI is that of trespasser? OPP. 2. Whether plaintiff has no locus-standi to file the present suit? OPD. 3. Whether suit is bad for non-joinder of necessary parties? OPD. 4. Whether plaintiff is estopped by her act and conduct as alleged to file the present suit? OPD. 5. Relief. On 19.2.1996 the learned trial Court framed another issue: “Whether the report of the Local Commissioner is liable to be set-aside.” 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff besides the learned First Appellate Court dismissed the appeal preferred therefrom before it by the defendants. 6. Now defendant Kuldeep Chand has instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 25.08.2004, this Court admitted the appeal on the hereinafter extracted substantial question of law:- “Whether the relief granted to the plaintiff by the Courts below was beyond the scope of the pleadings.” Substantial question of law 7. Uncontrovertedly, the appellant purchased an area measuring 1 kanal from the plaintiff. He raised construction beyond the area sold to him by the plaintiff sequelling his hence encroaching upon the land of the plaintiff. Uncontrovertedly, the appellant purchased an area measuring 1 kanal from the plaintiff. He raised construction beyond the area sold to him by the plaintiff sequelling his hence encroaching upon the land of the plaintiff. The factum of the defendant encroaching upon the land of the plaintiff stands vividly pronounced by the Revenue Officer concerned in his demarcation report comprised in Ext.PW-3/D. The learned counsel appearing for the defendant/appellant has made a vigorous attempt before this Court to scuttle the efficacy of demarcation report comprised in Ext.PW-3/D on the anvil of the Local Commissioner concerned not stepping into the witness box for proving the trite factum of his holding demarcation of the relevant site in consonance with the relevant procedure encapsulated in the H.P. Land Code Manual. Furthermore, the learned counsel for the defendant has made a vehement espousal herebefore of the non rendition of a verdict by both the Courts below upon the objections reared by the defendant against the tenacity of the findings recorded by the local commissioner in his report comprised in Ext.PW-3/D renders his relevant report when construed in coagulation with the purported infirmity afore-referred to hence stand gripped with an aggravated vice of invalidation. He also contends of the findings pronounced by both the Courts below bereft of theirs pronouncing a verdict upon their objections qua it hence stains them with a vice of theirs standing pronounced in a summary besides in a post haste manner also obviously bespeaks of non application of their judicial mind qua the tenacity of Ext.PW-3/D rendering them it to be wanting in any legal vigour. Furthermore, the learned counsel appearing for the defendant has made loud echoings hereinbefore qua the emanation upsurging from the depositions of the plaintiffs’ witnesses marking their stark acquiescence qua the construction raised by him upon the suit land especially with communications occurring therein of the defendant raising construction within the precincts of the area earmarked by the plaintiff at the time of his purchasing it from the latter estops the plaintiff to inordinately proclaim hereinbefore of the defendant in his subjecting the suit land to construction his proceeding to do so without her consent. Initially the foremost onslaught constituted by the defendant to the report of the demarcating officer constituted in Ext.PW-3/D warrants its standing rested by this Court. Initially the foremost onslaught constituted by the defendant to the report of the demarcating officer constituted in Ext.PW-3/D warrants its standing rested by this Court. Even though in Ext.PW-3/D the demarcating officer has recorded of his at the stage preceding his subjecting the suit land to demarcation his not holding the Tatima pertaining to the inter se contiguous lands of the parties at lis hereat, non holding whereof at the apposite stage ensuing from its unavailability thereat. Nonetheless his proceeding to from the relevant Tatima available on the relevant mutations besides from the relevant field books, hence gauge their respective Karukans besides their respective areas. Furthermore, with the aforesaid manner of the demarcating officer making a determination of the configuration besides of the areas borne by the relevant contiguous lands of the parties at lis standing evidently concurred by both the plaintiff and the defendant under their respective statements recorded before him which stand respectively borne on Mark-A and Mark-B especially when signatures of the defendant occurring thereon stand not contested by him also with the apposite revelations manifested therein qua the displaying of satisfaction by the defendant qua the demarcation conducted by the demarcating officer of the relevant contiguous lands of the parties at lis, foments a conclusion of with the procedure adopted by the demarcating officer in gauging on the anvil of Ext.PW-3/G and Ext.PW-3/H the area besides the dimensions of the contiguous lands of the parties at lis, gauging whereof stood meted concurrence by the defendant as displayed by his statement comprised in Mark-B also with his in Mark-A displaying his concurrence with the measurements of the relevant contiguous lands of the parties at lis hence his standing estopped him from contending qua the gauging by the demarcating officer, the dimensions/areas of the relevant contiguous lands of the parties at lis while standing anvilled not upon the relevant Tatima being impermissible or hence his holding demarcation of the relevant contiguous lands of the parties at contest in purported stark departure of the procedure contemplated in the H.P. Land Manual also forestalls him from contending of the conclusions arrived by the demarcating officer in his report comprised in Ext.PW-3/D wanting in legal worth. Although it was preemptory for the demarcating officer to before his proceeding to demarcate the contiguous land of the parties at lis to hold the copy of the relevant Tatima yet with his assigning a good reason qua its unavailaibility also with his preceding thereto recording the consensus ad idem of the parties at lis qua the fixed points wherefrom he hence demarcated the contiguous lands of the parties at contest renders inconsequential the effect of unavailability of the relevant Tatima. 8. Be that as it may, with the defendant concurring with the determination by the demarcating officer of the relevant fixed points with the aid of Musabi available on the relevant mutations besides from the relevant field books renders inconsequential the effect of the demarcating officer not tendering by stepping into the witness box his report comprised in Ext.PW-3/D. Moreover, the effect if any of the learned Courts below not pronouncing upon the objections reared therebefore by the defendant qua the efficacy of the demarcation report embodied in Ext.PW-3/D is for the reasons ascribed hereinafter legally unworthy while. 9. Although it was imperative for the demarcating officer to by stepping into the witness box tender his report comprised in Ext.PW-3/D for hence his proving it. However, the dire legal necessity qua his thereupon proving it would acquire a paramount effect for hence rendering his report comprised in Ext.PW-3/D to hold no efficacy in law only when on the apposite issue framed by the learned trial Court on 19.2.1996 qua hence his report being liable to be quashed and set-aside, the defendant had adduced therebefore sustainable evidence for sustaining besides succoring the aforesaid espousal. However, though an apposite issue struck by the learned trial Court qua the objections raised by the defendant vis-à-vis the report of the demarcating officer comprised in Ext.PW-3/D yet as openly echoed by an order of the learned trial Court recorded on 9.10.1996 of the counsel for the defendant waiving his right to lead evidence for sustaining his objections qua the report of the Local Commissioner, warrants a deduction standing derived by this Court, of the defendant not pressing his objections qua the report of the local commissioner nor also his holding any evidence in support of the objections reared by him qua the report of the local commissioner. Contrarily, an inference stands awakened from the concurrence emanating from the defendant embodied in his statement comprised in Mark-B recorded by the demarcating officer prior to his holding demarcation of the relevant site besides also from his making concurrence to the demarcation of the relevant site held by the demarcating Officer, concurrence whereof stands bespoken in his statement comprised in Mark-B signatures whereon of the defendant remain uncontested by him of hence the counsel for the defendant standing constrained to waive the apposite opportunity to lead evidence for succoring his objections to the report of the local commissioner. Also the aforesaid apposite concurrences begetting the sequel of the demarcation report comprised in Ext.PW-3/D holding legal sinew. The sequel of the aforesaid discussion is of the acquiescence if any of the plaintiff upsurging from communications occurring in the plaintiffs’ evidence of the defendant holding his construction within the precincts of the area disclosed to him by the plaintiff at the time he purchased an area of 1 Kanal from the plaintiff, getting belittled. The reason for holding so, sprouts from the factum of the defendant conceding to his purchasing an area measuring 1 kanal from the plaintiff wherewithin alone he held a right to raise construction. Even if the area which stood disclosed to him by the plaintiff prior to his proceeding to raise construction fell in excess of the area alienated to him by the plaintiff yet it was enjoined upon him to get ascertained from the competent revenue officer the relevant dimensions of the land alienated to him. He omitted to do so. Contrarily for his omission he cannot merely on a surmisal assessment by the plaintiff of the area wherewithin the dimensions of 1 kanal of land occurred, forestall her from canvassing her vested rights to usurp his possession therefrom predominantly when the concert of the plaintiff to usurp his possession therefrom stands squarely anchored upon a valid demarcation report. 10. Contrarily for his omission he cannot merely on a surmisal assessment by the plaintiff of the area wherewithin the dimensions of 1 kanal of land occurred, forestall her from canvassing her vested rights to usurp his possession therefrom predominantly when the concert of the plaintiff to usurp his possession therefrom stands squarely anchored upon a valid demarcation report. 10. The learned counsel for the defendant has made a vociferous address before this Court qua the omission of the plaintiff to step into the witness box for corroborating the averments constituted in the plaint whereas the averments constituted in the plaint standing testified by her power of attorney who in his cross-examination makes communications of his holding an estate located at a distance of 20 km from the suit land also his showing ignorance qua the dimensions of the suit land rendered him while hence his unveiling the factum of his holding no personal knowledge qua the entire gamut of the controversy engaging the parties at lis also his unveiling his ignorance qua the averments testified by him in proof of the averments constituted in the plaint whereas in case he held personal knowledge qua the relevant facets embedded in the plaint would facilitate him to prove them dehors the plaintiff not stepping into the witness box for proving the averments, contrarily his unveiling his ignorance qua the entire gamut of the controversy besetting the parties at lis renders proof if any adduced by him qua the averments constituted in the plaint to hold no legal worth. He contends of the averments constituted in the plaint standing unsubstantiated. He also contends qua the omission of the plaintiff to step into witness box for proving the averments constituted in the plaint constraining a conclusion from this Court of theirs remaining unsubstantiated whereupon he contends of the suit of the plaintiff warranting dismissal. To succor his submission he relies upon judgments reported in 2002(3) SLC 285, 1999(3) SCC 576, 2000(2) SLJ 1736, 2002(3) SLC 478 and 2001(1) SLJ 463. The effect of the aforesaid submissions stand effaced in the light of this Court pronouncing with formidability of the demarcation report comprised in Ext.PW-3/D standing not bereft of any validity. To succor his submission he relies upon judgments reported in 2002(3) SLC 285, 1999(3) SCC 576, 2000(2) SLJ 1736, 2002(3) SLC 478 and 2001(1) SLJ 463. The effect of the aforesaid submissions stand effaced in the light of this Court pronouncing with formidability of the demarcation report comprised in Ext.PW-3/D standing not bereft of any validity. With the entire gravamen of the lis engaging the parties at lis standing hinged upon the encroachment made by the defendant upon the land of the plaintiff factum whereof enjoined adduction of best evidence comprised in the report of the demarcating officer concerned, imperatively when the relevant best evidence stands adduced also when it for reasons aforestated holds sinew besides when the attorney of the plaintiff did not hold the relevant demarcation nor was hence required to prove it hence his ignorance if any qua the entire gamut of the controversy embodied in the plaint also hence the effect of his testimony being discardable gets subsumed in the trite factum of the fulcrum of the controversy warranting its standing clinched by best evidence comprised in the report of the local commissioner, report whereof when holds validity also vigorously clinches the apt controversy it would be legally insagacious to on the plaintiff omitting to step into the witness box, draw any adverse inference qua her from her omission to step into the witness box, also it would be legally inapt to from ignorance if any of the power of attorney qua the entire gamut of the controversy embodied in the plaint, conclude of hence the averments constituted in the plaint remaining unproved nor it would be apt to conclude of the suit of the plaintiff warranting dismissal prominently when the factum probandum or the fulcrum of the controversy hinged upon the demarcation report Ext.PW-3/D stands thereupon clinched. 11. The result of the above discussion is that the appeal preferred by the defendant/appellant herein is dismissed and the substantial question of law is answered against him. The judgments and decrees rendered by the both the Courts below are maintained and affirmed. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All pending applications also stand disposed of accordingly. Records be sent back forthwith.