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2016 DIGILAW 1847 (HP)

Uma Dutt v. Goverdhan Dass

2016-09-01

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This regular second appeal is instituted against the impugned judgment and decree dated 1.3.2008 rendered by learned District Judge (Forest), Shimla, in Civil Appeal No. 41-S/13 of 07/05. 2. The key facts necessary for the adjudication of the appeal are that the appellant-plaintiff, Uma Dutt, (hereinafter referred to as the “plaintiff” for convenience sake) filed a suit for permanent prohibitory injunction against respondent-defendant, Goverdhan Dass (hereinafter referred to as the “defendant” for the convenience sake) restraining him from interfering in the possession of the plaintiff and proforma defendant Anju Bala (deleted from array of the respondents by this Court vide order dated 21.4.2010) over the land comprised in Khata Khatauni No. 128/241, Khasra No. 1195/1158/6, total measuring 2-15 Bighas to the extent of 1 biswa and the land comprised in Khata Khatauni No. 188/301, Khasra No. 950/2, measuring 3 biswas, situated in Mohal Chamyana, Hadbast No. 372, Tehsil and District Shimla, H.P. According to the averments made in the plaint, the plaintiff along with proforma defendant is owner in possession of the land and house comprised in Khata Khatauni No. 128/241, Khasra No. 1195/1158/6 and Khata Khatauni No. 188/301, Khasra No. 950/2. The plaintiff had purchased the land comprised in Khasra No. 950/2 along with structure vide registered sale deed dated 11.9.1995. He had also purchased the land to the extent of 1 biswa out of the land comprised in Khasra No. 1195/1158/6 vide registered sale deed dated 14.12.1999. The mutation was also attested in his favour. The plaintiff is in possession of the suit land where he has raised structure and some part of it is still vacant. The defendant has no right, title or interest over the suit land. The defendant was trying to interfere in the possession of the plaintiff over the suit land. 3. The suit was contested by the defendant. According to him, the plaintiff is not in possession of any portion of land comprised in Khasra No. 1195/1158/6 at the spot. The plaintiff has constructed his house on Khasra No. 952/2. The plaintiff and proforma defendant are owners to the extent of 2 biswas of land comprised in Khasra No. 950/2. Plaintiff has constructed his house in Khasra No. 952/2 and he has encroached upon the land more than his share. 4. The replication was filed by the plaintiff. The plaintiff has constructed his house on Khasra No. 952/2. The plaintiff and proforma defendant are owners to the extent of 2 biswas of land comprised in Khasra No. 950/2. Plaintiff has constructed his house in Khasra No. 952/2 and he has encroached upon the land more than his share. 4. The replication was filed by the plaintiff. The learned trial court framed the issues on 6.1.2003 and decreed the suit vide judgment and decree dated 20.9.2005. The defendant feeling aggrieved with the judgment and decree dated 20.9.2005 preferred an appeal before the learned first appellate court, who allowed the same vide impugned judgment and decree dated 1.3.2008. Hence, this regular second appeal, which was admitted on following substantial questions of law on 19.6.2009:- 1. Whether the learned first appellate court below has jurisdiction to appoint a Local Commissioner suo moto if it is necessitated to elucidate the real matter in controversy including the interference of the defendant over the suit land? 2. Whether once it is admitted by the defendant/respondent that he has no right, title or interest over the suit land, is it necessary to demarcate the suit land? 3. Whether the learned first appellate court below has erred in law by refusing the prayer for injunction by not appreciating the jamabandi, Ext.PW1/A to Ext.PW1/C, which is proved and established that the respondent/defendant has no right, title or interest over the suit land? 5. Mr. Jeevesh Sharma, learned counsel appearing for the plaintiff, on the basis of the substantial questions of law framed, has vehemently argued that the first appellate court should have appointed Local Commissioner suo moto to finally adjudicate the controversy between the parties. He has also contended that the learned first appellate court has mis-construed the oral as well as documentary evidence. 6. Mr. Adarsh K. Vashisth, learned Advocate appearing for the defendant, has supported the impugned judgment and decree dated 1.3.2008 passed by the learned first appellate court. 7. I have heard learned counsel for the parties and have also gone through the record carefully. 8. Since both the substantial questions of law are interlinked and interconnected, the same are taken together for determination to avoid repetition of discussion of evidence. 9. The plaintiff has appeared as PW1. He has placed on record copies of jamabandies, Ext. PW1/A to Ext. 8. Since both the substantial questions of law are interlinked and interconnected, the same are taken together for determination to avoid repetition of discussion of evidence. 9. The plaintiff has appeared as PW1. He has placed on record copies of jamabandies, Ext. PW1/A to Ext. PW1/C. He has also proved on record, Tatima, Mark A. According to him, he has raised construction on the suit land and portion of it is vacant. The defendant started digging the suit land and interfering in his possession. The defendant has no right, title or interest over the suit land. 10. PW2, Bias Dev, has corroborated the statement of PW1, plaintiff. According to him, the plaintiff has purchased 1 biswa of land in Khasra No. 1195/1158/6 from him, where he has raised his house and few portion of it is vacant. 11. The defendant appeared as DW1. According to him, he has purchased the land in Khasra No. 252/2 measuring 4 biswas as per jamabandi, Ext. PW1/B. He has raised the house on the land. Neither he has encroached upon any land nor he has dug the land of the plaintiff. The plaintiff is not in possession of 1 biswa of land in Khasra No. 1195/1158/6 on the spot. Khasra Nos. 952/2, 950/2 and 1195/1158/6 are separate. 12. DW2, Dhian Singh, Patwari, deposed that the plaintiff is owner of 2 biswas of land in Khasra No. 952/2. According to spot, the plaintiff has raised the construction in 4 biswas of land. The boundaries of Khasra No. 250/2 and Khasra No. 1195/1158/6 do not touch the plot of the defendant. 13. The defendant has categorically deposed that he has not encroached upon the land of the plaintiff. He has raised construction over 4 biswas of land comprised in Khasra No. 252/2. The plaintiff has neither got the land demarcated nor moved an application under Order XXVI Rule 9 of the Code of Civil Procedure for the appointment of Local Commissioner to ascertain whether the defendant has encroached upon his land or not. Rather, the plaintiff has testified that he has obtained the demarcation report, but he has failed to produce the same before the Court. In case he has got conducted the demarcation, he should have placed demarcation report on record. Thus, the learned first appellate court has rightly drawn adverse inference against the plaintiff. Rather, the plaintiff has testified that he has obtained the demarcation report, but he has failed to produce the same before the Court. In case he has got conducted the demarcation, he should have placed demarcation report on record. Thus, the learned first appellate court has rightly drawn adverse inference against the plaintiff. The burden to prove the fact that the defendant has encroached upon his land was on the plaintiff. It was not for the defendant to prove that he has not encroached upon the land of the plaintiff. The defendant was not required to lead negative evidence. The learned first appellate court has rightly appreciated the oral as well as documentary evidence. 14. Consequently, in view of analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending applications, if any also stands disposed of. No order as to costs.