Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 568 (HP)

Besro Devi v. Ranjit Singh

2016-04-26

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal is directed against the judgment and decree, rendered on 17.6.2006 in Civil Appeal No.13 of 2001, by the learned Additional District Judge, Fast Tract Court, Hamirpur, H.P., whereby, the learned First Appellate Court while allowing the appeal, preferred by the plaintiff/respondent herein, set aside the judgment and decree, rendered by the trial Court on 28.11.2000. 2. Brief facts of the case are that the plaintiff had filed a suit for possession in respect of the land measuring 4-1/2 sarsahi described as Khasra No. 377/1 out of Khasra No. 377 situate in Tika Samwi, Tappa Bamson, Tehsil Bhoranj, District Hamirpur, H.P. which is alleged to have taken forcible possession by the defendant in the first week of January, 1993 though the defendant had no right, title or interest in the suit land. Despite several requests by the plaintiff to hand over the possession of the suit land, the defendant did not pay any heed to his requests. The defendant vide his separate written statement, contested the case of the plaintiff. It was submitted that there was an old cattleshed of the defendant on Khasra No. 377/1 measuring 10 marlas which was converted into residential house about 7 years ago. It was also submitted that there were old boundaries on the spot. It was alleged that the plaintiff was interfering with the land of the defendant comprised of Khasra No. 377/1 and 379 measuring 10 and 9 marlas respectively. It was denied that the defendant had encroached upon the suit land. 3. In his replication filed by the plaintiff he denied the claim of the defendant in the written statement and re-affirmed the averments made in the plaint. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter se the parties at contest:- (i) Whether plaintiff is entitled to the relief of possession? OPP. (ii) Whether there is residential house over Khasra No. 377/1 for the last 7 years, if so, its effect? OPD (iii) Relief. 5. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court had dismissed the suit of the plaintiff. In an appeal, preferred by the plaintiff before the learned first Appellate Court against the judgment and decree of the learned trial Court, the learned first Appellate Court allowed the appeal. 6. OPD (iii) Relief. 5. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court had dismissed the suit of the plaintiff. In an appeal, preferred by the plaintiff before the learned first Appellate Court against the judgment and decree of the learned trial Court, the learned first Appellate Court allowed the appeal. 6. Now the legal heirs of the defendant have 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 23.3.2007 this Court admitted the appeal instituted by the appellants, against the judgment and decree, rendered by the learned first Appellate Court on the hereinafter extracted substantial questions of law:- 1. Whether the first appellate court has erred in placing reliance upon Ex.P-1 copy of Jamabandi, Ext.P-2, Ext.PW-3/A, Ext.PW-3/B, application for demarcation, report of demarcation and Tatima while reversing the decree of the trial Court? Substantial question of Law 7. In support of the defendant encroaching upon the suit land, the plaintiff had placed reliance upon a demarcation report comprised in Ext.PW-3/A which stood accompanied by a Tatima which stands depicted in Ext.PW-3/B latter whereof stood prepared in consonance thereto. The estates of the plaintiff and the defendant are contiguous to each other. PW-3 who carried out demarcation of the contiguous estates of the parties at contest in sequel whereto he prepared Ext.PW-3/A accompanied by a Tatima comprised in Ext.PW-3/B has during the course of his deposition underscored therein the factum of his carrying out demarcation of the contiguous estates of the parties at lis in consonance with the principles enjoined in the apposite rules. However, with there being an enjoined obligation fastened upon him under the apposite rules of his preceding to his holding demarcation of the contiguous estate of the parties at lis, his ascertaining the fixed points wherefrom demarcation is to commence besides any ascertainment of the fixed points upsurging on a consensus recorded before him by the parties at lis obliged him to mete adherence to the tenets aforesaid especially when adherence thereof by him was indispensable for imputing sanctity to the demarcation carried out by him besides to the demarcation report prepared in consonance thereto. The learned trial Court had dis-imputed sanctity to demarcation report comprised in Ext.PW-3/A and to Tatima borne on Ext.PW-3/B, on the score of Ext.PW-3/A disclosing of his before proceeding to carry out demarcation of the contiguous estates of the parties at lis his not recording their respective statements portraying their consensus ad idem qua fixed points wherefrom he was to commence demarcation. Since validity would stand fastened qua the demarcation held by PW-3 only on his preceding to his holding demarcation for detecting encroachment purportedly at the instance of the defendant over upon the suit land owned by the plaintiff his peremptorily ascertaining fixed points on the parties recording before him their consensus ad idem qua theirs constituting fixed points wherefrom he hence stood authorized to hold demarcation. Since PW-3 has underscored in his deposition of his prior to his proceeding to hold demarcation his omitting to record the statements of the parties with a disclosure by each, before him of theirs consensually agreeing to the fixed points wherefrom demarcation was to be held by him rather rendered the ascertainment of fixed points besides the conclusion formed by the demarcating officer qua the fixed points wherefrom he proceeded to hold demarcation of the contiguous estate of the parties at contest being in its entirety a unilateral and an arbitrary exercise on his part. Consequently, with the ascertaining of fixed points by the demarcating officer wherefrom he commenced the demarcation of the contiguous estates of the parties at lis standing ridden with a vice of arbitrariness besides bereft of any sanctity qua theirs constituting volitionally agreed fixed points by the contesting parties rather when they stood unilaterally concluded by him to be the points wherefrom he stood authorized to hold a valid demarcation also vitiates the entire demarcation proceedings as also the demarcation report prepared in consonance therewith. The learned trial Court aptly concluded of hence the entire demarcation proceedings besides the demarcation report as well as the Tatima appended thereto reflective of the defendant encroaching upon the suit land to the extent of one marla being liable to be discounted. The learned first appellate Court had proceeded to on its assigning the flimsy reason of PW-3 in Ext.PW-3/A carrying out a detailed exercise to demarcate the contiguous estates of the parties at lis hence find fault in the reasoning adopted by the learned trial Court. The learned first appellate Court had proceeded to on its assigning the flimsy reason of PW-3 in Ext.PW-3/A carrying out a detailed exercise to demarcate the contiguous estates of the parties at lis hence find fault in the reasoning adopted by the learned trial Court. The learned First Appellate Court also hence discounted the reasoning afforded by the learned trial Court of non recording of by the demarcating officer the statements of the parties prior to his holding demarcation of the contiguous estates of the parties at lis with unfoldments therein of theirs portraying their consent to him qua the fixed points wherefrom he hence held leverage to commence the demarcation, vitiating the demarcation proceedings. However, the reason adopted by the learned First Appellate Court in discounting the reasoning afforded by the learned trial Court in concluding of the demarcation proceedings held by the local commissioner wanting in legal worth arising from the latter infringing the mandate enjoined upon him by the apposite rules of his prior to proceeding to hold demarcation of the contiguous estate of the parties at lis his standing enjoined to record the statements of the parties at contest with a communication by each to him of theirs consensually agreeing to the fixed points wherefrom the demarcating officer was hence authorized to proceed to hence hold a valid demarcation of their contiguous estates, when could not be easily slighted renders hence the disconcurrence of the first appellate court with the findings of the trial Court to suffer impairment. The necessity of the Local Commissioner or the demarcating officer preceding to his holding demarcation of the contiguous estates of the parties at lis his recording the consensus ad idem of the parties at lis qua the fixed points wherefrom he hence holds leverage to conduct a valid demarcation, is not an idle formality rather adherence thereto is indispensable for validating the demarcation proceedings especially when the salutary object underlying it, precludes the demarcating officer or the revenue officer concerned to arbitrarily besides unilaterally fix the fixed points wherefrom he holds demarcation of the contiguous estates rather is promotive of transparency as well as impartisanship in the holding of demarcation by the officer concerned. Given the salutary object underlying the adherence by the officer concerned with the tenets expounded hereinbefore inasmuch as of its promotive of transparency contrarily non adherence thereto would lead to a conclusion of the demarcation proceedings undertaken by the demarcating officer standing ridden with a palpable vice of lack of transparency besides with a stain of partisanship. In sequel, a tainted or a stained demarcation of the contiguous estates of the parties at lis is unworthy of acceptance by this Court. 8. The result of the above discussion is that the learned first appellate Court has mis-appreciated the evidence on record hence the judgment and decree rendered by the learned Additional District Judge warrants interference which is accordingly set-aside and the judgment and decree rendered by the learned trial Court is affirmed. The substantial questions of law are answered in favour of the legal heirs of the defendant. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All pending applications are also disposed of accordingly. Records be sent back forthwith.