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2016 DIGILAW 817 (HP)

Som Dutt v. Ram Narayan

2016-05-16

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The plaintiff filed a suit before the learned trial Court seeking a decree for vacant possession by demolition of construction raised in the area measuring 0-00-16 hectares depicted in the site plan as ABCD embodied in the land comprised in Khata No.40 min, Khatoni No. 59 min, Khasra No. 928, measuring 0-06-00 hectares situated in Mohal Thore Upperli, Mauza Gangot, Tehsil Dehra, District Kangra, H.P. The suit came to be decreed by the learned trial Court. The defendant standing aggrieved by the decree rendered against him by the learned trial Court assailed it by preferring an appeal therefrom before the learned Additional District Judge- II, Kangra at Dharamshala, H.P., whereupon the latter Court rendered a judgment in affirmation to the judgment and decree rendered qua the suit land in favour of the plaintiffs/respondents herein by the learned trial Court. Standing aggrieved by the judgment of the learned first Appellate Court, the appellant herein/defendant has instituted before this Court the instant Regular Second Appeal whereby he assails the concurrently recorded findings of facts against him by both the learned Courts below. 2. Briefly stated the facts of the case are that the plaintiffs have filed a suit for possession against the defendant alleging therein that the plaintiffs are owners in possession of the land comprised in Khata NO.40 min, Khatauni No.50 min, Khasra No.928, measuring 0-06-00 hectares situated in Mohal Thore Upperli, Mauza Gangot, Tehsil Dehra, District Kangra, H.P. (hereinafter referred to as the suit land) and the defendant is stranger to the same. The defendant is onwer of the adjoining land and has encroached upon an area of the suit land measuring 0-0016 hectares and has raised construction over it as depicted by the letters ABCD in the site plan without the consent of the plaintiff. The plaintiffs obtained demarcation of the suit land which was confirmed by the Ld. A.C. 1st Grade, Dehra on 5.2.2004 and on appeal, the learned Collector, Dehra confirmed the said demarcation on 26.8.2008. No further appeal against the confirmation has been preferred and as such, demarcation has attained the finality. The possession of the defendant over the suit land is unauthorzied without any right, title or interest, as such, the plaintiffs are entitled for the vacant possession of the suit land. 3. The defendant contested the suit and filed written statement. No further appeal against the confirmation has been preferred and as such, demarcation has attained the finality. The possession of the defendant over the suit land is unauthorzied without any right, title or interest, as such, the plaintiffs are entitled for the vacant possession of the suit land. 3. The defendant contested the suit and filed written statement. The defendant in his written statement has taken the preliminary objections inter alia estoppel, valuation, cause of action etc.. On merits, the defendant denied to have encroached upon the suit land and contended that the land shown by the plaintiffs in the site plan does not belong to them and the same is owned and possessed by the defendant being part and parcel of his land. No demarcation was conducted in the presence of the defendant. The defendant purchased land from Ram Krishan and Hari Krishan vide registered sale deed dated 16.9.1994 and the suit land shown in the site plan by the plaintiffs is part and parcel of the said land purchased by the defendant. The suit land is adjacent to PWD Dhaliara Dada Siba Road and if the suit land is less, the same is under the PWD Road. The defendant denied the remaining averments and a prayer for dismissal of the suit has been made. 4. The plaintiffs/respondents herein filed replication to the written statement of the defendant/appellant, wherein, they denied the contents of the written statement and reaffirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled for vacant possession of the suit land by demolition of superstructure as prayed for? OPP 2. Whether the suit of the plaintiff is within time as alleged? OPP 3. Whether the plaintiff has estopped from filing of the suit by his act and conduct as alleged? OPD 4. Whether the plaintiff has suppressed the material facts from the court as prayed for? OPD 5. Whether suit of the plaintiff is bad for non joinder of necessary parties, as alleged? OPD. 6. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents herein. OPD 4. Whether the plaintiff has suppressed the material facts from the court as prayed for? OPD 5. Whether suit of the plaintiff is bad for non joinder of necessary parties, as alleged? OPD. 6. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents herein. In an appeal, preferred therefrom by the appellant/defendant before the learned first Appellate Court, the first Appellate Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 7. Now the defendant/appellant herein 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 29.07.2015, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether on account of mis-appreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recorded by both Courts below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable? Substantial question of Law No.1: 8. Rendition of an adjudication by this Court upon the afore extracted substantial question of law stand anvilled upon the tenacity borne by the demarcation report comprised in Ex.PW2/A which stands proved PW-2, its author. Substantial question of Law No.1: 8. Rendition of an adjudication by this Court upon the afore extracted substantial question of law stand anvilled upon the tenacity borne by the demarcation report comprised in Ex.PW2/A which stands proved PW-2, its author. The learned counsel appearing for the defendant/appellant has with much force contended before this Court of any reliance thereupon by both the learned Courts below being wholly inapt in the face of the stark fact emanating from the germane record portraying of PW-2 while holding demarcation of the suit land along with the land contiguous to it, his not meteing compliance to the apposite guidelines enshrined in the Chapter 10.2 of The Himachal Pradesh Land Records Manual, the relevant portion whereof stands extracted hereinafter, infraction whereof stands engendered from predominantly besides pointedly qua his departing from the mandatory obligations cast therein whereunder he stands enjoined to prior to his holding/proceeding to conduct demarcation of the suit land along with land contiguous to it, under the respectively recorded statements of the parties at lis obtain their respective consensus ad idem qua the fixed recognizable fixed points wherefrom he hence holds leverage to conduct a valid demarcation. He proceeds to contend of with the apposite record omitting to underscore of PW-2 before proceeding to hold the apposite demarcation proceedings his begetting satiation of the aforesaid indispensable ingredient encapsulated in the hereinafter extracted apt provisions of The Himachal Pradesh Land Records Manual, renders Ex.PW2/A to hold no probative sinew whereupon he further contends of any reliance placed thereupon by the learned Courts below standing ridden with the vice of gross mis-appreciation by them of its import. Chapter 10.2 of the Himachal Pradesh Land Records Manual reads as under:- “10.2 The Financial Commissioner (Rev) Himachal Pradesh has issued the following instructions for the guidance of Revenue Officers and Field Kanungos dealing with the encroachment cases or disputes as to boundaries. With a view to ensure uniformity of practice and correctness, the Financial Commissioner Himachal Pradesh is pleased to issue the following instructions for the guidance of Revenue Officers and Field Kanungos for the purpose of delimitation of the boundaries cases under the provisions of Section 107 of the said Act:- I. If a boundary is in dispute, the Revenue Officer or the Field Kanungo should relay it from the Village-map prepared at the last settlement. If there is a map which has been made on triangulation system (Musalas bandi) he should find three fixed recognizable points on different sides of the place in dispute as near to it as he can, which are shown in the map. These points should be such as admitted by the parties that have remained undisturbed since the last settlement. II. If the parties cannot agree on any such fixed recognizable points, then the Revenue Officer/Field Kanungo will find such points themselves with the help of the field map and chaining on the spot which they find undisturbed since the last settlement. III. They, then will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances when thus compared agree in all cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from those lines to each of the points in which it is required to lay out on the ground. He will then lay them out with the cross staff as before and test the work by seeing whether the distance from one of his marks to another is the same as in the map. If there is only a small dispute as to the boundary between two fields, the greater part of which is undisturbed, then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map.” 9. The aforesaid submission addressed before this Court by the learned counsel appearing for the appellant/defendant does on its facade attain corroboration from the apparent prime factum of the demarcating officer omitting to prior to his holding demarcation of the suit land along with land contiguous to it under the respectively recorded statements of the contesting parties elicit their respective consensus ad idem qua the fixed points wherefrom he proceeded to hold demarcation. However, the aforesaid solitary omission may not per se overcome the tenacity of the findings recorded by him qua it in Ex.PW2/A. Even though the apt provisions of The Himachal Pradesh Land Records Manual which stand extracted hereinabove do entail a peremptory obligation on the demarcating officer for his apposite report holding formidability to prior to his conducting demarcation of the suit land besides of land contiguous to it for begetting besides unearthing any encroachment made at the instance of the delinquent, to under the respectively recorded statements of the contesting parties evince their consensus ad idem qua the fixed recognizable points wherefrom he proceeds to conduct demarcation yet effect, if any, of departure therefrom by him may not erode the vigour of his findings recoded in Ex.PW2/A nor would whittle down the tenacity of findings recorded therein, especially when there occurs a graphic pronouncement therein of his in the presence of the parties holding demarcation of the suit land besides of land contiguous to it preceding whereof he on associating the contesting parties, who thereat portrayed their bilateral consent to him qua ABCD constituting the undisturbed fixed recognizable points his thereupon therefrom proceeding to hold demarcation. Obviously, when during the course of the defendant's counsel holding him to cross-examination the counsel concerned putting a mere suggestion to him devolving upon the factum of his not at the apposite stage eliciting before him the presence of the parties at contest, suggestion whereof stood repulsed by PW-2, consequently, yet when even on PW-2 on the learned counsel for the defendant holding his cross-examination putting the aforesaid suggestion to him impinging upon the factum of his not eliciting the participation of the parties at contest in the proceedings held by him besides devolving upon the factum of his obviously remaining not present thereat, suggestion whereof when evincing a dis-affirmative response from him, the counsel for the defendant omitting to portray by adducing the relevant record manifestive of PW-2 before proceeding to hold demarcation his omitting to issue summons upon the contesting parties, record whereof on standing requisitioned may have sustained the propagation of the defendant of his presence not standing elicited by PW-2 at the apposite stage besides, whereupon the factum of the author of Ex.PW2/A making as delineated therein a false portrayal of his in the presence of the contesting parties with their bilateral consent ascertaining fixed points may hence have suffered erosion, as a corollary when the counsel for the defendant omitted to make the aforesaid concert for sustaining the factum of neither the presence of the defendant standing elicited by PW-2 at the apposite stage nor the defendant remaining present at the stage of PW-2 holding demarcation of the suit land along with land contiguous to it, contrarily fillips an inference of the portrayal in Ex.PW2/A of the contesting parties at the time of his holding demarcation of the suit land along with land contiguous to it recording their presence before him and of a portrayal therein of his thereat eliciting their bilateral consent qua the undisturbed points delineated therein as ABCD wherefrom he thereupon proceeded to hold demarcation hence garnering vitality besides amenable to its standing imputed the virtue of veracity. Furthermore, the apposite portion of Ex.PW2/A with portrayals therein of the contesting parties recording their presence before him at the time of PW-2 holding demarcation of the suit land along with land contiguous to it whereat he obtained their consent qua ABCD being the undisturbed points wherefrom he proceeded to hold demarcation standing not put to PW-2 by the counsel for the defendant while holding him to cross-examination constrains an inference of the apt portion of the demarcation report with the aforesaid manifestations therein standing acquiesced by the defendant whereupon an inference stands aroused of the apposite manifestations therein standing not bereft of any veracity. 10. 10. Dehors the above, given the inference formed herein-above of the defendant participating in the apposite demarcation proceedings held by the demarcating Officer on conclusion whereof he prepared Ex.PW2/A with an enunciation therein of the defendant encroaching upon the land held as owner by the plaintiff, hence, even if assumingly any reflections in Ex.PW2/A of his obtaining his consent qua ABCD delineated therein constituting fixed besides undisturbed points wherefrom he proceeded to demarcate the suit land along with land contiguous to it stand stained with any vice of falsity, nonetheless with the explicit mandate in the apposite provisions of The Himachal Pradesh Land Records Manual as stand extracted herein-above of the Revenue Officer despite concerts made by him to elicit the consensus ad idem of the contesting parties qua the fixed and undisturbed points wherefrom he proceeds to hold demarcation of the suit land along with land contiguous to it, concerts whereof on bearing no fruition, his hence holding authorisation to suo motto ascertain fixed points with the help of field map or chaining would yet hence lend sustenance to Ex.PW2/A. Contrarily any imputation of legal vigour to his suo motto unilaterally ascertaining fixed points would suffer emasculation only when there was an arduous, pain staking and pointed cross-examination of PW-2 by the learned counsel appearing for the defendant connotative of PW-2 without concerting to elicit the consensus ad idem of the contesting parties, who for the reasons recorded herein-above remained present at the apposite stage, concerts whereof though assayed yet sequelling the defendant not purveying to him his consent qua the fixed points marked in Ext.PW-2/A whereas when the learned counsel for defendant on holding PW-2 to cross examination has omitted to put the afore referred apposite suggestions to PW-2 as a corollary even if assumingly PW-2 proceeded to suo motto ascertain with the help of field book and chaining the undisturbed points wherefrom he held demarcation his afore-stated suo motto act is amenable to its falling within the ambit of the apposite provisions of the Himachal Pradesh Land Records Manual. Furthermore, even otherwise with the counsel for the defendant while holding PW-2 to cross-examination, for reiteration, his abstaining to put the aforesaid suggestion to him in portrayal of, of his not concerting to obtain the consent of the defendant qua fixed points hence his arbitrarily suo motto ascertaining them without the aid of field book and chaining, constrains an inference of even if assumingly Ex.PW2/A stands unaccompanied by the statement of the defendant with a portrayal therein of his meteing consent to PW-2 qua ABCD constituting as reflected in the apt portion of Ex.PW2/A to be the fixed points wherefrom he proceeded to hold demarcation yet with the deduction formed hereinabove arising from the counsel for the defendant while holding PW-2 to cross-examination omitting to put the aforesaid apposite suggestion to him qua his not concerting to elicit the consent of the defendant qua the fixed recognizable points besides concert whereof bearing no fruition whereupon an inference stands derived of PW-2 not arbitrarily nor capriciously holding demarcation without the aid of field book or without chaining. In aftermath, even if, prior to PW-2 holding demarcation, his not obtaining under a statement recorded in writing of the defendant, his consent qua the fixed points wherefrom he proceeded to hold demarcation, absence thereof cannot per se render vitiated his holding demarcation nor vitiates Ex.PW2/A. The prime reason for so holding stands spurred from an inference recorded hereinabove of his tenably holding demarcation with the help of field book and chaining only on his precedingly thereto concerting to obtain the consent of the defendant qua the fixed point which consent remaining unpurveyed to him by the defendant, yet any want of purveying of the apposite consent by the defendant to him did hence empower him to carry out with the help of field book and chaining, demarcation of the suit land along with land contiguous to it besides renders Ex.PW2/A to stand unvitiated while it remains unfaulted qua the factum of ascertaining of fixed undistrubed points by the Revenue Officer especially when any ascertainment thereof emanates from his seeking the aid of the field book besides of chaining. 11. 11. The upshot of the above discussion is of the mere withholding of consent by any contestant to the apposite demarcation qua the fixed points wherefrom the demarcating officer commences the apposite demarcation proceedings would not per se render fallacious any findings recorded in the apposite report prepared by him in sequel thereto, especially when the withholding of consent to the fixed points by any contesting party stands preceded by the demarcating officer concerting to obtain his consent qua the fixed points whereupon he hence stands empowered to suo motto ascertain them with the help of field book and by chaining. Also when the demarcation as conducted by the Revenue Officer stands proven to be held by him from fixed points ascertained by him from the relevant field book and chaining, the mere effect of any party thereto not purveying his consent to the demarcating officer qua theirs constituting the fixed recognizable undisputed points despite proven concert of the demarcating officer in the regard aforesaid standing endeavoured by the latter would rather not negate the tenacity of the demarcation proceedings besides would not vitiate the apposite demarcation report prepared in sequel thereto. 12. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. Accordingly, the substantial question of law is answered in favour of the plaintiffs/respondents and against the defendant/appellant. 13. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgements and decrees rendered by both the learned Courts below are maintained and affirmed. All pending applications also stand disposed of. No order as to costs.