Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 879 (HP)

Ramawati Vohra v. Devi Dayal

2016-05-20

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. 1. This appeal has been filed by the appellant-defendant against the judgment and decree dated 10.03.2008 passed by the learned Additional District Judge, Fast Track Court, Solan, District Solan, H.P., affirming the judgment and decree dated 04.07.2007 passed by the learned Civil Judge (Junior Division), Kasauli, District Solan, whereby the suit filed by the respondent-plaintiff has been decreed. 2. The brief facts of the case are that the plaintiff-respondent (herein after referred to as the ‘plaintiff’), filed a suit for possession in respect of the land, as detailed in the head note of the plaint, alleging therein that he was coming in possession of the suit land as a tenant and paying lagan @ Rs.1/- per annum since the time of his predecessor-in-interest. It was alleged by the plaintiff that out of 5 biswas of land in Khasra No.91, as per tatima, the plaintiff was in possession of 3 biswas of land in Khasra No.91/1 and the remaining 2 biswas of land in Khasra No.91/2 was in possession of Ganesh Dutt etc. It was further alleged that appellant-defendant (hereinafter referred to as the ‘defendant’) without any right, title and interest encroached upon the portion of the suit land and the house, existing on the same, in the year 1994. It was further alleged by the plaintiff that he applied for demarcation on 31.3.1995 and tatima of the land was prepared by Patwari on 3.11.1998. The plaintiff further alleged that he was entitled to recover the possession of the suit land from the defendant and was also entitled to recover the compensation at the rate of Rs.500/- per month w.e.f. 1.12.1996 from the defendant as use and occupation charges. 3. Defendant, by way of filing written statement, took preliminary objections that the suit was not maintainable, the plaintiff was estopped by his act and conduct to file the present suit and the plaintiff had suppressed the material facts from the Court. On merits, the defendant denied to have encroached upon the land of the plaintiff and alleged that no demarcation had been carried out in her presence. The defendant denied the claim of the plaintiff and prayed for dismissal of the suit. 4. On merits, the defendant denied to have encroached upon the land of the plaintiff and alleged that no demarcation had been carried out in her presence. The defendant denied the claim of the plaintiff and prayed for dismissal of the suit. 4. The learned trial Court, on the basis of pleadings, settled inasmuch as 8 issues and except issue No.4, decided all the issues in favour of the plaintiff and accordingly decreed the suit of the plaintiff. An appeal preferred before the learned Appellate Court was dismissed. 5. This second appeal was admitted on the following substantial questions of law: “(1) Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence and misconstruction of the pleadings of the parties and drawing wrong inferences from the facts proved on record, particularly, the demarcation report Ext.PW-1/A-2? (2) Whether the reliance on the demarcation report Ext.PW-1/A-2 is sustainable in view of the fact that when admittedly the demarcation had not been carried out in accordance with the instructions of the Financial Commissioner as also of the High Court Rules and Orders and by not fixing the permanent points and also demarcating the property in possession of the appellant? (3) Whether the demarcation report Ext.PW-1/A-2 is vitiated as the demarcation was carried out without notice of the appellant or affording opportunity to be present? (4) Whether the judgment of the court below is vitiated being not in accordance with the provisions of Order 20 rule 5 C.P.C. and the binding pronouncement of this Hon’ble Court in Om Parkash Versus State of H.P., AIR 2001 HP 18 as the court below has failed to independently consider the evidence and record findings on all the points involved and urged in the case?” 6. At the time of hearing of the appeal, one material question arose for determination of this Court. Accordingly, with the consent of both the parties, one additional question is formulated apart from the substantial questions of law already stand formulated:- “Whether the suit filed by the plaintiff i.e. present appellant could be/can be decided without looking into referring to the demarcation report Ex.PW-3/B which has been conducted allegedly not in accordance with law.” 7. I have heard learned counsel for the parties and have gone through the record of the case. 8. I have heard learned counsel for the parties and have gone through the record of the case. 8. Perusal of the judgments passed by both the Courts below clearly suggests that both the Courts below, while passing the impugned judgments, heavily relied upon the demarcation report Ex.PW-3/B which was as per record conducted by PW-4 Atma Ram on 7.6.2004 and submitted his report Ex.PW-3/B. Even present appeal has been admitted by the Court on the substantial questions No.1 to 4 as have been reproduced above and bare perusal of the same also suggests that controversy in the present case is with regard to demarcation conducted by PW-4 without issuing notice and affording an opportunity to be present at the spot to the present appellant. 9. However, substantial question No.4 relates to issue of non-consideration of evidence on record as well as findings on all points involved and urged in the case. Hence, this Court while deciding the present appeal would be examining the entire evidence, be it ocular or documentary, on record to decide the aforesaid substantial questions of law. 10. Shri K.D. Sood, learned Senior Counsel assisted by Mr.Rajnish K.Lall, Advocate, appearing on behalf of the present appellant vehemently argued that judgment passed by both the Courts below are perverse, based on misreading of oral as well as documentary evidence and as such the same deserves to be quashed and set aside being unsustainable in the eye of law. Learned Senior counsel stated that no reliance could be placed on demarcation report Ex.PW-3/B by the Courts below when admittedly the same was not carried out in accordance with law and instructions of Financial Commissioner as well as High Court Rules and Orders. He also stated that there is neither evidence on the record to suggest that notice was ever issued to the present appellant by the revenue authorities before carrying out demarcation on the spot nor an opportunity of being heard was ever afforded to the appellant by the revenue authorities at the time of carrying out demarcation. He strenuously argued that Courts below while deciding the case at hand has wrongly relied upon the inadmissible evidence and has misread and mis-appreciated the evidence available on record. It was also contended that the findings returned by the Courts below that the respondent-plaintiff was tenant over the suit land since the time of his predecessor-in-interest is contrary to the record. It was also contended that the findings returned by the Courts below that the respondent-plaintiff was tenant over the suit land since the time of his predecessor-in-interest is contrary to the record. Rather there was overwhelming evidence on record to suggest that respondent had no right, title or interest over the suit land. It was also submitted on behalf of the appellant that the Court below has decreed the suit of the plaintiff-respondent on the basis of demarcation report, Ex.PW-3/B which was admittedly not carried out in accordance with the instructions of the Financial Commissioner as well as High Court Rules and Orders. During arguments, with a view to point out the various discrepancies and illegality committed by Courts below, he invited the attention of this Court to the statement made by witnesses produced by both the parties as well as documentary evidence on record and prayed that appeal may be allowed and the judgments passed by the learned Courts below may be quashed and set aside. 11. Shri Neeraj Gupta, learned counsel appearing on behalf of the respondent-plaintiff, supported the judgments passed by both the Courts below. He contended that since concurrent findings have been returned by both the Courts below, no interference of this Court is called for in the present matter, especially in view of the fact that perusal of the judgments passed by both the Courts below suggests that same are based upon correct appreciation of evidence, be it ocular or documentary, available on record. During arguments Mr.Neeraj Gupta, Advocate, urged that if, for the sake of arguments, it is presumed that demarcation report Ex.PW-3/Bwas not carried out in accordance with law even then the judgments passed by both the Courts below cannot be said to be against the law and facts on record. He invited the attention of this Court to the plaint filed by the plaintiff, detail whereof has been given in the head note of the plaint, which was filed on the ground that the land was occupied and amalgamated by the defendant by demolishing construction. He forcefully contended that the case of the plaintiff was very specific that since the time of his predecessor-in-interest he was the tenant in respect of the land mentioned hereinabove and there was a Kucha house constructed in the portion and some of land was under cultivation. He forcefully contended that the case of the plaintiff was very specific that since the time of his predecessor-in-interest he was the tenant in respect of the land mentioned hereinabove and there was a Kucha house constructed in the portion and some of land was under cultivation. Mr.Gupta further contended that since the plaintiff had filed specific suit for possession detailing therein the specific Khasra numbers i.e. 91/1, measuring 3 biswas, 91/2 measuring 2 biswas and in support of that tatima and jamabandi were also placed on record, there was no requirement, whatsoever, for the demarcation which was, however, conducted on the spot by the revenue authorities. Mr.Gupta, during arguments, invited the attention of this Court to paras 3 to 6 of the plaint which are reproduced herein-below:- “2. That defendant without any right, title and interest had encroached a portion of the land and the house in Nov.94 and thereafter the entire land and house measuring 3 biswas has been forcibly occupied without any right, title and interests and against the resistance by the plaintiff and whereafter the plaintiff had applied for demarcation on 31.3.1995 and the tatima of the land was prepared by the Patwari on 3.11.98. 3. That the defendant had enlarged the area of the building and thus had occupied the entire land of the Plaintiff by demolishing the kachha structure in 1995-96 and thereafter and thus the Plaintiff had become entitled to the ownership and possession of the aforesaid land measuring 3 biswas as per tatima attached herewith with respect to khata No.61 Khatauni No.30 Khasra No.91 min situated at Village Garkhal Pargana Lachhrang. 4. That apart from this, the Plaintiff is entitled to receive compensation for illegal use and occupation at the rate of Rs.500/- per month from 1.12.95 onwards till suit and even after the date of suit till recovery of possession. 5. That the cause of action has arisen in Nov.96 onwards upto 31.3.98 completion before the filing the suit, when the defendant had started the encroachment and did complete the same up till 31.398 and whereafter the demarcation was again obtained as per desire of the defendant and the tatima was obtained on 3.11.98 as prepared by the Patwari Halqua Garkhal Teh. Kasauli Distt. Solan and the same had arisen within the jurisdiction of this Hon’ble Court. 6. Kasauli Distt. Solan and the same had arisen within the jurisdiction of this Hon’ble Court. 6. That the valuation of the suit for court fee and jurisdiction is assessed at Rs.500/- treating the suit to be a suit for possession with consequential relief of mesne profits etc. and as such court fee stamp of Rs.50/- has been affixed.” 12. As per Mr.Neeraj Gupta averments contained in the plaint, as have been reproduced above, leave no scope for referring to demarcation report Ex.PW-3/B because defendant Smt.Ramawati in her statement has not denied the fact that she is residing in the house, which was constructed over the land, detail whereof has been given above, rather she took a strange stand that this house has been constructed by her daughter Smt.Swaran Lata, who has not been impleaded as a party respondent in the present case, meaning thereby that Smt.Ramawati acknowledged the fact that some construction has been carried out on the land of plaintiff and she is residing in the same. Though Mr.Neeraj Gupta, while making aforesaid submissions, stated that demarcation report Ex.PW- 3/Bhas no bearing on the case of the plaintiff, but in the facts and circumstances of the present case, admittedly, the entire case has been decided by both the Courts below solely relying upon the demarcation report Ex.PW-3/B, it would be apt for this Court to sift entire evidence to ascertain that whether demarcation report Ex.PW-3/B could be taken into consideration by the Courts below while passing impugned judgments and decrees or not. As has been stated above, suit was filed by the plaintiff on the ground that his predecessor-in-interest was tenant in respect of land, detail whereof has been given in the head note of the plaint, and there was one structure by way of house and remaining portion of land under cultivation. As per averments contained in the plaint total area of Khasra No.91 is 5 biswas, whereas as per tatima the area of the plaintiff in Khasra No.91/1 is measuring 3 biswas. Plaintiff alleged that defendant without any right, title or interest had encroached upon the portion of the suit land and forcibly took the entire suit land in the year 1994 without any right, title or interest. There is also mention of demarcation got conducted on spot by the plaintiff. Plaintiff alleged that defendant without any right, title or interest had encroached upon the portion of the suit land and forcibly took the entire suit land in the year 1994 without any right, title or interest. There is also mention of demarcation got conducted on spot by the plaintiff. He was forced to file present suit in the year 1996 and as such prayed for decree for possession of the suit land falling in Khasra No.91/1 measuring 3 biswas. 13. A bare perusal of the issues framed by learned trial Court below vide order dated 6.1.2003 suggests that even the learned trial Court below before proceeding to decide the controversy had set up an issue, combined reading whereof make it clear that even learned Court with a view to solve the dispute in question itself framed a question: “Whether plaintiff since the time of his predecessor-in-interest was a tenant of owners in respect of land comprised in Khasra No.91/1 measuring 3 biswas?” Bare perusal of the other issues, which are not being reproduced here for the sake of brevity, it can safely be inferred that those all are interlinked to the basic question which has been reproduced above. The plaintiff who averred that he had become owner of the land comprised in Khasra No.91 min by virtue of operation of provisions of H.P. Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the ‘Act’) stated in his statement as PW-1 that he is the owner of the suit land and placed on record Jamabandi for the year 1993-94 Ex.PW- 1/A, wherein he has been shown as non-occupancy tenant (Gair Mouroosi). Similarly, Ex.PW-1/B has also been placed on record by PW-1 which also indicate with regard to the existence of house on Khasra No.91/1 min. This Court had an occasion to peruse the statement of the plaintiff’s witnesses during the final hearing of the present case but admittedly, ownership of the plaintiff has not been assailed in any manner in cross-examination by the appellant-defendant. Hence, the findings of the Courts below that the plaintiff who is non-occupancy tenant has become owner by virtue of the provisions of Act appears to be based upon the correct appreciation of the evidence available on record. Hence, the findings of the Courts below that the plaintiff who is non-occupancy tenant has become owner by virtue of the provisions of Act appears to be based upon the correct appreciation of the evidence available on record. Perusal of the document referred above clearly suggests that the plaintiff who was earlier tenant has become owner of the land comprised in Khasra No.91 measuring 3 biswas with the commencement of the Act. Moreover, perusal of Ex.PW-3/Bannexed with the plaint also buttress the stand of plaintiff who has specifically stated in the plant that the lagan of Rs.1/- has been affixed qua the suit land which he has been paying regularly at the rate of Rs.1/-. Aforesaid factum of paying lagan of Rs.1/- by the plaintiff has not been denied at all by the defendant, meaning thereby the plaintiff was in the occupation of the suit land. The specific case of the plaintiff is that the defendant, without any right, title or interest has encroached upon the portion of land, specific averments have been made in the plaint that in the year 1994 defendants have encroached upon the suit land measuring 3 biswas comprised in Khasra No.91/1. It has been specifically averred in the plaint that defendants have also occupied the house alongwith the entire area of 3 biswas. PW-1 categorically stated in his statement that defendant has encroached upon the suit land. PW-2 one Som Lal also supported the version of PW-1 and stated that defendant encroached upon the suit land owned by the plaintiff. PW-3 Khem Chand, Reader to Tehsildar, Kasauli, produced the record of the application moved by the plaintiff for demarcation Ex.PW-3/A. He also proved on record demarcation report conducted by Kanoongo Ex.PW-3/B and statement of plaintiff Devi Dayal regarding conducting of said demarcation which is Ex.PW-3/C. PW-4 another witness cited by the plaintiff is a person namely Atma Ram who had conducted the demarcation. He stated that he had conducted the demarcation of the suit land on 7.6.2004 and proved on record Ex.PW-3/B, however, in his cross-examination he stated that he had sent Chowkidar to call Ramawati but she did not come. He stated that he had conducted the demarcation of the suit land on 7.6.2004 and proved on record Ex.PW-3/B, however, in his cross-examination he stated that he had sent Chowkidar to call Ramawati but she did not come. Even in cross-examination at one point of time he stated that he did not conduct any demarcation of the spot, but lateron while answering Court question he stated that he conducted demarcation and as per tatima plaintiff was found in possession of the suit land. 14. Perusal of the pleadings filed before the Court nowhere suggests that there was some boundary dispute interse parties. Rather perusal of the plaint filed by the plaintiff leaves no doubt to conclude that suit was specifically for possession that too on the strength of the revenue entries made in favour of the plaintiff. Though in para-3 of the plaint plaintiff have used word “encroached”, but if entire text of averments contained in the plaint is read in its entirety, it can be safely inferred that suit for possession was filed against defendant solely relying upon the revenue entries made in the revenue record showing the plaintiff as non-occupancy tenant. 15. Perusal of written statement filed on behalf of present appellant-defendant shows that there is no whisper with regard to any boundary dispute, which could compel the Court below to rely upon the demarcation report as has been done in the present case. Rather vide para-3 of written statement defendant-appellant has specifically denied that they have any right, title or interest to have encroached upon the portion of land and house measuring 3 biswas forcibly and occupied the same without any right, title or interest despite of any resistance by the plaintiff. Though in para-1 of the written statement present defendant-appellant have attempted to portray that plaintiff has not intentionally given the complete details of the suit land as per Jamabandi and as such they prayed that suit is required to be dismissed in terms of order 7 CPC. If the written statement filed by the present appellant-defendant is read in its entirety they have not specifically answered the averments contained in the plant, especially where the plaintiff claimed himself to be the owner of the suit land on the strength of revenue entries as has been demonstrated above. If the written statement filed by the present appellant-defendant is read in its entirety they have not specifically answered the averments contained in the plant, especially where the plaintiff claimed himself to be the owner of the suit land on the strength of revenue entries as has been demonstrated above. Even there is no specific reply to para-5 of the plaint where specific averments with regard to encroachment by the defendants have been made by the plaintiff. Leaving everything apart, except for disputing demarcation report, which plaintiff had referred in para-3 of the plaint, no mention with regard to any boundary dispute interse the parties or there is any averment suggesting that land of the defendant was also adjoining to the land of the plaintiff. Though in view of the specific pleadings of the plaintiff claiming possession of the suit land on the basis of revenue entries, which were admittedly, recorded his name, there was no requirement for the trial Court below to rely upon the demarcation report conducted by the Kanoongo Ex.PW-3/B on 7.6.2004 i.e. during the pendency of the present suit. If the grounds taken by the defendant-appellant in the present appeal are seen in its entirety their main ground of challenge to the judgment passed by learned Courts below is that Courts below have wrongly relied upon demarcation Ex.PW-3/B which has not been carried out in accordance with law. 16. Mr.K.D. Sood, to prove the point that demarcation report is not valid one, invited the attention of the Court to the statement of PW-4 Atma Ram Kanoongo who had conducted demarcation on 7th June, 2004. From perusal of the statement of PW-4 leaves no doubt in the mind of this Court that admittedly at the time of carrying out demarcation on 9.6.2004 defendant Ramawati was not associated. If the statement made by the PW-4 in the cross-examination perused, it can be safely concluded that at the time of demarcation defendant Ramawati was neither sent summons intimating therein date of demarcation nor any effort was made on the given date to associate her in the demarcation proceedings. Even in his reply to the Court question which was put to PW-4 he admitted that he had carried out demarcation and as per report possession of plaintiff was found on the spot on the suit land. Even in his reply to the Court question which was put to PW-4 he admitted that he had carried out demarcation and as per report possession of plaintiff was found on the spot on the suit land. In this regard Mr.K.D. Sood, learned Senior Counsel, in support of his contention that demarcation Ex.PW-3/B cannot be relied upon as the same was not carried out in accordance with law, placed reliance on Maharashtra State Financial Corpn. Vs. Ashok K. Agarwal and Others, (2006) 9 SCC 617 , Suresh Kumar Dagla vs. Sarwan and Another, (2014) 14 SCC 254 and Dhannulal and Others vs. Ganeshram and Another, (2015) 12 SCC 301. 17. Perusal of the judgment relied upon by Mr.K.D. Sood clearly suggests that any demarcation carried out in violation of Rule in para 10.1, 10.2 Chapter X i.e. demarcation of boundaries of the H.P. Land Record Manual cannot be relied upon or in other words cannot be taken into consideration. There is also no dispute with regard to the preposition that before carrying out demarcation, it was incumbent upon the revenue authorities to issue summons to the parties intimating therein the date and time of the demarcation, which has been admittedly not done in the present case. Though PW-4 in his statement has admitted that he had tried to call defendant Ramawati at the time of demarcation but no documentary evidence has been placed on record to substantiate his aforesaid statement. Rather in his cross-examination he has admitted that no intimations whatsoever were sent to defendant-appellant Ramawati with regard to carrying out demarcation. In reply to Court question though he stated that he had conducted demarcation by fixing points but once it stands proved that demarcation carried out by him was in total violation of the Rules 10.1 and 10.2 of H.P. land Record Manual which specifically laid the guidelines for carrying out the demarcation, demarcation report Ex.PW-3/B could not be taken to be considered by the Courts below. 18. 18. In view of the facts clearly established on the record that defendant was not associated at the time of demarcation and the same was not carried out in accordance with law and Rules as prescribed under the H.P. Land Record Manual as well as High Court Rules and Orders and in view of the law relied upon by learned Senior Counsel appearing on behalf of appellant, no further deliberation on the issue is required because in the given facts and circumstances, it can be safely concluded that admittedly demarcation was not carried out in accordance with law. 19. Moreover at the very outset Mr.Neeraj Gupta, Advocate, had acknowledged that the record suggests that demarcation was not carried out in accordance with law, however, he had categorically stated that though in view of the specific pleadings made in the plaint and reply thereto made by defendant in written statement had left no scope for trial Court below to order for demarcation. As has been noticed above, prayer for appointment of Local Commissioner was made by defendant-appellant which was not objected by the plaintiff; meaning thereby the plaintiff was also party to passing of order dated 18.9.2006 i.e. another thing that demarcation pursuant to order dated 18.9.2006 was not carried out. 20. Now, if I proceed to examine the case, as has been projected by Shri Neeraj Gupta, Advocate, who vehemently argued that suit filed by the plaintiff, was for possession on the strength of revenue entries which were admittedly in his favour and there was no requirement of looking into the demarcation report which is being objected by the present appellant-defendant. Mr.Gutpa during arguments invited the attention of this Court to written statement filed by the defendant. Admittedly, as has been discussed above, the written statement filed by appellant is very vague and no specific reply to any of the averment contained in the plaint has been given, rather it can be concluded after seeing the written statement that virtually the claim of the plaintiff has been admitted by the defendant-appellant. Admittedly, as has been discussed above, the written statement filed by appellant is very vague and no specific reply to any of the averment contained in the plaint has been given, rather it can be concluded after seeing the written statement that virtually the claim of the plaintiff has been admitted by the defendant-appellant. Mr.Gupta also invited the attention of this Court to the statement given by defendant, appearing as DW-1, as well as her affidavit Ex.DW-1./A, wherein she categorically stated that she has neither landed property nor any house in Garkhal Kummughat, thus, the aforesaid statement itself amounts to admission on the part of the defendant with regard to possession of the plaintiff on the suit land. Rather careful reading of statement given by this defence witness makes it more interesting, where she states that the land, on which as per version of the plaintiff, she has constructed a house, does not belong to her. She further states that the house has not been constructed by her rather the same has been constructed by one Smt.Swaran Lata Kapoor. Her aforesaid statement that the house constructed on the land being pointed out by the plaintiff is not her but of Smt.Swaran Lata Kapoor is sufficient enough to conclude that she has admitted that the house has been constructed on the land of the plaintiff because there is nothing in her statement, where she claimed herself to be in possession of the suit land either in capacity of tenant or owner. She only stated that house has been constructed by Swaran Lata on the land which she has purchased vide sale deed dated 2nd June, 1971. Though no sale deed, as has been referred by the defendant DW-1, has been placed on record. Conjoint reading of the written statement filed by defendant as well as her statement made in the Court makes it clear that this was not a boundary dispute, which could be settled by calling demarcation report as has been done in the present case. 21. Perusal of the record of the trial Court below depicts that parties to the present list have been litigating since the year 1998 i.e. for the last 18 years but till date actual dispute between the parties i.e. encroachment on the suit land by parties has not been resolved. 21. Perusal of the record of the trial Court below depicts that parties to the present list have been litigating since the year 1998 i.e. for the last 18 years but till date actual dispute between the parties i.e. encroachment on the suit land by parties has not been resolved. Even if at this stage contention of Mr.K.D. Sood is accepted that demarcation report could not be taken into consideration while passing impugned judgments is accepted and the judgments passed by the Courts below are quashed and set aside on this ground, actual dispute between the parties would still exist, meaning thereby, there would be multiplicity of litigation. Though it stands proved beyond doubt that demarcation report Ex.PW-3/B was not prepared in accordance with law which fact was rather acknowledged by the counsel representing the defendant but as has been discussed above, controversy at hand could be solved on the basis of pleadings available on the record without referring to the demarcation report. 22. As has been discussed and deliberated at length above that there is no specific denial to the suit filed by the plaintiff for possession, which admittedly was filed on the strength of the revenue entries, only requirement for the Court below was to look into the written statement specifically answering the averments contained in the plaint, but as has been noticed in the present case that written statement filed by the present defendant-appellant is totally vague and evasive rather its plain reading suggests admission of the claim of the plaintiff. Even the statement of DW-1, sole defendant, was enough for the Courts below to conclude that defendant-appellant has encroached upon the land, possession whereof is admittedly with the plaintiff as per revenue records. DW-1, instead of disputing status of the plaintiff, admitted in her statement that house situated on the land alleged to be owned and possessed by plaintiff is not constructed by her but by one Swaran Lata Kapoor and as such suit should be dismissed. Aforesaid statement coupled with the averments contained in the written statement was enough for the trial Court below to pass a decree for possession in favour of the plaintiff. However, in the present case both the Courts below have held the plaintiff entitled for possession of the suit land and as such no relief in this behalf can be granted by this Court. However, in the present case both the Courts below have held the plaintiff entitled for possession of the suit land and as such no relief in this behalf can be granted by this Court. Even perusal of para-12 of the judgment passed by the first appellate Court in the present case depicts that learned first appellate Court has taken into consideration oral as well as documentary evidence i.e. Jamabndi for the year 1993-94 Ex.PW-1/A of the suit land produced by plaintiff, to conclude that the plaintiff is recorded in the suit land as non-occupancy tenant. The aforesaid findings suggest that Courts below apart from relying upon the demarcation report also taken into consideration the documentary evidence made available on record by the plaintiff to suggest that he has been recorded in possession of the suit land is non-occupancy tenant. 23. At this stage, it would be apt to reproduce Section 99 of the CPC:- “99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: Provided that nothing in this section shall apply to non-joinder of a necessary party.” 24. Bare reading of Section 99 CPC makes it clear that no decree can be reversed or substantially varied and even no case can be remanded in appeal on account of mis-joinder of parties or cause of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or jurisdiction of the Court. Undisputedly, demarcation report, if any, is also a piece of evidence relied upon by the parties to lis in support of their respective claims. Sometime Courts itself for reaching just and fair conclusion order for demarcation and a report whereof is relied upon alongwith the other material available on record. Undisputedly, demarcation report, if any, is also a piece of evidence relied upon by the parties to lis in support of their respective claims. Sometime Courts itself for reaching just and fair conclusion order for demarcation and a report whereof is relied upon alongwith the other material available on record. All said and done, report of demarcation, if any, is also a piece of evidence which may be helpful in deciding the controversy at hand but it is always not necessary that in the absence of demarcation report actual dispute cannot be resolved, rather report, if any, is to be read with the other evidence available on record. In the present case also, as has been discussed above, given the nature of the suit vis-à-vis pleadings on record, demarcation report Ex.PW- 3/A is not such an important document without which case at hand cannot be decided. Rather, Courts below could decide the controversy at hand without referring to the demarcation report on the basis of other evidence which was sufficient to decide the same. 25. In the instant case also certainly there is error/irregularity as far as demarcation is concerned, as has been held above, but solely on that ground judgments passed by both the Courts below cannot be quashed and set aside, which otherwise appear to be decided on the merits of the case. 26. At the cost of repetition, it is again mentioned here that the parties in the present case have been litigating for more than 18 years and any order of remand, at this stage, that too, on the ground that demarcation was not carried out in accordance with law, will definitely cause multiplicities of litigation. Even during the pendency of the present case, it was brought to the notice of the Court that, after passing of the impugned judgments, Smt.Swaran Lata Kapoor daughter of the appellant has filed an independent suit against the present defendant qua the suit property. Hence, this Court is of the view that argument having been made by Mr.Neeraj Gupta that present controversy can be decided without looking into the demarcation report has significant force and deserves to be accepted in view of the detailed discussion made hereinabove. 27. Hence, this Court is of the view that argument having been made by Mr.Neeraj Gupta that present controversy can be decided without looking into the demarcation report has significant force and deserves to be accepted in view of the detailed discussion made hereinabove. 27. However, Mr.K.D. Sood, learned Senior Counsel, has argued, at this stage, that even on the merits, without looking into the demarcation report, defendant is not able to prove his case which could entitle him decree for possession in respect of the suit land. He specifically invited the attention of this Court to the statement given by DW-1 where it has come that her daughter, namely, Smt.Swaran Lata has constructed the house over the suit land in the year 1971 and, as such, inference can be drawn that the suit property is in possession of the appellant-defendant and hence plea of the plaintiff cannot be accepted. 28. However, as has been discussed hereinabove, the evidence led by both the parties nowhere suggests that in what capacity defendant owns/possess the suit property. Rather, DW-1 categorically stated that she does not possess any property in that area and house over the suit property has been constructed by her daughter, namely, Smt.Swarant Lata. But, admittedly, there is no evidence placed on record by the defendant to suggest that actually this property was ever purchased by Smt.Swaran Lata. Rather, there are no pleadings which suggest that defendant has acquired some title over the suit land with the passage of time that either in the shape of adverse possession or any other way. 29. Hence, this Court has no hesitation to conclude that the present controversy can be decided without looking into the demarcation report Ex.PW-3/B and, as such, plea raised by the learned Senior Counsel for the appellant that the judgments passed by both the Courts below deserves to be quashed and set aside solely on the ground that they have wrongly decided the case on the basis of demarcation report, deserves to be rejected. Having said so, I do not see any illegality and infirmity in the judgments passed by both the Courts below which appear to be based on correct appreciation of evidence available on record. Having said so, I do not see any illegality and infirmity in the judgments passed by both the Courts below which appear to be based on correct appreciation of evidence available on record. Though, present appellant-defendant has been successful in proving that the demarcation Ex.PW-3/B was not conducted in accordance with law and, as such, same cannot be relied upon as has been discussed in detail above, present controversy at hand could be decided without referring to the demarcation report as has been done on the basis of the pleadings available on record. Accordingly, this Court solely with a view to avoid the multiplication of the litigation undertook exercise to decide the present controversy without referring to the demarcation report on the basis of material available on record, which was self sufficient to decide the case at hand. Hence, present appeal fails and is dismissed, accordingly. 30. All interim orders are vacated. All the miscellaneous applications are disposed of.