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2017 DIGILAW 1333 (HP)

Mehar Singh v. Sudesh Kumari

2017-12-05

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The plaintiff's suit for possession of suit khasra numbers was decreed by the learned trial Court also it pronounced a decree for demolition of the super structure raised thereon. The judgment and decree pronounced by the learned trial Court, stood, carried in appeal before the learned First Appellate Court, whereupon, the latter Court affirmed the judgment and decree recorded by the learned trial Court, upon, the aforesaid Civil Suit No. 46 of 2000. Being aggrieved therefrom, the defendant/appellant herein, has instituted the instant appeal before this Court, for his concerting to beget its reversal. 2. Briefly stated the facts of the case are that the plaintiff claimed decree for permanent prohibitory injunction restraining the defendant from encroaching upon the suit land or raising any construction as well as to change the nature of the suit land. It has been averred that the suit land was owned and possessed by the plaintiff. However, during the pendency of the suit some construction was raised regarding which prayer had been made that the decree for possession be passed in case any encroachment or construction is raised on the suit land by the defendant. The plaintiff claimed that the plaintiff was in peaceful possession of the suit land, but the defendant started interference and threatened to raise construction over the part of the suit land for which material was collected and arrangement for labourers to dig the land was also made. It is also averred that the defendant had forcibly taken possession of suit land and illegally raised construction of shed during the pendency of the suit, despite stay orders having been passed by the Court thereby decree for possession after demolition of the structure had also been prayed. 3. The defendant contested the suit and filed written statement, wherein he has taken preliminary objections qua maintainability, cause of action, estoppel, locus standi. On merits, it is claimed that the defendant has become owner by way of adverse possession. The defendant had asserted that the plaintiff is not owner nor was in possession of the suit land. It has been alleged that the defendant and Tarlok Chand purchased three kanals and 10 marlas of land from one Smt. Sarla Devi vide registered sale deed No.266 of 14.8.1972, out of khasra No.209. Mutation was also attested and the defendant came into its possession. It has been alleged that the defendant and Tarlok Chand purchased three kanals and 10 marlas of land from one Smt. Sarla Devi vide registered sale deed No.266 of 14.8.1972, out of khasra No.209. Mutation was also attested and the defendant came into its possession. Thereafter demarcation was also taken by the defendants. Since, the year 1972, the defendant never parted with possession of suit land and the possession was to the knowledge of Sarla Devi as well as that of plaintiff. It has been averred that the husband of plaintiff is serving in the Revenue Department, who got the land purchased and got the land of defendant included in the suit land by getting the Karukans changed and when came to the notice of defendant, he applied for the correction of karukans by moving an application which was dismissed. However, the matter is now pending before the Settlement Collector. It has also been averred that the husband of the plaintiff was knowing that karukans had been got fictitiously and thereby he managed the sale deed in the name of his wife. However, despite that possession was never taken by her. The plaintiff after instituting the suit tried to take forcible possession of the suit land, whereby, the defendant completed the construction work in the year 1982-83 and the plaintiff be restrained from interfering over the suit land which is in possession of defendant by filing counter claim. It had been prayed that the decree be passed declaring the defendant to be owner in possession of the suit land and restraining the plaintiff from interfering over the peaceful possession of defendant over the suit land. 4. The plaintiff/respondent herein contested the counter claim filed by the defendant/appellant herein, by filing written statement/replication thereto, whereby it had been alleged that the defendant never came into possession of suit land but the possession was taken during the pendency of the suit. Thereby decree for possession had been sought. The claim of the defendant as asserted in the counter claim and written statement had been stated to be wrong. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for injunction, as prayed for? OPP. 2. Whether the suit is not maintainable in the present form, as alleged? OPD. 3. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for injunction, as prayed for? OPP. 2. Whether the suit is not maintainable in the present form, as alleged? OPD. 3. Whether the plaintiff has no cause of action, as alleged? OPD 4. Whether the plaintiff is estopped by her act, conduct and acquiescence to file the present suit, as alleged? OPD. 5. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD. 6. Whether the defendant has become owner by way of adverse possession, as alleged? OPD. 7. Whether no valid title has been transferred to the plaintiff by Smt. Sarla Devi, as alleged? OPD. 8. Whether the defendant is in owner in possession of land, as alleged? OPD/Counter Claimant. 9. Whether the defendant is entitled for injunction as prayed for? OPD/Counter Claimant. 9(a). Whether the plaintiff is entitled for decree for possession of suit land by way of demolition, as alleged? OPP 10. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the defendant/appellant before the learned First Appellate Court, the latter 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 wherein he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 17.07.2006, 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 the Courts below have wrongly relied upon the demarcation report Ex.PW1/A which was not otherwise admissible in evidence, and as such, there has been misreading of evidence oral as well as documentary by the Courts of law? Substantial question of Law No.1. 8. Both the learned Courts below placed implicit reliance upon demarcation report comprised in Ex.PW2/A, proven by PW-2. Substantial question of Law No.1. 8. Both the learned Courts below placed implicit reliance upon demarcation report comprised in Ex.PW2/A, proven by PW-2. Upon theirs placing implicit reliance thereon, they proceeded to record concurrent affirmative findings qua the issue appertaining to the defendant/appellant making unauthorised construction upon the suit kahsra numbers, whereupon, they proceeded to decree the plaintiff's suit for possession. 9. Since, the substantial question of law appertains to the validity of demarcation report, borne in Ex.PW2/A, hence, this Court would proceed to determine the validities, of imputation of reliance thereon. 10. A perusal of the testification rendered by PW-2, who prepared and proved Ex.PW2/A, reveals that at the time of his visiting the suit khasra numbers for his holding demarcation, of the contiguous estates of the contesting parties, the defendant/appellant not recording his presence before him. The evident absence, at the relevant time, of the defendant, at the relevant site also his obviously omitting to record his presence thereat before PW-2, hence naturally disabled him to purvey his consent to PW-2 qua the fixed recognizable points, wherefrom, PW-2, was enjoined to hold a valid demarcation, of the adjoining contiguous estates of the parties at contest. The presence of both the contestants, at the relevant site also before the Revenue Officer concerned, is imperative for hence ensuring that the demarcating officer, does not, hold tainted ex-parte demarcation proceedings, for determining the boundaries of the adjoining respective estates, of the parties at contest. The conjoint presence of any the contesting parties, before the demarcating officer, also precludes the possibility of the latter proceeding to hold a partisan and tainted, demarcation, of the contiguous respective estates of the parties at contest. The conjoint presence of any the contesting parties, before the demarcating officer, also precludes the possibility of the latter proceeding to hold a partisan and tainted, demarcation, of the contiguous respective estates of the parties at contest. Since, the defendant, did not, evidently record his presence at the relevant site also obviously before the demarcating officer, at the stage contemporaneous to the latter holding demarcation of the contiguous respective estates of the parties at contest, thereupon, it is apt to conclude of the report, furnished by the demarcating Officer, borne in Ex.PW2/A, (a) being ridden with a stain of partisanship and its preparation being goaded by an oblique motive, to favour the plaintiff, (b) the demarcating officer, conducting demarcation of the suit khasra numbers, without his prior thereto ascertaining, from the relevant musabi, AND in presence of and with the consent of the defendant/appellant, the fixed recognizable points, wherefrom, he was enjoined to hold a valid demarcation, of the suit khasra numbers, (c) thereupon, his report borne in Ex.PW2/A is ridden with a vice of invalidity. 11. Even if assumingly, the presence of the defendant/appellant, at the apposite stage, was dispensable yet the demarcating officer was enjoined to in his report make a clear voicing that, he held the relevant demarcation, in consonance with the mandate of Chapter 10.3 of the Himachal Pradesh Land Records Manual, provisions whereof stand extracted hereinafter:- “10.3 Papers with application for demarcation: An interest person shall submit an application for demarcation in duplicate. The following documents shall be filed with the original application:- 1. A copy of latest jamabandi. 2. A copy of previous settlement map. 3. A copy of map prepared during consolidation, if consolidation operations have been conducted in the estate. 4. A copy of tatima shajra if the demarcation of sub-divided khasra number is involved. 5. Process fee as prescribed under the rules.” whereby, he is enjoined to thereat, carry, a copy of the previous settlement map or the Aks musabi. 3. A copy of map prepared during consolidation, if consolidation operations have been conducted in the estate. 4. A copy of tatima shajra if the demarcation of sub-divided khasra number is involved. 5. Process fee as prescribed under the rules.” whereby, he is enjoined to thereat, carry, a copy of the previous settlement map or the Aks musabi. However, neither in his report borne in Ex.PW2/A nor in his testification, there occurs any articulation of his, at the relevant time, holding a copy of the previous settlement map/aks musabi, wherefrom, alone he was enabled to ascertain the fixed recognizable points, for his thereafter being also enabled to borrow them, therefrom, whereafter, he was facilitated to relay them onto the contiguous suit khasra numbers, for his hence holding a valid demarcation thereof besides his preparing in consonance therewith a valid demarcation report. Moreover, a reading of his report also a perusal of his testification, also reiteratedly, does not, unveil that he, at the relevant time, carried the copy of the previous settlement map/aks musabi, thereupon, it is apt to conclude that he did not ascertain therefrom the fixed recognizable points, nor therefrom he made borrowings thereof, nor also he hence proceeded to relay them onto the relevant suit khasra numbers. In aftermath, the demarcation, of the contiguous respective estates of the contesting parties, is to be construed to be not held in accordance with the relevant cannons. Corollary whereof, is that the recitals borne, in Ex.PW2/A, were unamenable for imputation of sanctity thereon as inaptly done by both the learned Courts below. Accordingly, the aforesaid substantial question of law is answered in favour of the appellant and against the respondent. 12. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court are not 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 excluded germane and apposite material from consideration. 13. In view of the above discussion, the instant appeal is allowed and the impugned judgments and decrees rendered by both the learned Courts below are set aside. Consequently, the suit of the plaintiff is dismissed. No costs. Decree sheet be prepared accordingly. All pending applications also stand disposed of. Records be sent back.