Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 2190 (HP)

Sita Ram v. Jeet Ram Alias Meet Ram

2018-12-11

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The defendants are the appellants, who after having lost in both the learned Courts below, have filed the instant appeal. 2. Briefly stated the facts of the case are that the subject matter of the suit is land bearing Khasra Nos. 562, 1732/863, 1734/863, comprised in Khewat/Khatauni Nos. 148 min/232 min and land bearing Khasra No. 1731/863 and Khewat /Khatauni Nos. 149/233 situated in Village manpura, Pargana Dharampur, Tehsil Nalagarh, District Solan, H.P. It was pleaded that the plaintiff is absolute owner in possession of land except measuring 0-2 biswas qua which the plaintiff is also cosharer. It was averred that the defendants strangers to the suit land and having adjoining land, they threatened to encroach upon the suit land. It was averred that the plaintiff requested the defendants to get the demarcation and not to encroach upon the suit land but during the pendency of the suit, defendants encroached upon the suit land. Hence the plaintiff filed the suit for permanent prohibitory injunction as well as for decree of possession of land encroached by the defendants after demolishing the super structure. 3. The suit was contested by the defendants by filing written statement wherein description of the suit land was stated as matter on record. It was averred that the defendants land is adjoining to the suit land and they have raised construction over their own land. It was denied that the defendants were trying to interfere in the suit land and denied that they encroached upon the part of the suit land during the pendency of the suit. However, a plea was taken that defendants are in possession of the land alleged to be encroached since March 1962 and the construction was raised before filing of the present suit. The demarcation, if any conducted is wrong and illegal and not in accordance with demarcation rules and not binding upon the defendants. Simultaneously, a plea was taken that in case the plaintiff legally proves any encroachment over the land of the plaintiff then the defendants have become owners of the said land by way of adverse possession and no cause of action accrued in favour of the plaintiff as the suit of the plaintiff was not maintainable. 4. From the pleadings of the parties, the learned trial Court vide its order dated 24.1.2001 and 29.11.2001, framed the following issues: 1. 4. From the pleadings of the parties, the learned trial Court vide its order dated 24.1.2001 and 29.11.2001, framed the following issues: 1. Whether the plaintiff is owner in possession of the suit land? OPP 2. Whether the defendants are interfering with the suit land without any right, title or interest? OPP 3. Whether the plaintiff has no locus standi to file the present suit? OPD 3(a) Whether the defendants have encroached upon the part of the suit land during the pendency of the suit? OPP 3(b) Whether the defendants have become owner by way of adverse possession on the part of the suit land? OPD 4. Relief. 5. After recording the evidence and evaluating the same, the learned trial Court decreed the suit filed by the plaintiff and the appeal filed against the said judgment and decree was dismissed by the learned first Appellate Court, constraining the defendants to file the instant appeal. 6. On 2.11.2006 the appeal was admitted on the following substantial question of law: "Whether without getting the demarcation report Ex.DW-3/A, which was given on his own application for demarcation, the respondent-plaintiff could not have been heard to say that the said report was incorrect or could he be permitted to seek appointment of Local Commissioner so long as that report was there?" 7. I have heard learned counsel for the parties and have gone through the grounds of the appeal and material placed on record. 8. Ex.Dw-3/A is the copy of demarcation report prepared by DW-3 Suresh Kumar Bhardwaj, the then Tehsildar, Nalagarh which shows that he had taken western side of Khasra No. 928 as 15 Karams, whereas the western side was in fact 11 Karams in Ext. DW-3/C copy of Akas Musavi. However, on the other hand, in case the demarcation report Ex.PW-4/A alongwith Akas Musavi Ex. PW-4/B and Naksha Tafawat Ex.PW-4/C is perused, it is evident that the land comprised in Khasra Nos. 1732/868 and 1734/863, Kita 2 measuring 2-18 bighas was recorded in the ownership of the plaintiff/respondent, whereas the land comprised in Khasra No. 928 measuring 0-17 bighas was recorded in the ownership of Sita Ram defendant No.1 and others. There was dispute between the parties on the central line of land comprised in Khasra Nos.1732/863/2 and Khasra No. 928 at Karukans 6-6 upon which a pucca house was existing. There was dispute between the parties on the central line of land comprised in Khasra Nos.1732/863/2 and Khasra No. 928 at Karukans 6-6 upon which a pucca house was existing. The Local Commissioner fixed point ''A'' at the junction of Khasra Nos. 860, 961, 862, 858 and 959. Point ''B'' at the junction of Khasra Nos. 860, 863, 925, 926 and 1732/863/2 and 1934/863 and Point ''C'' at the junction of khasra Nos. 926, 927, 928 and 855. The Batars were drawn from Points A to B, Points B to C and Points A to C and distances were found correct. From point A, 10 Karams middle line of Khasra Nos. 855 and 862, 8 Karams middle line of Khasra Nos. 928 and 1732/863/1 was measured and same was also checked up after drawing ''Batar'' from Points A to C and was correct. The old foundation was ascertained at the spot. 15-3-6 of middle line of Khasra Nos. 928, 927, 926 was then demarcated and the same was checked from Point B, which was correct. From Point B, 6 Karams of middle line of Khasra Nos. 928 and 1732/863/2 was demarcated and same was checked after drawing ''Batar'' from Point C and from Point B. Point E was fixed after taking 6 Karams and Khasra Nos. 1732/863/1 and 1732/863/2 and 1834/863 were fixed. The land measuring 0-0-16 biswansis was found in possession of Smt. Kaushalya Devi, defendant No.4. 9. It was found by the learned first Appellate Court that the report of demarcation had been carried out from Musavi after taking three permanent points. The distances were measured and verified after drawing ''Batar''. Not only this, the demarcation so conducted was accepted by the defendants. Once that be so, then obviously, no infirmity can be found with the demarcation report and the same as held by the learned first Appellate Court is conclusive to hold that the defendants had encroached upon the land measuring 0-0-16 Biswansis of the plaintiff forming part of the suit land. 10. The learned first Appellate Court has given clear, cogent and convincing reasons in not accepting the demarcation report Ex.DW-3/A which undoubtedly was given on the basis of the application submitted by the plaintiff. 10. The learned first Appellate Court has given clear, cogent and convincing reasons in not accepting the demarcation report Ex.DW-3/A which undoubtedly was given on the basis of the application submitted by the plaintiff. After all, the respondent/plaintiff cannot be bogged down to illegal report only on the basis that the same was given at his request on the basis of the application so submitted by him. 11. Having said so, substantial question of law is answered against the appellants/defendants. At this stage, I notice that the appellants No.1 and 3 have died during the pendency of the appeal and the question of abatement and further question whether the appeal had partly abated, was left open. However, since I have decided the appeal on merits, this question has been rendered academic and need not be gone into. 12. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.