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2021 DIGILAW 693 (HP)

Sunder Singh Deceased Through His Legal Representatives v. Mohan Lal Benal, son of Late sh. Roop Chand

2021-09-10

SURESHWAR THAKUR

body2021
JUDGMENT : 1. The plaintiff/respondent herein instituted Civil Suit No. 51/1 of 2013 before the learned Civil Judge, Court No.1, Solan, District Solan, H.P. Therein the plaintiff claimed the making of a decree of permanent prohibitory injunction, and, he also claimed therein, the, making of a decree of monetary damages, vis-à-vis, him. The learned trial Court through a decision recorded thereons, on 17.7.2018, in the operative part of its verdict, granted the hereinafter extracted relief(s):- “in view of my findings and discussions on the aforesaid issues, in particular my findings on issue No.1 & 2, the suit of the plaintiff is partly decreed with costs to the effect that plaintiff is held entitled to the relief of damages to the tune of rs.2,79,910/- (two lakh seventy nine thousand and nine hundred and ten rupees) alongwith interest @ 6% per anum from date of order of this court till realization of entire amount jointly from defendants. Further, defendants is hereby restrained from causing any kind of interference in any manner over land measuring 1-01 bighas comprised in khasra No. 233/153 khata/khatauni No. 6/6 min, situated at Mauja Baggar Tehsil and Distt. Solan, HP, either personally or through family members agents and representatives etc. except in accordance with law. A decree sheet be drawn accordingly. The file, after its due completion, be consigned to the record room.” 2. The aggrieved defendants/appellants herein instituted there-against Civil Appeal No. 30-S/13 of 2018, before the learned Additional District Judge-1, Solan, District Solan, H.P. Upon the afore Civil Appeal, the learned first Appellate Court through its decision made on 23.9.2019, made a verdict of dismissal, and, obviously affirmed and maintained, the, verdict (supra) as became pronounced by the learned trial Court. 3. The aggrieved defendants reared there-against the instant appeal before this Court. However, for the reasons to be assigned hereinafter, there are no questions of law, much less any substantial question of law, involved in the instant RSA, therefore, this Court is constrained, to, dismiss the instant appeal at the pre-admission stage. 4. The crux of the entire lis engaging the contesting litigants, is rested upon the validity of Ex. PW-7/B, wherewith becomes appended copy of Musabi Ex. PW-7/C, and wherein, the encroachment(s) as made by the defendants, upon, the suit land, rather become narrated. 5. 4. The crux of the entire lis engaging the contesting litigants, is rested upon the validity of Ex. PW-7/B, wherewith becomes appended copy of Musabi Ex. PW-7/C, and wherein, the encroachment(s) as made by the defendants, upon, the suit land, rather become narrated. 5. The learned counsel for the defendants/appellants herein, has contended with much vigor, that the dependence(s) as made on Exhibit (supra), is invalid, as there is no clinching evidence adduced on record, rather suggestive that the demarcating officer concerned, in his proceeding to undertake measurements of the suit land concerned alongwith adjoining thereto lands, his not breaching (a) the relevant mandate, as, comprised in his proceeding to undertake the apposite measurements, only with his prior thereto, taking the consent of the contesting litigants, vis-à-vis, the three fixed points wherefrom the relevant measurements were enjoined to be carried (b) demarcation report being invalid as it has not received any confirmation thereto by the Assistant Collector 1st Grade. 6. The plaintiff in proving Ex. PW-7/B, had caused the stepping into the witness box of PW-7 Sh. Satya Parkash, who authored the Exhibit (supra). Though in his examination-in-chief he has proved Ex. PW-7/B. Moreover, he therein also proved the factum, that he carried demarcation of the suit land in consonance with the mandate carried in the HP Land Records Manual. He also testified that upon receipt of application of 11.2.2013, he demarcated the suit land, and, prepared report Ex. PW-7/B enclosing therewith the copy of Musabi Ex. PW-7/C, copy of Jamabandi Ex. PW-7/D, statement of police official Ex. PW-7/E statement of Mohan Lal Ex. PW-7/F, joint statement of Devender, Vijay, Rameshwar, Ramesh Chand and Raghuvir Ex. PW-7/G, statement of Surender Singh, sunder Singh and Karam Singh Ex PW-7/H. However, in his cross-examination he has acquiesced to a suggestion, that the afore demarcation is required to be approved by the Assistant Collector 1st Grade or by the Assistant Collector 2nd Grade. However, he has feigned ignorance whether the Assistant Collector 1st Grade has confirmed his demarcation report borne in PW-7/B. Moreover, he has also admitted in his cross-examination, that he has not mentioned in his report (supra), that prior to his holding demarcation his ascertaining the fixed points. Further more, he has admitted in his cross-examination, that he has omitted to mention in his report (supra), about the Karams of the measurement chain. Further more, he has admitted in his cross-examination, that he has omitted to mention in his report (supra), about the Karams of the measurement chain. In addition he has admitted that in the Patwar Khana concerned, there are two measurement chains. 7. However, per-se upon the afore made admission(s) by the author of Ex. PW-7/B, the latter cannot be validated, as the invalidating effects, if any, of the afore made admission(s) by PW-7, in his cross-examination, rather is to be tested on anvil of a thorough perusal being made to Ex. PW-7/B hence by this Court. 8. A thorough perusal of Ex. PW-7/B, reveals that the demarcating Officer had, after his ensuring the participation of the contesting litigants at the relevant time, proceeded to fix the presettlement fixed points, existing at the relevant sites, and, whereto the contesting litigants purveyed their consent. Moreover, he has echoed therein that his thereafter proceeded to adopt the Triangular method, of his carrying out, the relevant demarcation. Therefore, the afore made echoing borne in Ex. PW-7/B, are completely suggestive, that the demarcating Officer, has not breached, any of the relevant canons appertaining to a valid demarcation being conducted of the site(s) concerned. Since the afore made echoings in Ex. PW-7/B, do constitute, an estoppel against PW-7, to, during his cross-examination, make any oral deposition rather in detraction or in variation therefrom. Significantly, since the mandate enshrined in sections 91 and 92 of the Indian Evidence Act, bars the receipt of oral evidence rather for nullifying the effect, if any, of the proven recitals carried in validly proven documents concerned. Therefore, effects, if any, of the oral depositions (supra) as made by PW-7 in his cross-examination, rather in detraction to the proven echoings carried in Ex. PW-7/B, wherein rather the completest compliances are narrated hence to be meted by the demarcating Officer, vis-à-vis, the mandated apposite cannons appertaining to the conducting of a valid demarcation, at the site concerned. Consequently this Court does not deem it fit to merely, upon, oral depositions (supra) as made by PW-7 in his cross-examination, to hence proceed to nullify Ex. PW-7/B. 9. Even though, the Demarcating Officer in his cross-examination, admitted that he has not mentioned the length of measurement chains, and, has also admitted that two measurement chains are existing at the Patwar Khana concerned. PW-7/B. 9. Even though, the Demarcating Officer in his cross-examination, admitted that he has not mentioned the length of measurement chains, and, has also admitted that two measurement chains are existing at the Patwar Khana concerned. However, for want of evidence, suggestive that the Karams hence existing in the measurement chains, as used by him, were completely different from the karams existing in the measurement chains existing in the Patwar Khana concerned. Therefore for want of afore evidence, the afore made admission in the cross-examination of PW-7, and, appertaining to two measurement chains existing in the Patwar Khana concerned, and, also his failing to scribe in his report about the dimensions of the karams of the measurement chains rather used by him for the relevant purpose, cannot belie the factum of his proven validly prepared demarcation report carried in PW-7/B. 10. The further reason, for accepting the demarcation report is comprised in the factum of DW-2 (Satya Parkash Sharma) in his cross-examination accepting the echoings borne in report of 11.2.2013. 11. Though the DW-2 relied upon an earlier to Ex. PW-7/B, demarcation report(s) embodied in Ex. DW-2/A to DW-2/B. However, any reliance upon the earlier made demarcations, would not enfeeble the effect, if any, of PW-7/B as the demarcating officer, who has conducted the latter demarcation, has reiteratedly ensured the makings of statement of all litigants concerned vis-a-vis fixed points, and, also he ensured their satisfaction about the valid preparation of the demarcation report, through his ensuring theirs making theirs signatured statements, whereons, the valid signatures of all concerned become borne. Moreover, also he failed to place on record, the statement of the plaintiff rather revealing his accepting the fixed points, wherefrom his earlier demarcation was made besides also his failing to ensure the participation therein(s) of the plaintiff through his placing on record, the summons, as became issued upon him, whereupon, an inference becomes aroused, that the earlier demarcation, rather breaching the principle of audialteram partem, and, hence it becoming invalid. 12. Though, the learned counsel for the aggrieved defendants, has contended with much vigor before this Court, that Ex.PW-7/B was required to be confirmed by the Assistant Collector 1st Grade. However, when the learned trial Court, had permitted the conducting of a rigorous cross-examination, upon, the author of exhibit (supra), whereas, the afore process is not mandatorily required to be undergone before the Collector concerned. However, when the learned trial Court, had permitted the conducting of a rigorous cross-examination, upon, the author of exhibit (supra), whereas, the afore process is not mandatorily required to be undergone before the Collector concerned. Thereupon, any confirmation by the collector vis-à-vis, PW-7/B becomes irrelevant. Moreover, the verdict of the Civil Court, upon, the validity of demarcation reports, rather assumes predominance, vis-à-vis, any confirmation if any thereof, hence by the Collector concerned. 13. Since the grant of monetary damages to the plaintiff in the concurrently recoded verdicts of both the Courts below, is squarely anvilled upon the demarcation report borne in Ex. PW-7/B besides also upon the technical report borne in Ex.PW-2/A, thereupon, I find no merit in the appeal, and, the same is accordingly dismissed. The verdict(s) concurrently recorded by both the Courts below are maintained and affirmed. All pending applications stand disposed of accordingly.