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2022 DIGILAW 744 (HP)

Madhavi Mehra alias Urmila v. Kamla Devi

2022-11-25

SATYEN VAIDYA

body2022
JUDGMENT : SATYEN VAIDYA, J. 1. Heard. 2. By way of Regular Second Appeal, judgment and decree dated 28.02.2017, passed by learned District Judge, Kangra at Dharamshala, H.P. in Civil Appeal No. 35-D/XIII/2013, titled as Smt. Madhavi Mehra vs. Smt. Kamla Devi and Others, affirming judgment and decree dated 24.04.2013, passed by learned Civil Judge (Senior Division), Kangra at Dharamshala in Civil Suit No. 13 of 2006, has been sought to be assailed. 3. Parties hereinafter shall be referred to by the same status as they held before learned Trial Court. Appellant herein was plaintiff and respondents herein were defendants in the same sequence as impleaded in the instant appeal. 4. Brief facts necessary to be noticed for adjudication of the appeal are that plaintiff is co-owner of land, with Shri Kumud Handa and defendant, comprised in Khasra Nos. 1746 and 1747, measuring 1249-56 sq. mtrs. situated in Up-Mohal Gamroo, Mouza and Tehsil Dharamshala, District Kangra, H.P., which had come in their ownership by way of transfer from defendant No. 3. Defendants No. 1 and 2 are owners of Khasra Nos. 1745/1 and 1745/7, which abutts the abovesaid land of plaintiff, comprised in Khasra Nos. 1746 and 1747. Defendants No. 1 and 2 were also transferees of their respective pieces of land as mentioned above from defendant No. 3. 5. Plaintiff filed the suit on the premise that while getting the plots carved out in the land comprised in Khasra No. 1745, defendant No. 3 in collusion with revenue staff, had manipulated the records in such a manner that the area of Khasra No. 1745 was increased and land comprised in Khasra Nos. 1746 and 1747 was reduced. On such allegations, it was averred in the plaint that the defendants, under the garb of wrong revenue entries were trying to encroach upon the land comprised in Khasra Nos. 1746 and 1747. It was further submitted in the plaint that during demarcation proceedings conducted by Revenue Officer on the request of defendants, though her husband was present and had signed the proceedings, but he had not appended signatures voluntarily as he was not feeling well. 6. Defendants contested the allegations levelled by the plaintiff. Defendants No. 1 and 2 came up with clear defence that they were in possession of their respective plots of land sold to them by defendant No. 3. 6. Defendants contested the allegations levelled by the plaintiff. Defendants No. 1 and 2 came up with clear defence that they were in possession of their respective plots of land sold to them by defendant No. 3. There was no enhancement in the area of Khasra No. 1745 nor was there any reduction in the area of land comprised in Khasra Nos. 1746 and 1747. Defendant No. 1 had got the land demarcated and boundaries of the respective land of the plaintiff and defendants, were un-breached. 7. On the pleadings of the parties, learned Trial Court has framed the following issues: 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP 2. Whether the defendants interfered in the ownership and possession of the plaintiff over the suit land by way of raising construction, encroaching and chopping the trees, as alleged? OPP 3. In case the defendants succeed in raising construction over the suit land, whether the plaintiff is entitled for a decree of mandatory injunction mandating the defendants to restore the suit land to the original position, as alleged? OPP 4. Whether the suit is not legally and factually maintainable in the present form, as alleged? OPD 5. Whether the plaintiff has no cause of action and locus-standi to file the present suit? OPD 6. Whether the plaintiff has not approached the court with clean hands? OPD 7. Whether the suit is vague and based upon frivolous averments? OPD. 8. Whether the suit is time barred, as alleged? OPD 9. Whether the suit is bad for multi-fariousness and mis-joinder of cause of action? OPD 10. Whether the act and conduct of the plaintiff is bar to file the present suit? OPD 11. Whether the suit of the plaintiff is bad for non-joinder of necessary parties? OPD 12. Whether the plaintiff has no enforceable cause of action? OPD 13. Whether the suit of the plaintiff is not properly valued for the purposes of court fee and jurisdiction? OPD 14. Relief. 8. Issues No. 1 and 5 were partly decided in affirmative. Issues No. 2, 7 and 12 were also decided in affirmative, whereas rest of the issues were negated and as a result, the suit was dismissed. OPD 13. Whether the suit of the plaintiff is not properly valued for the purposes of court fee and jurisdiction? OPD 14. Relief. 8. Issues No. 1 and 5 were partly decided in affirmative. Issues No. 2, 7 and 12 were also decided in affirmative, whereas rest of the issues were negated and as a result, the suit was dismissed. The appeal filed by the plaintiff under Section 96 of the Code of Civil Procedure was also dismissed by learned District Judge, Kangra at Dharamshala, H.P. on 28.02.2017, hence, the present appeal. 9. Learned Trial Court on appreciation of evidence held that plaintiff had failed to prove the allegations made in the plaint. She had not been able to substantiate that there was any manipulation in the revenue records or the area of lands proved in Khasra Nos. 1746 and 1747, was reduced. Learned Trial Court also held that plaintiff never applied for demarcation of land and without ascertaining the limits of boundaries of respective land of the parties, her apprehension was unfounded. Learned Trial Court also rejected allegation regarding defendant No. 3 having sold more area than his shares in Khasra No. 1745. 10. Learned Lower Appellate Court also affirmed the findings returned by learned Trial Court on re-appreciation of evidence. It has been additionally found that the husband of the plaintiff was present at the time of demarcation of land conducted at the instance of defendant No. 1. He had consented to such demarcation being correct and hence, he cannot be allowed to resile from such admission without any justifiable reason. 11. Plaintiff examined herself as PW-1. Her husband also appeared as a witness as PW-4. In addition, one Sh. Gurdial Singh and Sh. Sahib Ram, were also examined. Whereas, Sh. Gurdial Singh tried to support the case of the plaintiff by stating that defendants had trespassed into the land of the plaintiff by carrying out excavation, PW-3, Sh. Sahib Ram proved tatima Ext.PW3/A, which he had prepared on the basis of Latha. From the evidence lead by plaintiff, it is clear that except the self serving statements of the plaintiff and her husband, there was no corroboration to their allegations. Statement of Sh. Gurdial Singh was in general terms. He was not owner of any adjoining land as stated by him in cross-examination. From the evidence lead by plaintiff, it is clear that except the self serving statements of the plaintiff and her husband, there was no corroboration to their allegations. Statement of Sh. Gurdial Singh was in general terms. He was not owner of any adjoining land as stated by him in cross-examination. He was also not aware about the respective area of land owned by the parties. He did not know in which khasra number fencing of plaintiff was disturbed. Similarly, tatima Ext.PW3/A was stated to have been prepared by PW-3 Sh. Sahib Ram on 24.09.2002. He had prepared tatima on the basis of Latha. The suit was filed in the year 2006. Defendant No. 1 had purchased the land comprised in Khasra No. 1741 on 13.12.2005 and defendant No. 2 had purchased his plot of land almost during the same period. The ‘Latha’ gets amended with the change in the size of holding. It is not disputed that the area of land comprised in Khasra No. 1745 was sub-divided into different khasra numbers after carving out of plots therefrom. Thus, tatima Ext.PW3/A was of no help to the case of the plaintiff. 12. Noticeably, plaintiff never applied for demarcation or got her land demarcated. On the other hand, defendant No. 1 got the land demarcated and husband of the plaintiff had admitted such demarcation to be correct. 13. Both the Courts below have based their conclusions on the basis of findings arrived at after due appreciation of evidence. Such findings are borne from the records and cannot be said to be illegal or perverse. 14. In view of above discussion, no question of law much less substantial question of law arises in the instant appeal. In result, the same fails. Judgment and decree dated 28.02.2017, passed by learned District Judge, Kangra at Dharamshala, H.P. in Civil Appeal No. 35-D/XIII/2013, titled as Smt. Madhavi Mehra vs. Smt. Kamla Devi and Others, affirming judgment and decree dated 24.04.2013, passed by learned Civil Judge (Senior Division), Kangra at Dharamshala in Civil Suit No. 13 of 2006, is affirmed. 15. The appeal is, accordingly, disposed of, so also the pending miscellaneous application, if any.