Jai Singh vs Radha Devi and Another

Kuldip Singh, J.—The Defendant No. 1 has come in appeal against judgment, decree dated 1.6.2000 passed by learned District Judge, Shimla in Civil Appeal No. 54-S/13 of 1999 reversing judgment, decree dated 11.5.1999 passed by learned sub Judge 1st Class, Court No. 1, Shimla in Case No. 66/1 of 1995/91.

The facts, in brief, are that Respondent No. 1 had filed a suit for permanent prohibitory injunction against the Appellant and Respondent No. 2 on the grounds that she is exclusive owner in possession of the land comprised in Khata Khatauni No. 18/24, Kita 2 measuring 15 biswas situated in Mauja Naldehra, Pargana Kogi, Tehsil and District Shimla. The Appellant and Respondent No. 2 have no right, title or interest in the suit land, however, taking the advantage of weakness of Respondent No. 1, the Appellant and Respondent No. 2 are threatening to forcibly dispossess the Respondent No. 1 from a portion of the suit land by raising construction thereon. The Appellant Respondent No. 2 have started digging the suit land forcibly. It has been alleged that a portion of the suit land was encroached during the pendency of the suit and therefore, a prayer for mandatory injunction was also added by way of amendment in the plaint.

The suit was contested by Appellant and Respondent No. 2 by filing the written statement in which they have submitted that they have no concern with the suit land but they denied that they are threatening to dispossess the Respondent No. 1 or they have encroached any portion of the suit land during the pendency of the suit.

On the pleadings of the parties, the following issues were framed:

Whether the Plaintiff is entitled to the relief of injunction as prayed for ? OPP

1-A. Whether during the pendency of the suit, Defendants have encroached upon Plaintiff''s land ? If so, to what extent? OPP

Whether the Plaintiff has got no cause of action to file this suit? OPD

Relief.

The issues No. 1, 1-A and 2 were answered in negative and the suit was dismissed on 11.5.1999 by the learned Sub Judge. The learned District Judge allowed the appeal on 1.6.2000, set-aside the judgment, decree dated 11.5.1999 and decreed the suit of Respondent No. 1, Appellant was directed to vacate the encroachment of the suit land by demolishing the structure and he was restrained from interfering in the suit land. In these circumstances, the Appellant has filed the second appeal against the judgment, decree dated 1.6.2000 which has been admitted on the following substantial questions of law:

Whether the Local Commissioner''s report Ex.PW-4/A could be relied upon especially under the circumstances when the same has been proved to be totally contrary to the instruction issued by the H.P. Financial Commissioner and also contrary to the records of the present case?

Whether as the Local Commissioner has failed to comply with the instructions of the H.P. Financial Commissioner as contained in Chapter X of the H.P. Land Records Manual and has further failed to fix three permanent (bandobasti) points for the purpose of carrying out the demarcation and has also further failed to demarcate the land of the Appellant and the land of theadjacent owners, the alleged demarcation report is nullity in the eyes of law and cannot be relied upon?

I have heard learned Counsel for the parties and have also gone through the record. It has been submitted on behalf of the Appellant that the learned lower Appellate Court has erred in relying Local Commissioner report Ex.PW-4/A in decreeing the suit of the Respondent No. 1. The demarcation has not been conducted in accordance with the instructions of the Financial Commissioner and, therefore, report Ex.PW-4/A cannot be made base for decreeing the suit of Respondent No. 1. The land of Appellant was not demarcated and in absence of the demarcation of the land of the Appellant it cannot be said that Appellant had encroached the land of Respondent No. 1. The learned Counsel for the Respondent No. 1 has supported the impugned judgment, decree. He has submitted that report Ex.PW-4/A has been made on the basis of demarcation carried out by the Local Commissioner in accordance with law. He has submitted that in fact, it is not a case of boundary dispute inasmuch as the lands of Respondent No. 1 and Appellant are not adjoining. In any case encroachment made by Appellant on the land of the Respondent has been proved vide report Ex.PW-4/A which has been carried out in accordance with law. The Local Commissioner appeared as PW-4 and supported the report and has also elaborated how he carried out the demarcation on the spot. The Appellant has not appeared in the witness box, therefore, adverse inference is to be drawn against him.

The aforesaid substantial questions of law are inter- connected, therefore, both of them are being taken up for consideration collectively. The substantial questions of law are with respect to Local Commissioner report Ex.PW-4/A. The trial Court had appointed PW-4 as Local Commissioner and vide letter 13.1.1995 the Local Commissioner was directed to visit the spot after giving notice to the parties or their counsel and to see whether any encroachment has been done by the Respondents in Mauja Naldehra, Pargana Kogi, Khata Khatauni No. 18/24, khasra Nos. 120/12/1 and 123/14, Kitta 2. In the written statement filed by the Appellant he has not given the khasra Nos. of his land. The precise reference to the Local Commissioner was to find out the encroachment on Khasra Nos. 120/12/1 and 123/14. In these circumstances, the grievance of the Appellant that Local Commissioner has not demarcated his land at the time of demarcation is without any merit inasmuch as the Appellant himself has not given khasra Nos. of his land and the trial Court has also directed the Local Commissioner to find out encroachment on the land of the Respondent No. 1.

The next grievance of the learned Counsel for the Appellant is that the Local Commissioner has not fixed three pucca points in the report and for that reason the report Ex.PW-4/A cannot be relied and made a base for decreeing the suit of Respondent No. 1. The Local Commissioner in the report Ex.PW-4/A has made reference of fixing of pucca points. PW-4 in his statement has proved report Ex.PW-4/A. In cross-examination, he has denied the suggestion that he had not fixed any pucca points. The Appellant had filed objections dated 23.2.1995 to the report of Local Commissioner wherein he has taken the objection that there are no pucca points or Burjis as has been mentioned by the Local Commissioner in his report. In other words, the Appellant has also admitted in his objection that Local Commissioner has referred pucca points in his report but the objection of the Appellant is that there are no such pucca points on the spot. The Local Commissioner has referred to the fixing of puccas points in the report. The Appellant himself has not appeared in the witness box to contradict the report of the Local Commissioner that there are no such pucca points on the spot. The statement of Appellant was recorded by the Local Commissioner at the time of demarcation and in his statement the Appellant has stated that he does not agree with the report as it is a case of three boundaries. The boundary of Village Durgapur has not been taken into consideration. The Appellant has nowhere stated in his statement before the Local Commissioner that he does not agree with the demarcation report as three pucca points were not fixed on the spot before starting the demarcation. Therefore, the objection of Appellant that demarcation report Ex.PW-4/A cannot be believed as three pucca points were not fixed before starting the demarcation, is rejected. The Appellant has failed to make out a case how the demarcation Ex.PW-4/A cannot be relied in the facts and circumstances of the case. The learned District Judge has rightly appreciated the material on record and more particularly report Ex.PW-4/A. There is no perversity in the impugned judgment, decree nor it is a case where inadmissible evidence has been relied by the learned District Judge for decreeing the suit of the Respondent No. 1. The substantial questions of law No. 1 and 2 are decided against the Appellant.

No other point was urged.

The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs.