Liyakat Ali and Others vs Phool Singh

Deepak Gupta, J.

1 This Regular Second Appeal is directed against the judgment and decree dated 14.1.2002 passed by the learned Additional District Judge, Sirmaur at Nahan, whereby he allowed the appeal of the Defendant and set aside the judgment and decree dated 9.10.2001 passed by the learned Trial Court.

2 The Appellants (hereinafter referred to as the Plaintiffs) filed a suit that they are owners of land comprised in khasra No. 90 measuring 12-9 bighas, situate in mauza Puruwala Kanshipur, Tehsil Paonta Sahib, District Sirmaur, HP. According to the Plaintiffs, the Defendant had encroached upon 16 biswas of land out of this khasra number which was denoted by khasra No. 90/1 in the tatima. According to the Plaintiffs, he had got the land demarcated and on demarcation it was found that 16 biswas of land was in possession of the Defendant. Hence, the suit for possession of 16 biswas of land.

The stand of the Defendant was that he had not encroached upon any portion of land of the Plaintiffs in question and in case any portion of khasra No. 90 found to be in his possession, then he may be declared to be owner of the same by way of adverse possession. The learned Trial Court decreed the suit only on the ground that the Plaintiffs are owners of khasra No. 90. The Defendant filed an appeal before the learned Appellate Court and the learned Appellate Court held that the Plaintiffs are no doubt owner of the property comprised in khasra No. 90, but had failed to prove on record by leading any cogent evidence the fact that the Defendant has in any manner encroached upon any portion of khasra No. 90. According to him, no document had been placed on record to show what was the land encroached upon.

This appeal was admitted on the following substantial question of law on 18.4.2002:

Whether the lower appellate Court had arrived at illegal conclusions by ignoring the Tatima of the suit land as a piece of evidence?

The Plaintiff examined himself as a witness. At the outset, it may be submitted that there is no dispute with regard to ownership of the Plaintiffs over the land in question. They definitely are owners of the same. The learned Trial Court was also right in holding that the plea of adverse possession set-up by the Defendant cannot be accepted. The only question is, whether the Plaintiffs had been able to identify the land which is allegedly encroached upon by the Defendant. The Plaintiff in his statement did not say anything about the specific identity of the land. After his statement was recorded, counsel tendered in evidence Ext. P1 and P2. Ext. P1 is the copy of the jamabandi which is per-se admissible and could have been tendered in evidence. Ext. P2 is the photocopy of an order. The demarcation report and the tatima, though filed have not been proved on record. They were neither tendered, nor proved by any witness. Therefore, the learned Lower Appellate Court was absolutely right in holding that identity, if any, of the encroached land has not been established. No question of law, much less a substantial question of law, arises in this appeal, which is accordingly dismissed. No costs.