Pala Ram and Another vs Nirmal Singh and Others

L.N. Mittal, J.—This is second appeal by defendants No. 1 and 2 who have been unsuccessful in both the courts below.

Suit was filed by Amar Singh (since deceased and represented by respondents No. 1 to 6 as his legal representatives) and Lal Singh against appellants and respondents No. 8 and 9. The plaintiffs alleged that they are owners in possession of the suit land measuring 10 marlas comprised of killa No. 30/2/5 situated in village Gudhi, Tehsil Thanesar, District Kurukshetra. The defendants without having any right, title or interest in the suit land threatened to encroach upon the same by raising construction forcibly and illegally. Plaintiffs, therefore, filed suit for permanent injunction restraining the defendants from encroaching upon or usurping any part of the suit land and for raising any construction thereon and dispossessing the plaintiffs forcibly and illegally or in any other manner.

Defendants, inter alia, pleaded that kucha house of appellant-defendant No. 1 Pala Ram was constructed on vacant land in June, 1979 and defendant No. 1 after demolishing kucha construction raised pucca construction in the year 1984 and the said house is depicted by letters ABCDEFG in site plan Ex. D1 annexed with the written statement. Defendant No. 1 is residing in the said house and plaintiffs are not in possession thereof.

Learned Additional Civil Judge (Senior Division), Kurukshetra vide judgment and decree dated 25.11.2006 decreed the plaintiffs'' suit. First appeal preferred by defendants No. 1 and 2 has been dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 4.10.2008. Feeling aggrieved, the instant second appeal has been preferred by defendant Nos. 1 and 2.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the appellants vehemently contended that vide demarcation report Annexure P/1, defendants No. 1 and 2 were found in possession of the suit land and their houses exist in part thereof and the remaining vacant land was also in their possession and therefore, no injunction could be granted in favour of the plaintiffs when they are not in possession of the suit land.

I have carefully considered the aforesaid contention which apparently appears to be very forceful but in fact the contention is devoid of any substance. The trial court vide order dated 24.10.2005 appointed Field Kanungo, Thanesar as Local Commissioner to demarcate khasra No. 30/2/5 and to submit demarcation report. He was also directed to prepare site plan of the suit land. Pursuant to the said order, demarcation report Annexure P/1 was submitted by the Local Commissioner. Plaintiffs preferred objections against the said report. The courts below have found force in the said objections and therefore, set aside the report of the Local Commissioner. As noticed herein before, Local Commissioner was to simply demarcate the suit land and prepare its site plan. However, Local Commissioner took it upon himself to adjudicate upon the controversy between the parties and to decide the same in favour of the defendants. Local Commissioner could not have done so. Local Commissioner could not report about the alleged possession of defendants No. 1 and 2 over the suit land.

In addition to the aforesaid, the report of the Local Commissioner is patently incorrect. He has reported that separate houses of defendants No. 1 and 2 exist in the suit land. However, this is not even the pleaded version of defendants themselves. In the written statement house of defendant No. 1 only was pleaded. Existence of house of defendant No. 2 was not even remotely referred to in the written statement. Thus, it appears that the Local Commissioner was smarter than the defendants themselves. It is also not explained as to how the Local Commissioner could report that defendants No. 1 and 2 are also in possession of the vacant land.

Local Commissioner also did not fix three pucca points for making demarcation which is essential and imperative for correct demarcation as also provided by Standing Order No. 28 of the Financial Commissioner. Thus, report of the Local Commissioner has been rightly discarded. Learned Counsel for the appellants relied on a judgment of this Court in the case of Malu Ram v. Baje Singh and Ors. 1991 (2) Recent Revenue Reports 261. In that case, however, matter related to temporary injunction and not to final disposal of the suit. Aforesaid judgment has no bearing on the facts of the instant case.

It may be noticed that report of the Local Commissioner in the instant case is even contradictory to the site plan Ex. D1 produced by the defendants. Whole claim of the defendants is based on location of house of defendant No. 1 as depicted in site plan Ex. D1. However, report of the Local Commissioner does not support the said version of the defendants.

From the aforesaid, it becomes apparent that the report of the Local Commissioner has been rightly discarded by the courts below.

As per revenue records produced in evidence, the plaintiffs are consistently recorded to be owners in possession of the suit land. There is presumption of correctness attached to entries in jamabandi. The said presumption is further strengthened by the fact that the revenue entries are consistently in favour of the plaintiffs.

It is also worth noticing that the defendants did not even plead that the alleged house of defendant No. 1 is in killa No. 30/2/5 which is claimed by the plaintiffs. The defendants also did not plead that they are in possession of any part of land of killa No. 30/2/5 i.e. any part of the suit land.

In addition to the aforesaid, perusal of copy of Musavi Ex. P11 reveals that killa Nos. 30/2/1, 30/2/3, 30/2/4, 30/2/5 and 30/2/6 lie from north to south adjoining each other. There is passage towards east of the said killa numbers and there is also passage on the north of khasra No. 30/2/2 which is north most killa out of the said killa number. Perusal of site plan Ex. D1 reveals that alleged house of defendant No. 1 exists at the juncture of northern and eastern passages. If plan Ex. P11 and site plan Ex. D1 are considered cumulatively, it would reveal that alleged house of defendant No. 1 could be in killa No. 30/2/2 but could not at all be in killa No. 30/2/5 which is far away from the northern passage whereas alleged house of defendant No. 1 is adjacent to the northern passage. Thus, it becomes apparent from the site plans that alleged house of defendant No. 1 could not be in killa No. 30/2/5 which is claimed by the plaintiffs.

From the aforesaid discussion, it emerges that the plaintiffs are owners in possession of the suit land. Both the courts below have also arrived at concurrent finding to this effect on appreciation of evidence. The said finding is fully justified by the evidence on record and cannot be said to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed.