Prem Singh vs Sanjay Kumar and Another

Sanjay Karol, J.—This is the defendant Sh. Prem Singh''s (appellant herein) regular second appeal, filed u/s 100 of the Code of Civil Procedure, 1908.

Judgment and decree dated 31.5.2010 passed by Civil Judge (Junior Division), Barsar, Distt. Hamirpur in Civil Suit No. 111 of 2006 stands affirmed by the Addl. District Judge, Fast Track Court, Hamirpur in Civil Appeal No. 40 of 2010. Courts below have concurrently held the plaintiff (respondent No.1 herein) to be owner of entire suit land comprising Khasra Nos. 198, 210, 212, 213 measuring 0-06-20 hectares situated in Tika Agwin, Tappa Dhatwal, Tehsil Barsar, Distt. Hamirpur (hereinafter referred to as the ''suit land''). According to the defendants, they are owners in possession of adjoining land comprising Khasra Nos. 197 & 211. There cannot be any dispute with regard to the same.

According to the plaintiff, defendants, some times in the month of September 2006, started raising construction over the land owned and possessed by him. He was also dispossessed therefrom. As such, he filed a suit for possession of the entire suit land. Defendants resisted the suit, inter alia admitting that they are in fact in possession of the entire suit land. Their possession is uninterrupted, continuous and since long.

On the basis of the pleadings, trial Court framed the following issues.

Whether the plaintiff is entitled for a decree of permanent prohibitory injunction as prayed for?....OPP.

Whether the plaintiff is entitled for a decree of possession by way of demolition in alternative as prayed for?....OPP.

Whether the suit of the plaintiff is not maintainable in the present form as alleged ?....OPD.

Whether the plaintiff is estopped from filing the present suit by his act and conduct as alleged?....OPD.

Whether the plaintiff has no cause of action to file the present suit as alleged?..OPD.

Whether the plaintiff has no locus standi to file the present suit as alleged?..OPD.

Whether the defendants are entitled for special costs u/s 35-A C.P.C. as alleged?..OPD.

Relief.

Based on the evidence (oral or documentary) led by the parties as also report of the Local Commissioner (Ext.PW 3/A), the trial Court partly decreed the plaintiff''s suit as under:-

In view of my findings on all the issues hereinabove, this suit is decreed partly with costs, for the possession of the land comprised in Khasra Nos. 210, 212, 213. Plaintiff is further held entitled to recover the compensation from the defendants as to the market value of the land comprised in Khasra No.198, over which defendants have already raised construction. Demarcation report Ext.PW.3/A along with statements Ext. PW.3/B to PW.3/D and copy of Aks Musabi Ext. DX shall form part of the decree. Decree sheet be prepared accordingly. The after due completion be consigned to Record Room.

Aggrieved thereof, both the plaintiffs and defendants filed appeal/cross objections which stands dismissed by the lower Appellate Court in terms of the impugned judgment.

Admittedly, plaintiff has not filed any appeal assailing the impugned judgment.

It is urged by Mr. Rahul Mahajan, learned counsel for the appellant that the Courts below erred by relying upon the demarcation report Ext.PW.3/A for the reason that no points were fixed by the Local Commissioner before carrying out demarcation on the spot. In my considered view, the contention is misconceived and merits rejection. Reproduction of findings of fact, with regard to the same, as arrived at by the lower Appellate Court would be beneficial and is as under:-

Respondent No.1 had also adduced on record copy of record of rights for the year 2004-05 in respect of the suit land which shows respondent No.1 along with other co-sharers to be owner in possession of it. Khasra N0.198 has been classified as "Gair-mumkin Abadi", while Khasra No.210 as "Kharaitar" and Khasra Nos.212 and 213 as "Barani Abbal". Adjoining land of appellant Khasra Nos.197, 211, as per Jamabandi for the year 2004-05, Ext.DY, has been classified as "Gair-mumkin Abadi" and "Barani Abbal" respectively. Therefore, in order to detect the interference or possession of the appellant over the suit land the only way out was the proper demarcation of the suit land. Be it noted here that appellant had not claimed any right or title in respect of the suit land nor had put forth the plea of adverse possession in respect o the suit land. Therefore, admittedly, the appellant is stranger to the suit land.

The learned lower Court, on application moved, had appointed PW.3 Jai Chand Chaudhary, Thesildar, Barsar as Local Commissioer. His report and statements of the witnesses recorded, are Ext.PW.3/A and PW.3/B. Per his deposition, after proper demarcation, the appellant was found in possession of the suit land as mentioned in the report. It is his deposition that the settlement had already been closed in the are and the record was finalized. He had detailed that he was ordered to demarcate the suit land. It is his deposition that he had taken the house of respondent No.1 as permanent point. It was verified and measured from Khsara Nos. 193, 194 and 196. The another permanent point fixed was from the extremity of the road in Khasra No.194 and then it was measured and matched with Khasra Nos. 197 and 194. This was the second permanent point fixed. From another direction, the permanent point was taken from Khasra Nos. 197 and 194. Meaning thereby, before carrying out the demarcation, the permanent points were fixed. True it is that it is his admission that three permanent points for the purpose of making triangle, were not taken within the radius of 200 meters and it was volunteered by him that points were not found disturbed. Therefore, there was no necessity to make triangle. His report Ext.PW.3/A detailed the procedure followed by him in demarcating the suit land. After measurement, he had come to the conclusion that on Khasra No.198, measuring 0-00-42 hectares classified as "Giar-Mumkin Abadi" belongs to respondent, but found in possession of the appellant; Khasra N0.210, measuring 0-02-70 hectares classified as "Kharaitar", Khasra Nos.212, 213, classified as "Barani Abbal" measuring 0-03-08 hectares belongs to the respondent, but found in possession of the appellant. These facts were verified on the spot per demarcation. Per statement of respondent Sanjay Kumar Ext.PW.3/B, measurement was done after location of permanent points and the demarcation was given. Appellant Prem Singh also confirmed through his statement Ext.PW.3/C that demarcation was done on the spot, but he was not satisfied as he is in possession from the time of its allotment by the Government. Statement of Sunil Kumar, Up-Pradhan, Gram Panchayat Balh Bihal, Ext.PW.3/D was also recorded which shows that in his presence, permanent points were located and measurement was done and parties were apprised the boundaries of their land.

(Emphasis supplied)

That these findings are erroneous, not borne out from the record or perverse could not be pointed out. Thus, it is evident that the procedure was duly adhered to and adopted by the Local Commissioner while carrying out the demarcation on the spot.

Noticeably, defendants have failed to show their right to remain in the land owned by the plaintiff. It is not their case that plaintiff had handed-over the land to them voluntarily. It is also not their case that they/their predecessors-in-interest were in possession of the same since time immemorial, or that they have perfected their title by way of adverse possession.

It is sought to be urged that the suit land in fact comprises of Khasra Nos.197 and 211, which is owned by the appellants, but however, even this contention merits rejection. The lower Appellate Court has rightly come to the conclusion that appellant has failed to show the extent of the land in which he was allegedly put into possession by the State when the land was allotted to him. In any event, he cannot be in possession of excess land than allotted to him. He has unauthorisedly constructed his house over the land belonging to the plaintiff.

From the record, it cannot be said that the Courts below have erred in correctly appreciating the material on record, interpreting or applying the provisions of law or findings rendered by the trial Court are grossly perverse warranting interference by this Court. Consequently, the present appeal merits rejection. No question of law much less substantial question of law arises for consideration in the present appeal and the same is accordingly dismissed.