Ramesh Chander vs Nand Kishore and Others

Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree, dated 28.09.2012, passed by the learned District Judge, Una, Himachal Pradesh, in Civil Appeal No. 79-XIII of 2009. ''Key facts'' necessary for the adjudication of this Regular Second Appeal, are that the respondent-plaintiff, namely Nand Kishore (hereinafter referred to as ''the plaintiff'' for the sake of convenience) has filed a suit against the appellant-defendant and proforma respondents No. 2 to 5 (hereinafter referred to as ''the defendants'' for the sake of convenience) for possession by removal of superstructure of the premises denoted by letters ABC & DEF as depicted in the attached site plan, being part and parcel of land measuring 3 Kanal 9 Marlas, comprised in Khewat No. 4 min, Khatoni No. 7 min, bearing Khasra Nos. 930, 932, as entered in Missal Hakiat Isteymal for the year 1996-97 and also for permanent prohibitory injunction restraining the defendants from causing any interference or raising any kind of construction or forcibly dispossessing the plaintiff from the premises denoted by letters JGHI, as shown in the attached site plan, being part and parcel of Khasra No. 923, situated in Mauja Lamlehra, Tehsil and District Una, H.P. and in alternative also suit for possession of second disputed portion, if the defendants succeed in dispossessing the plaintiff from this portion during the pendency of the suit. According to the plaint, the premises denoted by letters ABC and DEF comprised in Khasra Nos. 930 and 932 and land denoted by letters JGHI comprised in Khasra No. 923, are owned and possessed by the plaintiff alongwith other co-sharers, namely Madan Lal, Sheela Devi, Yogesh Chander, Rajesh Chander, Upinder Kumar, Jatinder Kumar, Ravindera Devi and Parveen Kumari. The defendants in the second week of May, 1999, without any right, forcibly encroached upon portions ABC and DEF and raised construction thereon by raising room and boundary wall. According to the plaintiff, the possession of the defendants over portions ABC and DEF is illegal, unauthorized and that of a trespasser. The defendants were threatening to forcibly take possession of portion JGHI comprised in Khasra No. 923. The defendants were requested to desist from their illegal acts and also to hand over the vacant possession of portions ABC and DEF after removal of superstructure, however, they refused to do so.

The suit was contested by the defendants. They have disputed the correctness of the site plan filed by the plaintiff. They have denied that portions ABC and DEF are part of Khasra Nos. 930 and 932, i.e. first part of the suit land and that the plaintiff alongwith other co-sharers are owners in possession of the suit land. According to them, at the time of raising construction by defendant No. 1, i.e. Ramesh Chander, in the month of March, 1987, the portion ABCEA forming part of Khasra No. 929, was left vacant and the said portion as shown in site plan filed by defendants, is part of Khasra No. 929, which is owned and possessed by them. The defendants have also denied that site JGHI is part and parcel of Khasra No. 923. According to them, the same is part and parcel of Khasra No. 927, which is owned and possessed by them. According to them, under the garb of ex parte injunction the plaintiff has forcibly occupied the portion ABCEA. The abadi of defendant No. 1 is in existence on the spot since 1987. They have also taken the plea of adverse possession.

The Local Commissioner was appointed by the learned trial Court. The report was submitted by the Local Commissioner on 18.01.2006. The objections to the report of Local Commissioner were filed by the defendants on 18.03.2006.

The learned Civil Judge (Junior Division), Court No. IV, Una, District Una, H.P. has framed the issues on 05.09.2003 and 24.11.2008. Learned trial Court decreed the suit on 29.09.2009, whereby the defendants were directed to hand over the vacant possession of portion ABC, AEL, DEFK and GHIJ, as shown in tatima in demarcation report Ex. DW2/A to the plaintiff.

Only one of the defendants'', namely Ramesh Chander, has filed an appeal before the learned District Judge, Una, Himachal Pradesh and the other defendants were arrayed as proforma defendants. The learned District Judge, Una, Himachal Pradesh has dismissed the appeal on 28.09.2012. Hence this Regular Second Appeal.

Mr. Y.P. Sood, learned counsel for the appellant, on the basis of substantial questions of law framed, has vehemently argued that the demarcation report Ex. DW2/A, is not carried out on the basis of instructions issued by the Financial Commissioner and this Court. He also contended that the demarcation has been carried out on the basis of wrong karu kans. He lastly contended that both the Courts below have misread the oral as well as documentary evidence.

Mr. Neeraj Gupta, learned counsel for respondent No. 1 has supported the judgments and decrees passed by both the Courts below.

I have heard the learned counsel for the parties and gone through the pleadings and records carefully.

According to the copy of Misal Hakiat Isteymal for the year 1996-97 Ex. P2, pertaining to Khasra Nos. 930 and 932, the plaintiff is shown as co-sharer. Similarly, as per the certified copy of Misal Hakiat for the year 1996-97 Ex. P3, the plaintiff is also appearing as co-sharer in Khasra No. 923. The names of the defendants do not find mention in these revenue entries. The plaintiff has proved site plan Ex. P1 on the basis of statement of PW-2, Ganesh Chand, draftsman. The defendants have proved their site plan Ex. D1. Ex. D1 was put to PW-2, Ganesh Chand Sharma, since the draftsman, who has prepared this document, was dead.

The trial Court has appointed the Local Commissioner. He has submitted the report Ex. DW2/A on 18.01.2006. The objections were filed by the defendants to the report of the Local Commissioner. The same were rejected by the learned trial Court while deciding the Civil Suit. The report has been proved by DW-2, Shri Daulat Singh.

Mr. Y.P. Sood, learned counsel for the appellant, has vehemently argued that the report submitted by the Local Commissioner, is not in accordance with the instructions issued by the Financial Commissioner. According to the demarcation report, the defendant Ramesh Chand has encroached upon portions ABC of Khasra No. 930, DEF of Khasra No. 932 and JGHI of Khasra No. 923. These portions have been reflected as per tatima prepared during the demarcation. The defendant has not pleaded that there was boundary dispute. The parties were apprised of the spot inspection by DW-2, Shri Daulat Singh. A specific question was put to the parties whether they were satisfied with the report of the Local Commissioner or not. No party has raised objections at that time. Even no written objections were filed by the defendants. According to the report, the fixed points were ascertained at the time of carrying out the demarcation report.

Mr. Y.P. Sood, learned counsel for the appellant, has also argued that the report is on the basis of the consolidation proceedings and according to the statement of DW-3, Ravinder Singh, Patwari, the karu kans of the land in village Lamlehra, were wrong. DW-3, Ravinder Singh, has not testified that the karu kans of the suit land of defendants were wrong/ incorrect. He has only stated that due to wrong karu kans in the Isteymal, there could be boundary disputes. The consolidation proceedings were carried out in the year 1996-97. He has also stated that the record of consolidation is final record. It has not come on record that the record of the settlement has superseded the record of consolidation.

The defendants have not led any evidence to prove the plea of adverse possession. They have not proved in what manner they have dispossessed the plaintiff from the suit land. Rather, the defendants have taken mutually destructive plea.

The statement of DW-4, Clerk from HPSEB, Mehatpur about the electricity meter will not prove the adverse possession of the defendants over the disputed land. The statement of DW-2, Ramesh Chand that he has raised construction over the disputed portion in the month of March, 1987, has not been corroborated by any documentary or oral evidence. The mason, namely Tara Chand, who is stated to have raised construction, has not been produced.

The plaintiff on the basis of oral as well as documentary evidence, more particularly, Ex. DW2/A, has proved that defendant Ramesh Chand has encroached upon portions ABC of Khasra No. 930, DEF of Khasra No. 932 and JGHI of Khasra No. 923 as per the tatima prepared during demarcation. The Courts below have correctly appreciated the oral as well as documentary evidence led by the parties.

No other point was urged.

Accordingly, in view of the observations and analysis made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs.

CMP No. 135 of 2013

In view of the judgment passed in the main appeal, there is no merit in this application and the same is dismissed.