Roop Chand vs Man Dass

Chander Bhusan Barowalia, J.

The present Regular Second Appeal is maintained by the appellant, who was defendant before the learned trial Court (hereinafter to be called as

“defendantâ€), laying challenge to the judgment and decree, dated 19.6.2017, passed by the learned District Judge, Kullu, District Kullu, H.P, in

Civil Appeal No. 17 of 2017, whereby the judgment and decree, dated 1.3.2017, passed by the learned Civil Judge (Junior Division), Manali, District

Kullu, in Civil Suit No.104 of 2012, was affirmed, wherein suit of the plaintiff was decreed.

Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that respondent-plaintiff (hereinafter to be

called as “the plaintiffâ€) maintained a suit for permanent prohibitory and mandatory injunction against the defendant alleging therein that the

plaintiff is owner-in-possession of land measuring 0-00-52 hectares, comprised in Khasra No.3847/633/1, Khata/Khatauni No.67 min/90 min, situated

in Muhal and Phati Baragran, Kothi Baragarh, Tehsil Manali, District Kullu, H.P; (hereinafter referred to as ‘suit land’) while the defendant

alongwith other co-sharers, is owner-in-possession of the land measuring 0-00-36 hectares, comprised in Khasra Nos.633/2 and 633/3 in the same

Muhal and Phati. It was alleged that mutation of partition qua suit land was attested and sanctioned on 24.9.2005 and since then, the plaintiff is using

the suit land, as a path. Further, it was alleged that the defendant intended to encroach upon the suit land by raising two pillars thereon.

Defendant resisted and contested the suit by filing written statement and raising preliminary objections qua maintainability, locus standi and cause of

action. On merits, it is submitted that the defendant has not denied the ownership and possession of the plaintiff with respect to the suit land. However,

existence of the path, at the spot, has been denied by disputing the correctness of revenue entries, which have been changed during settlement by the

plaintiff in connivance with the revenue officials. Raising of any construction over the suit land has also been denied by the defendant.

From the pleadings of parties, the learned trial Court framed following issues :

“1. Whether the plaintiff is owner-in-possession of the suit land, as alleged ?OPP.

Whether the defendant tried to interfere in the suit land on 18.11.2012, as alleged ? OPP.

Whether the plaintiff is entitled to decree for permanent prohibitory injunction, as alleged ?OPP.

Whether the suit of the plaintiff is not maintainable, as alleged ? OPD.

Whether the plaintiff has got no cause of action, as alleged ? OPD.

Relief.â€​

The learned trial Court after deciding Issues No.1 to 3 in affirmative, Issues No.4 & 5 in negative, decreed the suit.

Feeling aggrieved thereby the defendant maintained first appeal before the learned District Judge, Kullu, District Kullu, assailing the findings of

learned Trial Court being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower

Appellate Court affirmed the findings of the learned Court below. Now, the appellant has maintained the present Regular Second Appeal.

Learned counsel appearing on behalf of the appellant has argued that PW-1, Jalphu Ram, has conducted demarcation without any prior notice to the

defendant and that demarcation cannot be taken into consideration and the findings so recorded by the learned Courts below, after taking the

demarcation are perverse. He has further argued that the pucca points were not taken by PW-1, Jalphu Ram and so, in this way, the demarcation

could not have been taken into consideration by the learned Courts below.

On the other hand, learned counsel for the respondent has argued that the present case is not a boundary dispute, which was raised by the appellant

before the learned Courts below and the witness of defendant i.e. DW-2, Sunil Kumar, has admitted in his cross-examination that the land in dispute

was used as path and so, the findings recorded by the learned Courts below are in accordance with law.

In rebuttal, learned counsel appearing on behalf of the appellant has argued that in the written statement, it was specifically alleged that construction

by the defendant was completed long ago and there was no evidence with regard to the raising of construction.

To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail.

In order to prove its case, PW-1, Jalphu Ram, while appearing in the witness box has specifically stated that though he has not issued any notice to

the defendant, but the defendant was present at the time of demarcation. This fact has come on record, but the defendant has not stated anything

contrary to this, which shows that he was not present. So, in these circumstances, it cannot be said that the defendant was not present at the time of

demarcation. As far as the arguments of learned counsel appearing on behalf of the defendant is concerned, this Court finds that PW-1, Jalphu Ram,

has specifically stated that he has demarcated the land after taking pucca points, as he is an expert, his statement when compared with that the

statement of PW-2, Man Dass, who has stated that there was a path on the suit land with regard to the demarcation and path stands established. The

plaintiff has also placed on record, copy of mutation Ex.PW2/D, which revealed that the suit land alongwith other land of the defendant, co-sharer

including plaintiff, was partitioned by them. Defendant has taken a plea that he had maintained an appeal, but perusal of Ex.DX, reveals that the said

appeal has been dismissed by the Settlement Collector. Even, further appeal, filed by the defendant, before Divisional Commissioner, has also been

dismissed. Defendant (DW-1) has stated that there is no existence of path at the spot. He has admittedly stated that the land was partitioned by the

parties in a family partition. No doubt, he has stated that appeal has been filed, but the said appeal has been dismissed by the Settlement Collector. He

admitted the order Ex.DX, passed by the Settlement Collector. DW-2, Sunil Kumar, has stated that mutation No.42 was attested and sanctioned after

family partition, which is Ex.PW2/D and he has identified the signatures of both plaintiff and defendant. Admittedly, he has stated the land, which was

allotted to his father, and now, he is in possession of the same. Further, he has admittedly stated that the plaintiff is also in cultivated possession of land

allotted to him. Admittedly, he has stated that he and plaintiff, both are using the path in question. PW-1, has also annexed spot tatima alongwith the

report of demarcation, wherein two pits of pillars measuring 8 x 8 feet have been shown over the suit land. Admittedly, DW-2 has stated that

defendant has raised two pillars over the suit land.

From the above, it is clear that the judgments and decrees passed by the learned Courts below are as per law and needs no interference. There is

no substantial question of law, which requires to be answered in the present appeal.

In view of the above discussion, the appeal of the appellant is without merit, deserves dismissal and is accordingly dismissed. However, in the

peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending application (s), if any, shall also stands disposed of.