Smt. Manjeet Kaur, Shri Ujagar Singh, Smt. Harbans Kaur and Shri Om Parkash vs Shri Gita Ram, Shri Gajjan Singh through their general power of attorney Shri Gita Ram and Shri Chanan Singh

Sanjay Karol, J.—This is the defendants'' regular second appeal filed u/s 100 of the Code of Civil Procedure. Civil Suit No. 291/1 of 1995, titled Gita Ram and another v. Manjeet Kaur and ors. stands decreed in terms of judgment dated 24.12.1999 passed by Sub Judge, Nalagarh, District Solan, to the following effect:- In view of the above, the suit of the plaintiff is decreed for recovery of possession Khasra No. 308 comprised in Khewat/Khatauni No. 16/32 as entered in the copy of Jamabandi for the year 1989-90 by directing the defendants to remove the wall situated there on with costs. Decree sheet be prepared accordingly. File after needful be consigned to record room.

Findings of fact, judgment and decree stands affirmed by Additional District Judge, Solan in terms of judgment and decree dated 15.11.2000 passed in Civil Appeal No. 13-NL/13 of 2000 titled as Manjeet Kaur and others v. Shri Gita Ram and others.

Plaintiffs filed a suit for possession with respect to the land encroached by the defendants, which was resisted by the defendants inter alia on the ground that they have become owners thereof, by virtue of adverse possession.

On the basis of pleadings, Trial Court framed the following issues:-

Whether the plaintiffs are entitled for the decree of possession of the suit land? OPP

Whether the suit is not maintainable? OPD

Whether the suit is bad for non-joinder of necessary parties? OPD

Whether the suit is barred by limitation? OPD

Whether the suit is liable to be stayed or consolidated as alleged? OPD

Relief.

Based on the evidence led by the parties, Trial Court decided the issues in favour of the plaintiffs and against the defendants. Suit was decreed and plaintiff was held entitled to possession of the suit land. Findings of fact were rendered on the basis of demarcation report Ex.PW1/A prepared by the revenue authorities much prior to the filing of the suit. The demarcation proceedings took place on 31.12.1992 whereas suit was instituted on 31.3.1995.

Defendants referred to and relied upon demarcation report Ex.DW4/A. However, Courts below have concurrently held that the same pertains to land other than the suit land. Thus, I see no reason to differ.

The plaint describes the suit property unambiguously. In fact, there cannot be any doubt or confusion about the same considering the plea of adverse possession taken by the defendants themselves. As such, judgment and decree cannot be faulted only on the ground that decree for possession could not have been awarded in the absence of any site plan indicating exactly and precisely the extent of encroachment carried out by the defendants. There is yet another reason to arrive at such conclusion. Plaintiffs have referred to the demarcation report Ex.PW1/A which clearly elucidates the extent of encroachment carried out by the defendants over the suit land.

Demarcation report Ex.PW1/A is assailed on the ground that the same is contrary to the instructions issued by the Financial Commissioner. No doubt, demarcation report Ex.PW1/A records that defendant was present at the spot on 31st December, 1992 when the demarcation proceedings were conducted and that she was not satisfied about the same, but then noticeably, defendant did not assail such demarcation proceedings, in accordance with law. She kept on sleeping for more than two and half years. Even in the written statement, as is so noticed, there is no reference about the illegality or irregularity of such demarcation proceedings conducted on 31st December, 1992.

It is urged by Mr. Raman Sethi, learned counsel for the appellants/defendants that Sh. Krishan Kumar (PW-1) has admitted that notice for carrying out demarcation was issued for 25th December, 1992, whereas proceedings actually took place on 31.12.1992. In this regard, I find that the witness has himself clarified that subsequent notice was issued for the proceedings which were to be conducted on 31.12.1992. Be that as it may be, it cannot be said that defendants in any manner, were prejudiced for non issuance of such notice as they were present on the spot at the time when demarcation proceedings were conducted.

It is also urged that the provisions of Chapter-10 and more particularly Clauses IX and XIII of the H.P. Land Records Manual, were not complied with in letter and spirit by the Demarcation Officer. Ex.PW1/A does not record the fact that defendants had raised any objection. All that is stated is that they were not satisfied. It is not the case of the defendants that they had either raised any objections or filed any objections in writing during the course of such proceedings. Hence, at such a belated stage, it would not be open for the defendants to urge that demarcation report Ex.PW1/A be not considered for any infraction of provisions, if any, of the Land Records Manual. This view is taken more so for the reason that defendants have themselves taken the defence of adverse possession. Mr. Raman Sethi, learned counsel has also referred to and relied upon the decision rendered by this Court in Ram Pal v. Nirmla Devi, 2009 (1) SLJ (H.P.) 178. I am afraid, ratio laid down therein is not applicable to the instant case. In Ram Pal (supra) the Court was dealing with a case where demarcation proceedings were conducted on the directions of the Court which is not the case in hand. Only where boundary dispute is there Court can appoint a local commissioner, but here there is an admission of encroachment.

Mr. Raman Sethi, learned counsel for the appellants/defendants fairly states that substantial question No. 3 does not survive in the present appeal.

Substantial question of law stands answered accordingly.

No ground for interference is called for and the appeal is rejected.

Liberty granted to the appellants to move an application for discharge of surety bond. With the aforesaid observations, the present appeal is disposed of, so also the pending application(s), if any. In view of the decision in the main appeal, the cross objections are not pressed. Disposed of as such.