State of Himachal Pradesh vs Kamla Devi

Sanjay Karol, Judge

This is defendants'' Regular Second Appeal filed u/s 100 of the Code of Civil Procedure. Plaintiff''s Civil Suit No. 3/1 of 1998, instituted on 7th January, 1998, titled as Kamla Devi versus State of Himachal Pradesh and another, stands decreed by Sub Judge 1st Class, Arki, District Solan, Himachal Pradesh, in terms of judgment and decree dated 30th May, 2001. Findings of fact, judgment and decree stand affirmed by the District Judge, Solan, Himachal Pradesh, in Civil Appeal No. 21-S/13 of 2001, titled as State of Himachal Pradesh and another versus Kamla Devi, filed by the defendants. Thus, the present appeal arises out of concurrent findings of fact. Appeal was admitted on the following substantial question of law:

Whether both the Courts below have mis-read and misappreciated the evidence on record more specifically demarcation report and Tatima Ext. PW-1/B and Ext.PW-1/C to decree the suit of the respondent-plaintiff?

Plaintiff Kamla Devi filed a Civil Suit alleging that the defendants had encroached upon 0.1 biswa of land belonging to her and raised construction of a gang hut over the same. Suit land is part of Khasra No. 70/1 situated in Tehsil Arki, District Solan, Himachal Pradesh.

Plaintiff prayed for the following reliefs:

I. It is therefore, prayed that the suit of the plaintiff be decreed and the possession of the suit land comprised in kh no 70 measuring about 0-1 biswas be handed over for the plaintiff and the structure which, if any raised be demolished on the expenses of the defendant.

II. It is further prayed that the defendant be restrained not to encroach more land from the suit land and further not to interfere in the possession of the suit land comprised in kh no 70 measuring 0-2 biswas.

III. Any other relief which this court deem fit be given in favour of the plaintiff and against the defendants.

(There appears to be a typographical error as the suit land is 0-1 biswa and not 0.2 biswas).

Defendants resisted the suit admitting the factum of construction of gang hut but clarified that the gang hut was constructed way back in the year 1961 over Khasra No. 405/144.

Based on the pleadings of the parties, trial Court framed the following issues:

Whether the plaintiff is entitled for the relief of possession and permanent prohibitory injunction as prayed for? ...OPP

Whether the suit is not maintainable? ...OPD

Whether the court has no jurisdiction to entertain the suit? ....OPD

Whether the suit is bad for want of notice u/s 80 CPC? ...OPD

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

Relief.

Appreciating the evidence (ocular and documentary) led by the parties, trial Court decided Issue No.1 in favour of the plaintiff and Issues No.2,3,4 and 5 against the defendants. Such findings of fact stand affirmed by the lower Appellate Court.

Having heard Mr. R.M. Bisht, learned Deputy Advocate General, assisted by Mr. Vinod Thakur, learned Deputy Advocate General and Mr. Debinder Ghosh, learned counsel for the plaintiff-respondent, I am of the view that no case for interference is made out in the instant appeal. In fact, no substantial question of law arises for consideration, as it cannot be said that the Courts below misread and misappreciated the evidence on record and more particularly demarcation report (Ex. PW-1/B) and Tatima (Ex. PW-1/C).

Plaintiff examined three witnesses, who proved demarcation report (Ex. PW-1/B) and Tatima (Ex. PW-1/C), which clearly establish that plaintiff is the owner of the suit land, which has been renumbered as Khasra No. 70. Plaintiff got the property demarcated through the revenue agencies in the presence of representatives of the Himachal Pradesh Public Works Department (defendants). Proceedings of demarcation, in favour of the plaintiff, were not assailed by the defendants under the revenue laws. There is neither any apparent illegality nor any perversity in the conduct of such demarcation proceedings. Plaintiff relied upon the same to establish the factum of encroachment over 0.1 biswa of land by the defendants. They have been proved in accordance with law. Construction of gang hut over this piece of land cannot be disputed. This is also apparent from the testimonies of the defendants'' witnesses.

Significantly, defendants did examine six witnesses but did not place any documentary evidence to establish their ownership over the suit land. Demarcation was carried out pursuant to the orders passed by the competent revenue officials and the report is based on complete and proper appreciation of the revenue record. Noticeably, from the order sheets (orders dated 21st June, 2002, 26th July, 2002 and 12th September, 2002), it is apparent that even this Court had explored the possibility of amicable resolution of the dispute by suggesting that plaintiff be paid adequate compensation or allotted alternate piece of land. However, this endeavour could not materialize. For the foregoing reasons, present appeal is dismissed. Pending application(s), if any, also stand disposed of.