Vijay Kumar and Others vs Baldev

Deepak Gupta, J.—This Regular Second Appeal is directed against the judgment and decree dated 2.5.2000 passed by the learned District Judge, Hamirpur in Civil Appeal No. 120 of 1992, whereby he rejected the appeal filed by the Appellants (hereinafter referred to as the Defendants) and upheld the judgment and decree, dated 9.9.1992 passed by the learned Trial Court decreeing the suit of the Plaintiff.

Briefly stated, the facts of the case are that the Plaintiff filed a suit on 18.3.1989 alleging that he is owner in possession of khasra No. 21, khata No. 23/18, khatauni No. 31, measuring 0-8 marlas in Tikka Balh-Bhatan, Tappa Pahalu,Tehsil Barsar, District Hamirpur, HP.

As per averments made in the plaint, the Defendants had collected material at the spot and were trying to raise building on a portion of land of the Plaintiff.

The Defendant No. 2 is the only Defendant who contested the suit. According to him, he was raising construction only on the land comprised in khasra No. 22 which admittedly is owned by him. He denied that he was raising any construction in khasra No. 21. A stay order was passed in favour of the Plaintiff and against the Defendants. During the course of proceedings before the learned Trial Court, a local commissioner was appointed who went to the spot and found that the Defendants were raising construction, but obviously this commissioner could not identify, whether the building was being raised on khasra No. 21 or khasra No. 22. There are only 2-3 witnesses whose evidence has to be referred to in the case.

PW-5 Sh. Ishwar Dass is the Kanungo who had carried out demarcation of the land on the orders of the Tehsildar. According to him, during the course of this demarcation, he found that Defendant No. 2 had encroached upon one marla of land in khasra No. 21 owned by the Plaintiff.

On the other hand, the Defendants rely upon the statement of DW-5 Sh. R.D. Kataria who was the consolidation officer at the relevant time. According to this witness, he conducted demarcation of khara No. 22 owned by Defendants, but did not find any encroachment thereupon. The statement of DW-5 R.D. Kataria does not inspire confidence. The stand of the Plaintiff was that the Defendants had encroached upon khasra No. 21. Sh. R.D. Kataria did not demarcate or make any report with regard to this khasra number, therefore, no reliance can be placed on his statement. As far as PW-5 Sh. Ishwar Dass is concerned, the main objection appears to be that his statement was recorded in rebuttal and not in affirmative. Be that as it may, this statement is on record and is the statement of a revenue expert, who has carried out the demarcation. According to this witness he found that Defendant No. 1 had encroached upon one marla of land.

The appeal was admitted on the following questions of law:

Whether the two courts below were right in relying upon the demarcation report Ext. PW5/A which evidence was led in rebuttal by the Plaintiff?

In my view merely because the evidence of these witnesses were recorded in rebuttal there is no reason to discard their evidence. The finding, whether the Defendants had encroached upon one marla of land or not is a pure finding of fact and no question of law much less a substantial question of law arises in the appeal. In view of the above, the appeal is dismissed. No order as to costs.