IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No.427 of 2009 Date of Decision : November 9, 2009 Vijay Kumar & Ors. …Appellants vs: Ram Saroop & Anr. …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellants : Mr. N. K. Thakur, Advocate . For the respondents: Mr. G. D. Verma, Sr. Advocate with Mr. B. C. Verma, Advocate. Sanjay Karol, J. (Oral) In the present appeal filed under Section 100 of the Code of Civil Procedure, 1908 the appellants have assailed the concurrent findings of facts returned by the Courts below. The appellants herein were the defendants in the suit filed by the plaintiffs (present respondents) and the parties herein are referred to as the defendants and the plaintiffs. On 11.5.1989, plaintiffs filed a suit for possession of the land allegedly encroached upon by the defendants. The defendants resisted the suit, inter alia on the ground that after purchasing the same vide Registered Sale Deed dated 11.8.1981 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 they got the demarcation carried out through the revenue officials and raised construction thereupon. Based on the pleadings of the parties the trial Court framed the following issues:- 1. Whether plaintiffs are owners in possession of suit land? ….OPP 2. Whether defendants have encroached upon the suit land to the extent of 5 marls shown ABCDEFGHIJ in the site plan and plaintiffs are entitled to possession of the same? …OPP 3. Whether the suit is not maintainable in the present form? …OPD 4. Whether the act and conduct of plaintiffs is a bar to the suit? …OPD 5. Whether the suit is within time? ..OPD 6. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, as alleged? ..OPD 7. Relief. In terms of judgment and decree dated 30.10.1995 passed by the Sub Judge Ist Class, Amb, Distt. Una, plaintiffs’ Civil Suit No. 91 of 1989, titled as Ram Sarup vs. Vijay Kumar & Ors., for possession was decreed to the extent of encroachment as reported by the Local Commissioner in its report Ext.OW-2/A. Aggrieved of the same, the defendants filed Civil Appeal No. 12 of 1996, which stood dismissed in terms of judgment and decree dated 27.6.2009 by the District Judge, Una. 3 Both the Courts below held the defendants to be encroacher on land measuring 19 Sarsahi evidenced by the report and the field map and as such plaintiffs were entitled to possession of the same. I have heard learned counsel for the parties and also perused the record. Jamabandies (revenue record) Ext.P-1 & Ext.P-2 for the year 1981-82 evidently reflect the plaintiffs to be the owners of the land. This has also not been specifically disputed by the defendants. It has come in the evidence of Shri Ram Sarup (PW- 1) that while the plaintiffs were working at Jalandhar (Punjab) in February, 1989, the defendants encroached upon their land. Importantly, the trial Court ordered for local investigation and Shri Ram Rattan, Consolidation Officer (Retd.) was appointed as a Local Commissioner to demarcate the suit land and report the extent and manner of encroachment. His report Ext.OW-2/A, based on the Field Map Ext.OW-2/G evidences defendants’ encroachment on part of the suit land to the extent held by the Courts below. There is no reason to disbelieve the said report particularly when the objections challenging the same stand dismissed by the Courts below. However, in the present appeal the challenge is on the ground that subsequent to the passing of the decree by the trial Court, the revenue record stood corrected by the revenue 4 authorities on 21.6.2004. Hence, the findings on the basis of incorrect revenue record are erroneous and illegal. I am afraid the contention needs to be rejected as the appellate authority has correctly arrived at its conclusion while considering the contention raised by the defendants. Importantly, the decree was passed by the trial Court in the year 1995 and the entries in the revenue record were corrected in the year 2004. The Court below has held as under: “The learned counsel for the defendants had argued that the Settlement Collector vide order dated 21.6.2004 copy Ext.A1 had revised the dimensions of the field numbers of the defendants. As per the revision the charge of encroachment of the suit land must fail. I looked into with care the order dated 21.6.2004 passed by the Settlement Collector. I find that in view of the peculiar facts and circumstances of the suit, the correction carried out by the Settlement Collector must be rejected. It appeared that the defendants had manipulated the order dated 21.6.2004 by dubious means. At no stage the defendants had stated before the lower court that dimensions of their field numbers had not been rightly recorded at the time of last settlement. As noticed above the defendants had admitted encroachment of a portion of the suit land. It was a different matter that the encroachment was stated to have been done by the police. In the written statement as well the charge of encroachment had not been specifically denied. The defendants had applied for correction of dimension of their field numbers to the Settlement Collector on 27.5.2002. In para No.2 of the 5 application copy on record the defendants had stated that southern side of their field No.1575 had been 15 Karams. This was against record. The copy of the field map of the Collector had been available with the local commissioner. Scrutiny of the copy of the field map pointed out the southern boundary of Khasra No.1575 ‘13’ Karams and not 15 karams. Southern boundary of suit Khasra No.1576 was 7 Karams. The defendants, at no stage had taken exception to the copy of the field map available with the local commissioner. The Settlement Collector had not himself carried out local investigation or spot inspection of field No.1575 and 1576. The application of the defendants was stated to have been forwarded to the field agency for report. The Field Kanungo was stated to have carried spot inspection and local investigation on 21.2.2004. It is found that neither the Settlement Collector nor the Field Kanungo had notified the plaintiffs of the proposed correction. In his wisdom the Field Kanungo had stated that the correction of the dimensions of the fields of the defendants was not going to adversely affect any one. The conclusion of the Field Kanungo was apparently wrong. The Field Kanungo had proposed addition of a portion of the area of Khasra No.1576 of the plaintiffs in the area of khasra No. 1575 of the defendants. Such addition could not have been done without notice to the aggrieved party. The defendants had encroached upon a portion of the suit land. The Field Kanungo had recommended change and revision of dimensions of the field numbers of the parties keeping in view their possession. The defendants had encroached upon the suit land and premium could not be placed on the same by revising the dimensions. After having carried out encroachment, the defendants had manipulated the correction of dimensions of their field numbers. The 6 plaintiffs had appealed against the order of the Settlement Collector and the Commissioner had stayed the operation of the order dated 21.6.2004 of the Settlement Collector. The defendants had admitted having obtained demarcation of their field No.1575 in the absence of the plaintiffs. It was nowhere the case of the defendants that they had not been aware of ownership of the plaintiffs of kahsra No.1576. The area under encroachment abutted the highway and local bus-stand and was of commercial importance. The defendants were rightly directed to clear the encroachment.” Record does not suggest the aforesaid findings to be erroneous, perverse or illegal. Hence, I find no error in the findings returned by the Courts below. The material has been correctly appreciated by the Courts below in its entirety. There is no perversity in the same. For the aforesaid reasons, no substantial question of law arises for consideration. The appeal is accordingly dismissed, so also the pending application. November 9, 2009. (Sanjay Karol) (rana) Judge.