IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.33/1999 Reserved on:14.5.2009 Decided on:5.6.2009 Rama Nand and others. …Appellants. Versus Fango Devi and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. Bimal Gupta, Advocate. For the Respondents : Mr. R.K. Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 2.11.1998 passed by the learned Additional District Judge, Sirmaur at Nahan in civil appeal No. 169/1 of 1997/1990. Brief facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of the respondents-plaintiffs Sh. Amroo and respondent No.2 Bihari (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit in the court of learned Sub Judge 1st Class for decree of possession of land comprised in Khewat No.4, Khatauni No.13, Khasra No. 96/38/1 measuring 0-13 biswas 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 situated in village Ghuttanpur, Tehsil Paonta Sahib. The suit was filed on the ground that the plaintiffs are owners of the land comprised in Khewat No.4, Khatauni No. 13, Khasra No. 96/38 measuring 22 bighas 9 biswas situate in village Ghuttanpur, Tehsil Paonta Sahib and the appellants- defendants (hereinafter referred to as ‘the defendants’ for convenience sake) without any right, title or interest trespassed on an area of about 4 biswas in the year 1982 and thereafter in the year 1989, they built one ‘Chhapper’ on 2 biswas of land and then further covered another 7 biswas of land. Thus in total, the defendants took wrongful possession of 13 biswas of land. The suit was contested by the defendants. The trial court decreed the suit on 4.4.1992. The defendants preferred an appeal before the Additional District Judge, Sirmaur. The same was remanded by the learned Additional District Judge on 23.5.1997. The learned trial court dismissed the suit on 24.2.1998. The plaintiffs preferred an appeal before the learned Additional District Judge, Sirmaur. He allowed the same on 2.11.1998. This Regular Second Appeal has been directed against the judgment and decree dated 2.11.1998 passed by the learned Additional District Judge. The same was admitted on the following substantial questions of law: 1. “Whether the learned Additional District Judge has erred in not considering as to when defendant No.1 was given Patta Ex.DW-3/A on 9.9.71 of land measuring 13-3 bighas but later on mutation of proprietary rights of defendant No.1 was attested vide mutation No. 257 dated 6.5.1989 Ex.PX under section 104 of the H.P. Tenancy and Land Reforms Act of land measuring 12-4 bighas, then how land measuring 19 biswas of defendant No.1 was reduced in Ex.PX? 2. Whether learned Additional District Judge has misconstrued, misinterpreted Ex.DW-3/B order of Compensation Officer Ex.DW-3/A Patta Ex.DW-3/C 3 Tatima, Ex.PW-3/A and Ex.DW-3/A two demarcation reports as well as Ex.P-5 mutation No.185? 3. Whether learned Additional District Judge has misconstrued, misinterpreted the written statement filed by defendants and has thus erred in returning the finding that defendants have encroached the land of the plaintiffs? 4. Whether learned Additional District Judge has erred in not considering the case that even if the plaintiffs have proved their case, still, except for compensation, they are not entitled to decree of possession by way of demolition of structure on the basis of principle of estopple as specifically concluded by learned trial court?” Mr. Bimal Gupta, Advocate has supported the judgment and decree dated 24.2.1998 passed by the trial court. Mr. R.K. Gautam, Senior Advocate has supported the judgment and decree dated 2.11.1998 passed by the learned first appellate court. I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. It is admitted case of the parties that prior to 1971, they were tenants of one Sh. Durga Dutt. Sh. Durga Dutt was owner of Khasra No. 38. The plaintiffs were the tenants along with defendant No.1, who was also tenant on some portion. These lands were adjoining each other. They applied to the Compensation Officer under the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 for granting ‘Patta’ to them in respect of the tenancy land in their possession. The plaintiffs were granted ‘Patta’ Ex.P-4 on 9.9.1971. In sequel to Patta 4 Ex.P-4, the revenue entries were made as per Ex.P-1 to P3, copies of jamabandis for the year 1975-76, 1980-81 and 1985-86. Ex.P-5 is the copy of mutation No. 185 dated 25.12.1978 whereby the proprietary rights were conferred upon the plaintiffs. The defendants were granted Patta Ex.DW-3/A on 9.9.1971. Ex.PX is the copy of mutation No. 257 vide which the proprietary rights were conferred upon the defendants on 6.5.1989 under section 104 of the Himachal Pradesh Tenancy and Land Reforms Act. The plaintiffs have strongly relied upon the demarcation report Ex.PW-3/A. It shows that encroachment was made by the defendants. DW-1 Sant Ram has deposed that the suit land was given to him for cultivation by Sh. Durga Dutt. According to him, the plaintiffs were cultivating the land adjoining to the land of the defendants. There was a ‘Dol’ in between. He has constructed a house 12-13 years back. It was not objected to by the plaintiffs. He has also examined DW-2 Puran Chand and DW-3 Sant Ram. DW-3 Sant Ram has been examined by the defendants to prove ‘Patta’ Ex.DW-3/A, copy of order of the Compensation Officer Ex.DW-3/B and tatima Ex.DW-3/C as well as the demarcation report mark ‘X’. DW-5 Sh. Chaman Lal is Girdawar Kanungo Halqua Majra. He has been examined to prove the copy of the demarcation report Ex.DW-5/A. DW-6 Satish Mohan is the Record Keeper. He has been examined by the defendants to prove the tatima Ex.PW-6/A. This witness has also produced Ex.AW-1/A to Ex.AW-1/E by way of additional evidence. AW-2 Roshan Lal was examined by the defendants by way of additional evidence to prove the documents Ex.AW- 1/B and AW-1/C. Khasra No.38 was divided into to khasra numbers i.e. 95/38 and 96/38. On Khasra No. 96/38 measuring 22 bighas and 9 biswas, one Thakru, father of the plaintiffs was recorded as owner in possession 5 whereas on Khasra No. 95/38 measuring 4 bighas 16 biswas, defendant No.1 was recorded as non-occupancy tenant under Durga Dutt. In the year 1980-81, Ex.P-2, though Thakru is recorded as owner in Khasra No.96/38, it appears that mutation No. 233 of inheritance was attested in the names of his two sons i.e. the plaintiffs. The same entries were repeated in the copy of jamabandi for the year 1985-86 (Ex.P-3). Defendant No.1 has admitted that he had constructed a house on the suit land and the revenue staff had wrongly shown some of the area of their land as part of the plaintiffs’ land. He further admitted that plaintiffs’ father Sh. Thakru got defendant’s land entered in his name by deceitful means. There are two demarcation reports on the record i.e. Ex.PW-3/A and DW- 5/A. Sh. Jagat Ram had prepared Ex.PW-3/A. He has proved on record Ex.PW-3/A and tatima Ex.PW-3/B. It is clear from Ex.PW-3/A that defendant No.1 had encroached the suit land. It has come in the report that defendant No.1 encroached upon khasra No. 98/38/1 to the extent of 14 ‘karams’ in width and 40 ‘karams’ in length in front of ‘dol’ measuring 40 ‘karams’ towards its Southern side. DW-5 Chaman Lal has proved his demarcation report Ex.DW-5/A. In his cross-examination, he has admitted that the suit land was found to be in the ownership of the plaintiffs. He had also admitted that he did not find any ‘Dol’ in between Khasra No. 95/38 and 96/38. What emerges from the reports Ex.PW-3/A and Ex.DW-5/A is that defendant No.1 had encroached upon the land of the plaintiffs. There was no variance in both the reports as held by the learned first appellate court. The learned first appellate court has rightly reconciled both the reports and his conclusion is in accordance with law. Mr. Bimal Gupta, Advocate has also strenuously argued that as per Patta Ex.DW-3/A, the land measuring 13-3 bighas was mentioned, 6 however, on mutation of proprietary right vide Ex.PX, the land measuring 12-4 bighas was recorded. In case the land was reduced it was for the defendants to take appropriate steps in accordance with law. The learned first appellate court has correctly appreciated the oral as well as documentary evidence led by the parties. Consequently, in view of the aforesaid reasoning, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 5.6. 2009 (Rajiv Sharma ), J. *awasthi*