IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 10 of 2011. Reserved on: 14.07.2011. Decided on 20.07.2011. _____________________________________________________ Pushpal. …Appellant. -Versus- Manasa Devi. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant. : Mr. Ramakant Sharma, Advocate. For the respondent. : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 25.09.2010, passed by the learned District Judge, Kangra at Dharamshala (H.P.) in Civil Appeal (RBT) No. 114-G/XIII-2010/2008. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) has instituted a suit for injunction and possession against the appellant-defendant (hereinafter referred to as “the defendant” for brevity sake). According to the plaintiff, the suit land detailed in the plaint was owned and possessed by her and the defendant was complete stranger to the suit land and he has no title and interest in and over the suit land. According to the plaintiff, the defendant 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - had raised construction of cow-shed in the suit land as shown in the site plan and he requested the defendant not to interfere in the suit land. It was further pleaded that the defendant interfered in the suit land in the month of July 2001 and collected construction material. Plaintiff filed a suit and defendant appeared in the civil suit and filed written statement that he would not interfere and would not raise any construction over the suit land and thereafter, the former suit was withdrawn on 27.09.2002 by the plaintiff. However, in the month of January 2003, the defendant raised construction of house and kitchen over the suit land shown as ABCD and IJKL in the site plan without the consent of plaintiff. It was also pleaded that the defendant also took demarcation from Field Kanungo on 03.05.2003 in case No. 114/T/03 and the Kanungo also found the said construction of defendant in the suit land. The report of the Field Kanungo was confirmed by the Tehsildar, Dehra on 17.06.2003. Thus, in these circumstances, the suit was filed. 3. The written statement was filed by the defendant. According to her, the suit of the plaintiff was hit by Order 2 Rule 2 and Order 23 Rule 1 of the Code of Civil Procedure. According to the defendant, the suit was also barred by the principles of resjudicata in view of earlier Civil Suit No. 103/01 interse the parties. According to the written statement, the defendant had completed the construction in the year 1992-1993. The plaintiff filed the replication. The trial Court framed the issues on 28.01.2005. The Trial Court decreed the suit on 28.02.2008. - 3 - 4. The defendant preferred an appeal before the learned District Judge, Kangra at Dharamshala (H.P.). The same was dismissed on 25.09.2010. Hence, this Regular Second Appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the C.S. No. 107/2003 instituted by the respondent is barred by principle of resjudicata because of filing of the earlier suit by the respondent and dismissal thereof on account of withdrawal made and as such impugned judgment and decree is contrary to law? 2. Whether the demarcation report Exhibit PY is contrary to the rules and instructions issued by the Financial Commissioner and the impugned judgment and decree passed thereon is erroneous? 3. Whether there is mis-appreciation of the facts by the learned Courts below and the same has resulted into making out a new cause in favour of the respondent subjecting the appellant to substantial injustice?” 6. Mr. Ramakant Sharma, learned counsel for the appellant has strenuously argued that the present suit was barred by the principles of resjudicata and according to him, Ex. P-Y was contrary to the rules framed by this Court and the instructions issued by the Financial Commissioner. He lastly contended that both the Courts below have misread and mis-appreciated the oral as well as documentary evidence. - 4 - 7. Mr. Bhupender Gupta, learned Senior Advocate has supported the judgments and decrees passed by both the Courts below. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 10. Plaintiff has appeared as PW-1. She has led her evidence by filing an affidavit. According to the averments contained in the affidavit, she was owner in possession of the suit property. According to the contents of the affidavit, the demarcation took place and the same was affirmed by the Tehsildar. The defendant was present at the time of demarcation and no appeal was filed by the defendant qua demarcation. The defendant has forcibly constructed the kitchen and house in the year 2003. He was restrained from raising construction, but he did not pay any heed. There is a further recital in the affidavit that the defendant also took demarcation and the entire kitchen and house was found in the land owned by the plaintiff. She has admitted that earlier a civil suit was filed, which was withdrawn when the defendant undertook that he will not raise any construction. She has denied the suggestion that when former suit was filed, the house of the defendant was already constructed. 11. PW-2 Kehar Singh has supported the version of plaintiff. According to him, the defendant has raised the construction of the house and kitchen in the suit property 2 ½ - 5 - years ago. The plaintiff was owner in possession of the suit land. She has requested the defendant not to raise construction, but the defendant did not stop the construction. PW-3 Mohammad Rafi has only produced the requisitioned record. 12. PW-4 Piare Lal, Field Kanungo has deposed that he has seen the demarcation file No. 17/NT/04 titled Pushpal Vs. Narender Kumar decided 30.09.2004. According to him, he was ordered by the Naib Tehsildar to demarcate the land. He demarcated the land and the copy of demarcation report is Ex. P- 4. He further deposed that the statements of the parties were recorded and after demarcation, it was observed that defendant had raised his house over Khasra No. 1149, which is the suit property. According to him, the demarcation was accepted by the parties and statements of the parties were recorded. 13. PW-5 has brought File No. 14/T/03 titled Mansha Devi Vs. Pushpal, decided on 17.06.2003. According to him, he conducted the demarcation on 23.05.2003 as per the directions of AC Ist Grade, Dehra and the copy of the demarcation report is Ex. P-2. He further deposed that at the time of demarcation, the house of defendant was found constructed in Khasra No. 1149. PW-6 Pradeep Mehra has approved the site plan Ex. P-5. 14. The defendant has appeared as DW-1. He has also led his evidence by filing an affidavit. According to him, the suit land was initially joint interse the parties and thereafter, the partition took place. He has constructed the house in 1992-1993. The plaintiff did not object when the construction was raised by him. Plaintiff filed the civil suit in 2001, which was subsequently withdrawn. According to him, the proper demarcation was not - 6 - conducted. He was ready and willing to exchange the land with plaintiff in case some portion of her land is found under the construction raised by him. He has admitted that on 30.06.2007, Rajeev Thakur, Local Commissioner had demarcated the suit land and the demarcation was admitted as correct by him. He has also stated that during demarcation, his house, courtyard and water tank was found in the suit land. He has admitted the preparation of Tatima. He has admitted that his statement was also recorded. He has denied the suggestion that the construction was raised in 2003. He has categorically admitted that no appeal was preferred against the demarcation report. He has admitted that mutation of partition was sanctioned and Khatas of the parties were separated. According to him, he has raised the construction with the consent of plaintiff. DW-2 Chuhru Ram has supported the version of defendant. According to him, the construction was raised 12 years’ back. 15. The Naib Tehsildar was appointed as Local Commissioner by the trial Court on 22.05.2007 to demarcate the suit land. The report of the Local Commissioner is Ex. P-Y. He has found the encroachment of the defendant over Khasra No. 1149/1, area 0-01-48 hects. in the shape of house, Khasra No. 1149/2, area 0-00-96 hects. as Gair Mumkin Sehan, Khasra No. 1149/3 area 0-00-96 hects. as courtyard, 1149/4, area 0-00-35 hects. as Gair Mumkin water tank, Khasra No. 1149/5, area 0-00- 35 hects. as Gair Mumkin kitchen and Khasra No. 1149/6, area 0-00-37 hects. in the shape of kitchen garden. The defendant has not filed any objection against the report, though several opportunities were granted. The statement of the learned counsel - 7 - appearing on behalf of the defendant was also recorded to this effect on 22.09.2007. The encroachment has been shown in Field Book Ex. P-X placed on record. The Local Commissioner has recorded the statements of the parties qua permanent points and the permanent points were identified to the satisfaction of the parties. After demarcation, the Local Commissioner has recorded the statements of plaintiff and defendant and they had stated that they had no objection against the report of the Local Commissioner. The report has been prepared by the Local Commissioner as per Aks Musavi and he has also prepared the Field Book. It is, thus, conclusively proved by the plaintiff that defendant has encroached upon the land owned and possessed by the plaintiff by raising construction. 16. Now, as far as the plea of the defendant with regard to Order 2 Rule 2 and Order 23 Rule 1 of the Code of Civil Procedure is concerned, suffice it to say that the present suit has been filed on a new cause of action that the defendant started raising construction in the month of January, 2003. Thus, the present suit was not barred under Order 2 Rule 2 read with Order 23 Rule 1 of the Code of Civil Procedure. 17. As far as the plea raised by Mr. Ramakant Sharma, learned counsel for the appellant with regard to resjudicata is concerned, the earlier suit bearing No. 103 of 2001 was withdrawn and no findings were given therein. It was based on separate cause of action. In Jamabandi Ex.-PX, the name of the plaintiff has been recorded as owner in possession of the suit property comprised in Khasra No. 1147 & 1149. The name of the defendant is not mentioned in the ownership and cultivation column of the - 8 - suit property. It is, thus, evident from the oral and documentary evidence placed on record that the plaintiff was owner in possession of the suit land and the defendant has raised construction over the same by way of encroachment. Moreover, the findings recorded by both the Courts below are findings of fact and there is no substantial question of law involved in this Regular Second Appeal. 18. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma) Judge July 20, 2011. (bhupender) - 9 -