IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 148/2009 Reserved on:24.7.2010 Decided on: 10.8. 2010 ________________________________________________ Ramesh Chand. …Appellant. Versus Basant Ram. … Respondent. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Romesh Verma, Advocate. For the Respondent :Mr. B.S. Attri, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 1.1.2009 passed by the learned District Judge, Hamirpur in Civil Appeal No.192 of 2007. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit claiming that he is co-sharer in possession of land comprised in Khata No. 86 min, Khatauni No. 115, Khasra No. 851 measuring 5 marlas situated in Tikka Sangroh Kalan, Mauza Bamson, Tehsil Bhoranj, District 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Hamirpur as shown in the copy of jamabandi for the year 1991-92, Ex.P-1. The appellant-defendant (hereinafter referred to as ‘the defendant’ for convenience sake) is stranger and trespasser qua the suit land. There is a residential house of the plaintiff over the suit land. It is averred that the defendant has started illegal construction over the suit land by encroaching upon it. He was asked to restrain himself but to no avail. The suit was filed for fixing of boundaries by demarcation and for permanent prohibitory injunction restraining the defendant from causing interference in the suit land and for possession by way of demolition in case the defendant succeeded in raising any construction over the suit land. The defendant filed written statement. On merits, he denied that he was interfering in the suit land or has encroached upon the same. Replication was filed by the plaintiff. The trial court framed the issues on 13.2.1998. Suit was dismissed by the trial court on 27.2.2003. Defendant preferred an appeal against the judgment and decree dated 27.2.2003 before the learned District Judge, Hamirpur bearing Civil Appeal No.53/2003. The same was allowed by the District Judge on 7.12.2004 and the matter was remanded back to the trial court. The trial court again decreed the suit vide judgment dated 9.10.2007. Defendant preferred an appeal before the District Judge bearing Civil Appeal No. 192 of 2007. The same was dismissed by him on 1.1.2009. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. “Whether report of Local Commissioner OW-1/A is contrary to the Mussabi Exh. OW-1/B and therefore no reliance could be placed thereon? 3 2. Whether demarcation report Ex.OW-1/A having not been carried out in accordance with prescribed procedure and instructions, issued by Financial Commissioner, H.P, therefore, no reliance can be placed thereon and consequently, suit is required to be dismissed? 3. Whether respondent has failed to plead and prove any encroachment over his land as entered against Khasra No. 851 and since Karukans in Mussabi Ex. OW-1/B of Khasra No. 850 and 851 are not legible and readable, therefore, in the absence of fixation of permanent points, no demarcation has been carried out lawfully and therefore, no encroachment can be held to have been found upon land of plaintiff by defendant? 3. Mr. Romesh Verma has strenuously argued on the basis of substantial questions of law framed that the report of the Local Commissioner Ex.OW-1/A is a nullity. He then contended that the report has been prepared by the Local Commissioner in contravention of the instructions/guidelines issued by the Financial Commissioner. 4. Mr. B.S. Attri has supported the judgments and decrees passed by both the learned courts below. 5. I have heard the learned counsel for the parties and perused the record carefully. 6. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 7. The trial court had earlier decreed the suit on 27.2.2003, as noticed above. However, the judgment and decree passed by the 4 trial court was set aside by the learned District Judge while accepting the appeal on 7.12.2004. Thereafter the matter was remanded back to the trial court. The trial court with the consent of the parties, appointed Mr. Amar Chand Premi as Local Commissioner on 27.6.2005. He furnished the report Ex.OW-1/A. The trial court decreed the suit on the basis of this report and other evidence led by the parties on 9.10.2007. The first appellate court has also affirmed the findings recorded by the trial court while dismissing the appeal on 1.1.2009. 8. Plaintiff has appeared as PW-1. According to him, defendant has encroached upon the suit land about 2 ½ years back by stacking material and started construction. He obtained the stay orders from the court but despite that defendant continued with the construction. The defendant did not agree with the demarcation report. 9. PW-2 Smt. Dharuvan Devi, who was the Ward Panch, has deposed in favour of the plaintiff. According to her, 2 ½ -3 years ago, Kanungo and Patwari visited the spot and they fixed the boundaries. The disputed land according to her was found to be of the plaintiff. However, defendant constructed his house over the suit land. 10. Defendant has examined himself as DW-3. He deposed that khasra No. 851 belongs to the plaintiff and he has not interfered in the same. He has constructed house in his own land comprised in Khasra Nos. 849 and 850. He had not accepted the earlier 5 demarcation carried out by Ravi Chand, Local Commissioner, as it was not correctly done. 11. DW-1 Smt. Anil Kumari and DW-2 Sh. Ravi Chand are not material witnesses since the earlier report furnished by Ravi Chand has been discarded and the matter was remanded back by the learned first appellate court. 12. DW-4 Dile Ram has deposed that he had also given the demarcation of the suit land as per report as mark ‘B’. Sh. Amar Chand Premi, Local Commissioner has given the demarcation report Ex.OW-1/A. The defendant has filed objections against the report on 20.9.2006. The reply was filed by the plaintiff to the same on 10.10.2006. The gist of the objections raised by the defendant was that the report was not in accordance with the revenue record, demarcation was not carried out from the fixed points, his statement was wrongly recorded and he had also not consented to pucca bannas (permanent points). According to him, demarcation was based on wrong Karukans and was in violation of the instructions issued by the Financial Commissioner. The tatima was not prepared on the spot. The plaintiff has supported the report Ex.OW-1/A. 13. Sh. Amar Chand Premi, Local Commissioner was examined as OW-1. He deposed while appearing as OW-1 that he could not follow triangular system since there were several houses on the spot. He has admitted that before fixing pucca bannas, he has not recorded the statements of the parties but he had asked them verbally. In his cross-examination, he admitted that Karukans could not be read from Ex.OW-1/B and he has read these Karukans on the 6 basis of mark ‘A’ and Latha. He has also deposed that the defendant has also supplied him the copy of Mussabi and in this Mussabi Karukans could be read. According to him, the Tatima Ex. OW-1/D was correct as per the spot position. The Local Commissioner has also recorded the statements of plaintiff and defendant on the spot Ex.OW-1/E. Plaintiff has agreed on the spot. The statement of the defendant was also recorded on 14.11.2005 and he did not agree with the report by stating that the Karukans of the land could not be tallied. He has not raised any objection about the fixing of pucca points and that triangular system was not followed. It is true that Karukans could not be read as per copy of Mussabi Ex.OW-1/B, however, the same were read on the basis of copy of Mussabi supplied by the defendant himself and on the basis Latha was prepared by Patwari. According to him, the contents could be read on the basis of Mussabi produced by the defendant and Latha prepared by the Patwari. The Tatima was prepared as per the spot position. 14. Primarily three folds submissions have been made by the parties before the trial court, first appellate court and this Court, namely: i) the demarcation was not carried from the fixed points; ii) the Karukans and Ex. OW-1/B were not legible; and iii) the Local commissioner has not followed the triangular system as per the instructions issued by the Financial Commissioner. 15. The Local Commissioner has admitted that the Karukans could not be read from Ex. OW-1/B. However, he has checked the Karukans on the basis of mark ‘A’ and Latha supplied by the Patwari. 7 Now, as far as fixing of pucca points is concerned, the defendant has not raised any objection at the time when his statement Ex.OW-1/E was recorded. It has come in Ex.OW-1/A that the pucca points were fixed though the statements were not recorded but verbal inquiries were made. If the defendant was not agreeable, he should have raised the objection before the Local Commissioner. He has, in other words, acquiesced his right. Report Ex. OW-1/A reveals that the Commissioner has, in fact, fixed the pucca points. Triangular system could not be followed by the Local Commissioner on the ground that there were several houses on the spot. The Local Commissioner was not cross-examined on this aspect by the defendant. The demarcation was carried out in the presence of parties and the Local Commissioner has measured the distance from one mark to another and the Karukans have been measured by the Local Commissioner on the basis of mark ‘A’ and the Latha supplied by the Patwari. The objection, which has been raised, as noticed above, was that the Karukans were not properly measured by the Local Commissioner. Statements of Mani Ram, Roshan Lal, Duni Chand and Amar Chand were also recorded by the Local Commissioner. They have jointly deposed that the pucca points were fixed and these were the same points, which were fixed during earlier demarcation. Ordinarily, the instructions/guidelines issued by the Financial Commissioner are to be followed scrupulously [see : State of H.P. versus Laxmi Nand and others, 1992 (2) Sim. L.C. 307; Kamal Dev and another versus Hans Raj, 2000 (1) Shim. L.C. 192; and State of H.P. versus Garib Dass and others, 2008 (1) S.L.J. (H.P.) 209. ]. However, as in the 8 instant case, it was not possible to strictly adhere to the instructions/guidelines issued by the Financial Commissioner, in that eventuality; the Local Commissioner must demarcate the land in question by adopting alternative methods available to him under the law. In this case, pucca points were fixed. Karukans could be deciphered on the basis of mark ‘A’ and the Latha supplied by the Patwari. Triangular system could not be followed since there were several houses constructed on the spot. In view of this by and large, the Local Commissioner has followed the instructions and has explained why triangular system could not be followed and to this effect there is no cross-examination by the defendant. In these circumstances, there is no illegality in the Commissioner’s report Ex.OW-1/A. 16. Accordingly, in view of the discussion made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), J. 10.8. 2010. *awasthi*