IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 382 of 2010. Reserved on: 01.11.2011. Decided on: 04.11.2011. ______________________________________________ Salochana Devi and others. … Appellants. Versus Goamp Devo. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellants : Mr. Ashok Sood, Advocate. For the Respondent : Mr. Ajay Sharma, Advocate. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Hamirpur on 1.5.2010 in Civil Appeal No. 212 of 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) 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - has instituted a suit against the appellants/defendants (hereinafter referred to as “the defendants” for convenience sake) for permanent prohibitory injunction and for possession and demarcation of the suit land. According to the averments contained in the plaint, land comprised in Khata No.107, Khatauni No. 234, Khasra No.696, measuring 325.50 square metres, situate in Tika Anu, Tappa Matti Tihra, Tehsil and District Hamirpur is recorded under the ownership and possession of plaintiff. According to the averments contained in the plaint, defendants are strangers and they have no right, title or interest over the suit land. According to the plaintiff, defendants have encroached upon some portion of the suit land by way of raising construction of ‘chhajja’ and ‘attli/bieu’ over the suit land forcibly. 3. The suit was contested by the defendants. According to the defendants, they have raised construction over their own land. No encroachment has been made by them over the land of plaintiff. According to them, rather the plaintiff has raised construction of some portion of her lintel in such a manner that projection has resulted into encroachment of some land of the defendants. 4. No replication was filed by the plaintiff. Issues were framed by the learned trial Court on 29.4.1998. The learned Civil Judge (Junior Division), Court No. II, Hamirpur decreed the suit on 31.10.2008. Defendants preferred an appeal before the - 3 - learned District Judge, Hamirpur. He dismissed the same on 1.5.2010. Hence, this regular second appeal against the judgment and decree dated 1.5.2010 passed by the learned District Judge, Hamirpur. 5. This regular second appeal was admitted on 16.11.2010 on the following substantial questions of law:- “i) Whether suit for encroachment is competent and maintainable without first having such encroachment ascertained through Revenue Agency and without having necessary Tatima of encroachment (Naksha Tafawat) prepared from competent Revenue Authorities before rushing to court? ii) Whether Local Commissioner failed to carry out demarcation in accordance with law, rules and instructions issued by Financial Commissioner for conducting of demarcation?” 6. Mr. Ashok Sood, learned counsel for the defendants has strenuously argued that both the Courts below have misread and misconstrued the oral as well as documentary evidence. According to him, the demarcation of the suit land has not been carried out in accordance with the instructions issued by the Financial Commissioner. He has also argued that there is variance of Karu Kans. He lastly contended that Musavi was not taken into consideration by the Local Commissioner at the time of preparing the report. - 4 - 7. Mr. Ajay Sharma, learned counsel for the plaintiff has supported the judgments and decrees passed by both the courts below. He has also argued that the plea that there is variance in the Karu Kans, has not been taken by the appellants before both the courts below. He then contended that the objections filed by the defendants to the report of the Local Commissioner were duly considered and rejected. 8. I have heard learned counsel for the parties and gone through the pleadings carefully. 9. Since both the substantial questions of law are interconnected and interlinked, they are taken up together for consideration and determination to avoid repetition of discussion of evidence. 10. Plaintiff has appeared as PW-1. According to her, the defendants started raising construction of stair case and started construction of over-hanging projection over the suit land. The Local Commissioner was appointed by the Court. She admitted in her cross examination that the defendants have purchased the land from the same Khasra nmber from which she has purchased the land. She has also admitted that defendant Salochana Devi has constructed her house prior to her construction. According to her, the partition was effected in the year 1982-83. Thereafter she got the correction made qua which appeal is pending. - 5 - 11. PW-2, Smt. Sandhya Devi has supported the version of the plaintiff. According to her, the demarcation was conducted in her presence. She has also stated that the land of both the parties was measured. 12. Defendant, Salochana Devi has appeared as DW-1. According to her, she has constructed her house in the year 1986- 87 and the construction was completed in the year 1990. According to her, nobody had raised any objection at the time when the construction was raised. She has further deposed that the plaintiff has put the lintel over their slab. She has also deposed that the Local Commissioner has obtained her signatures on blank papers. 13. DW-2, Jai Pal has also supported the version of DW-1. Shri Dina Nath has appeared as DW-3. He has deposed that he was appointed as Local Commissioner. He has produced the report Ex.DW-3/A. He has placed on record the statements Ex.DW-1/A, Ex.DW-1/B and Ex.DW-3/B recorded about pucca bannas before conducting the demarcation. According to him, he has conducted the demarcation by adopting triangular system. According to him, the copy of Musavi was produced before him though the same was not annexed with the report. 14. According to Ex.P-1, Jamabandi for the year 1981-82, the suit land is reflected to be owned and possessed by the plaintiff. Local Commissioner has recorded the statements of the - 6 - parties at the time of fixing pucca points. Defendant, Salochana Devi has put her signatures on the statement. However, according to her, her signatures were obtained on blank papers. This plea was not taken at the time of filing objections to the report of Local Commissioner. It is an after-thought and has been rightly brushed aside by the learned trial Court. It is borne out from the record that the Local Commissioner has measured the land by adopting triangular system. The Aks Tatima, Ex.DW-3/C shows that A, B, C points were taken by the Local Commissioner on three corners of the suit land. It has come in the statement of DW-3, Dina Nath that the copy of Musavi was produced before him at the time of demarcation. It is, thus, evident that the demarcation has been carried out as per instructions issued by the Financial Commissioner. The additional point urged by Mr. Ashok Sood, learned counsel for the defendants that there is variance in Karu Kans from 80 to 90 was never taken before the courts below. This point cannot be permitted to be taken at this stage. The objections were filed by the defendants to the report of Local Commissioner, which were duly considered and rejected by the learned trial Court. 15. Accordingly, in view of the observations and discussions made hereinabove, it is held that the learned courts below have correctly appreciated the oral as well as documentary evidence adduced by the parties. Consequently, there is no merit - 7 - 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. November 04, 2011. (sck).