IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 319 of 2009 Date of Decision : January 8, 2010 Satya Pal …Appellant Versus: Rattan Chand …Respondent Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting? For the appellant: Mr. Ramakant Sharma, Advocate For the respondent : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. Sanjay Karol, J. (Oral) Plaintiff-appellant Shri Satya Pal has filed the instant Regular Second Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and Decree dated 7.4.2009 passed by the Additional District Judge, Fast Track Court, Hamirpur, in Civil Appeal No. 79 of 2007 titled as Satya Pal vs. Rattan Chand, affirming the judgment and Decree dated 24.8.2007 passed by the Civil Judge (Sr. Division), Hamirpur, in Civil Suit No. 78 of 1999. Both the Courts below, by way of concurrent findings of fact have dismissed the plaintiff’s suit. The appellant is referred to as the plaintiff and the respondent Shri Rattan Chand is referred to as the defendant. 2 On 24.2.1999, plaintiff filed a suit praying for the following relief :- “Decree for demarcation as well as possession of the land encroached upon by the defendant in the suit land comprising Khata No. 132, Khatoni No. 374, Khasra No. 3002/238 measuring 12.35 sq. mtrs. situated in Up Mahal Shiv Nagar, Tappa Bajuri, Tehsil and District Hamirpur (H.P.) with a permanent prohibitory injunction restraining the defendant from raising construction and making encroachment in any manner over the suit land, be passed in favour of the plaintiff and against the defendant. The pleaded cause of action reads as under. “That the cause of action arose to the plaintiff in the month of March, 1990 when the defendant constructed Gate, Kitchen and stair case over the suit land and the same is continuing one and the defendant is further now raising pillars.” The defendant resisted the suit inter alia on the ground that the existing construction carried out by him was in terms of the agreement dated 22.2.1984. In exchange of the defendant’s land, the plaintiff had agreed to divide his rectangular piece of land situated at the rear portion of his house, entitling both of them to raise construction on 6 feet 3 inch (each) of land. Based on the pleadings of the parties, the trial Court framed the following issues:- 3 1. Whether the plaintiff is entitled to the Decree for demarcation and possession of the land in suit as prayed for? ……OPP 2. Whether the plaintiff is also entitled to Decree for permanent injunction as prayed for? …OPP 3. Whether the suit is not legally maintainable as alleged? ..OPD 4. Whether the plaintiff is estopped from filing the suit by his act and conduct? …OPD 5. Whether the suit is barred by principle of resjudicata and under Order 2 Rule 2 CPC? ..OPD 6. Whether the suit is barred by time? ..OPD 6-A Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? .OPP 7. Relief.” The plaintiff examined himself as PW-1 and Shri Rakesh Kant (PW-2) and the defendant examined himself as DW-1, Shri Gian Chand (DW-2), Shri Rajinder Singh (DW-3) and Shri Jagdeep Singh (DW-4). Having perused the material on record, the trial Court in terms of judgment and Decree dated 24.8.2007, dismissed the plaintiff’s suit by holding that keeping in view the provisions of Sections 107 & 171 of the H.P. Land Revenue Act, 1953 (hereinafter referred to as the Revenue Act), the jurisdiction of the Civil Court to grant the first part of the prayer clause was barred. In any event there was no evidence to the effect that the defendant had encroached upon the plaintiff’s land. There was also no evidence on record to prove that after 4 1990, the defendant had raised any construction. The Court found that in effect, the plaintiff was seeking execution of the consent Decree passed in the earlier proceedings initiated by the plaintiff against the defendant. Issues No.1, 2, 5, 6 & 6-A were decided in the negative and issues No.3 & 4 were decided in the affirmative. The plaintiff’s appeal, assailing the same was dismissed in terms of the impugned judgment and Decree dated 7.4.2009. Except for the findings returned on issue No.6, the lower Appellate Court upheld all the findings returned by the trial Court. However, the suit was held to have been filed within the period of limitation. Heard learned counsel for the parties and also perused the record of the Courts below. There is no dispute that the parties had entered into an agreement dated 22.2.1984 (Ext.DA), whereby they had agreed to utilize the suit land. In the year 1989 certain disputes arose with respect to its implementation and the plaintiff filed a civil suit against the defendant in the Court of Civil Judge (Sr. Division), Hamirpur. During its pendency, the parties arrived at a compromise and their statements (Ext.PW-1/A & Ext.PW-1/B) were recorded by the Court on 14.9.1990. Accordingly, in terms of the compromise the said suit was Decreed. It is evident from the Decree Ext.PW-1/C. 5 The plaintiff again filed the instant suit. Both the courts below have concurrently held that the plaintiff has not been able to prove that after the year 1990, the defendant had raised any new construction on the suit land. Admittedly plaintiff has not sought execution of the Decree Ext.PW-1/C. The relevant provisions of the Revenue Act reads as under:- 107. Power of Revenue Officers to define boundaries – 1(A) A Revenue Officer may, for the purpose of framing any record or making any assessment under this Act or on the application of any person interested, define the limits of any estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require survey marks to be erected or repaired. (2) In defining the limits of any land under sub section (1) the Revenue Officer may, cause survey marks to be erected on any boundary already determined by, or by order of any Court, Revenue Officer or Forest Settlement Officer or restore any survey marks already set up by, or by order of any Court or any such Officer. 171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers:- Except as otherwise provided by this Act:- (i) any question as to the limits of any land which has been defined by a Revenue Officer as land to which this Act does or does not apply; (ii) any claim to compel the performance of any duties imposed by this Act or any other enactment for the time being in force on any Revenue Officer, as such-----;” 6 Admittedly, the plaintiff had not initiated any proceedings seeking demarcation of the suit land under the Revenue Act. There is nothing on record to even prima facie show that the defendant had encroached upon the plaintiff’s land. The suit has been filed on mere apprehension. The Courts below have rightly held that qua the relief of demarcation, the jurisdiction of the Civil Court would be barred and the remedy lies before the Revenue Officer under the Revenue Act. There is also no evidence on record to justify grant of other reliefs. The Courts below have held that in effect the plaintiff is seeking execution of the Decree which is not permissible in law. Based on the statement of DW-1, an attempt was made by the learned counsel for the plaintiff to show that the agreement Ext.DA, is actually an outcome of fraud. The contention has been rightly rejected by the Courts below as in the instant suit the plaintiff has neither challenged the agreement nor the Decree incorporating the terms of the compromise. An attempt was made by the plaintiff to amend the instant suit by incorporating the plea of fraud. The application stood rejected by the trial Court in terms of order dated 1.6.2005. The said order has attained finality. Hence the contention that the Decree is an outcome of fraud is untenable in law. 7 The plaintiff himself having agreed to utilize the suit land and gained certain advantages of the original agreement dated 22.2.1984, cannot be allowed to wriggle out of the same. Hence, I find no merit in the present appeal. There is no illegality or irregularity in the impugned judgment and Decree. No question of law, much less substantial questions of law arises for consideration. No other point urged. The appeal being devoid of merit is dismissed. ( Sanjay Karol ), Judge. January 8, 2010 (rana)