IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 407 of 2007. Judgment reserved on :30.8.2010. Date of decision: September 22,2010 ---------------------------------------------------------------------------- Hari Chand and another. …. Appellants. Versus Kashmir Singh and others. …. Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the appellants : Mr. Mukul Sood, Advocate. For the respondents : Mr. Ajay Sharma, Advocate. Surinder Singh, J : 1. This second appeal was admitted on 3rd January, 2008 on the following substantial questions of law:- (i) Whether the learned District Judge was right in accepting the report of the local Commissioner when the same was vitiated and demarcation having not been carried out in accordance with the High Court Rules and Orders and the instructions of the Financial Commissioner? (ii) Whether in the facts and circumstances of the case, the learned District Judge erred in not allowing the appellants an opportunity for fresh demarcation once 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - the report of the local Commissioner Ext. OW-1/A was accepted and objections of the appellants rejected? (iii) Whether the suit of the plaintiffs was not within limitation and also barred under the provisions of the H.P. Consolidation and Land Holdings Act and the findings that the plaintiffs are the owners in possession of the suit land are sustainable in law? (iv) Whether the judgment and decree of the learned District Judge is vitiated it having not given findings on each issues separately and not independently considering the evidence being contrary to Order 20 Rule 5 CPC and the judgment of this Hon’ble Court in AIR 2001 HP 18 State of H.P. versus Om Parkash? 2. This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 29th June, 2007, passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No.98-G/XIII-2001, whereby the learned First Appellate Court while allowing the appeal filed by the respondents herein had set-aside the judgment and decree passed by the learned trial Court in a suit filed by Shri Liak Ram, predecessor-in-interest of the respondents herein, hereinafter to be called as ‘the plaintiff’. The plaintiff sought a decree of declaration and injunction in alternative possession qua the suit - 3 - land, against the appellants now referred as ‘the defendants’. 3. Brief facts, giving rise to the present appeal are that: (i) the plaintiff disputed the entries of revenue record qua Suit Khasra Nos.702 and 720 of the defendants rather he claimed to be its owner in possession. His case has been that suit Khasra Nos.702/1 was a part of Khasra No.2947/2668, Khasra No.720/2 has been a part of old Khasra No.3628/1502 and 3626/1501 and Khasra No.932/1 of old Khasra No.3641/2722/1533, 2959/2729 and 2953/270 as per jamabandi for the year 1975-76. (ii) During the settlement operations, the above suit Khasras, were wrongly shown as part of old Khasra nos. 2670/1499, 2669/1499, 3629/1502, 3630/1508, 2985/2721, 3640/2722/1533 - 4 - and 2955/2720, belonging to the defendants. (iii) After the settlement operation, the defendants had filed a suit for permanent prohibitory injunction against Liak Ram predecessor-in- interest of the plaintiff and others in the year 1982. The written statement was filed therein and a Local Commissioner was appointed. The Local Commissioner vide his report (Ex.PW2/E) found that the Khasra Nos.702, 720 and 732 were owned and possessed by plaintiff Laik Ram. On 6.4.1982, the plaintiff had moved an application to the Settlement Collector for correction of revenue entries, but it remained pending because of the pendency of the said civil suit. Later the defendants withdrew the suit on 13th June, 1990. 4. On 29th June, 1990, the plaintiff filed the present suit precisely alleging that on account of the wrong - 5 - revenue entries the defendants had threatened to dispossess him and sought the above relief. 5. The defendants offered a strong resistance to the suit and took up the preliminary objection regarding the maintainability of the suit, estoppel, no cause of action, resjudicata, valuation, limitation and also questioned the jurisdiction of the Court to try and determine the controversy, in their written statement. On merits, they denied the case of the plaintiff in toto. According to them the earlier suit was withdrawn by them because the settlement operations were in progress. They disputed the report of the Local Commissioner and also denied the possession of the plaintiff. 6. In replication, the preliminary objections were denied and even paras of the plaint were reiterated on merits. 7. On the rival contention, the learned trial Court had framed the following issues:- 1. Whether the plaintiff is owner in possession of land comprising Khasra No.702/1, 720/2 & 932/1 as alleged? OPP. - 6 - 2. Whether the plaintiff is entitled to the injunction as prayed? OPP. 3. Whether the suit is not maintainable? OPD. 4. Whether the plaintiff is estopped by his act and conduct? OPD 5. Whether the suit is not properly valued? OPD. 6. Whether this Court has no jurisdiction? OPD. 7. Whether the suit not within time? OPD. 8. Whether the suit is barred by the principle of resjudicata? OPD. 9. Whether alternatively the defendants have become owner of land by way of adverse possession, as alleged? OPD. 10. Relief. 8. After the complete trial, the learned trial Court answered all the issues except Issues Nos.3 and 7 in negative and Issue No.9 was held redundant, as such dismissed the suit. 9. Feeling dissatisfied by the judgment and decree passed by the learned trial Court, the plaintiff filed an appeal before the learned District Judge. During the pendency of appeal, the plaintiff moved an application under Order 26 Rule 9 CPC read with Order 41 Rule 27 CPC, for the appointment of Local - 7 - Commissioner and his report as additional evidence. It was allowed vide a detailed order dated 22nd August, 2003, thus, appointed Tehsildar, Dehra as the Local Commissioner to demarcate the suit land with the help of Mussavi and to submit his report as to whether the suit Khasras as shown in the earlier report dated 21.6.90 Ex.PW2/E by the previous Local Commissioner is the part of old khasra Nos.2947/2668, 3628/1502, 3626/1501, 3641/2722/1533, 2959/2729 and 2953/2720 comprised in Khata Khatauni No.100/224 as per jamabandi for the years 1975-76 and were wrongly shown as part of the land of old khasra Nos. 2670/1499, 2669/1499, 3629/1502, 3630/1503, 2985/2721, 3640/2722/1533. 10. Sh. Malook Singh (OW1), Local Commissioner, in compliance of the order of learned first appellate Court submitted his report Ext.OW1/A against which defendants filed their objections. The issue was accordingly framed. The parties led evidence before the learned first appellate Court. But it did not concur with objections so filed by the defendants, as such affirmed the report Ex.OW1/A which revealed that the suit Khasras were the part of the land owned by the - 8 - plaintiff. The evidence on record was found in line with the report of the Local Commissioner, thus finally reversed the impugned judgment and decree passed by the learned trial Court and allowed plaintiff’s appeal thereby decreed his suit as prayed for. Hence, the present second appeal by the defendants. 11. The learned counsel for the defendants argued that the learned first appellate court did not properly appreciated the objections raised by the defendants to the Local Commissioner’s report, therefore, the impugned judgment and decree deserves to be set aside also on the ground that suit was barred by limitation. 12. It is an admitted fact that the land comprised in Khasra Nos.3628/1502 and 2626/1501 (old) is in the ownership and possession of the plaintiff and Khasra Nos.2670/1499 and 2669/1499 (old) has been in the ownership and possession of the defendants. The suit khasras are claimed to be a part of land of their old Khasra numbers by the defendants, whereas, the plaintiff claims their own. The suit of the plaintiff was dismissed by the learned trial Court, on the ground that the report of the Local Commissioner - 9 - Ex.PW2/E was not legal and valid and also on the ground of limitation. As the right to sue had accrued to the plaintiff on 2.6.1982 when the defendants filed an earlier suit No.117/82 seeking injunction against the plaintiff by claiming themselves to be the exclusive owners in possession of the suit land denying their title. 13. It stands established from the record that the settlement operations were going on in the year 1978-79. In the Misal Hakiat Bandobast Jadid for the year 1978-79 Ex.P13= P21, the suit land was shown to be in the ownership of the defendants, as such, plaintiff moved an application Ex.P8, on 5.8.82 seeking correction of revenue entries, to the Settlement Officer that the suit land was wrongly shown to be a part of old Khasra numbers of the defendants. The Settlement Officer allowed the application vide his order dated 3.2.1983. During the pendency of the correction application, the defendants had filed a civil suit No.117/82 on 1.6.82 whereby they claimed the injunction restraining the original plaintiff (Liak Ram) from causing any interference in the suit land being stranger having no right, title or interest. The defendants also assailed the orders of correction - 10 - passed by the Collector in favour of the plaintiff by filing Revenue Appeal No.153/93 before the Divisional Commissioner, Kangra, which was accepted vide order dated 16.11.94 Ex.DX and the case was remanded back to the Settlement Officer. 14. Again after rehearing the parties, the Settlement Officer ordered for correction of the revenue entries in favour of the plaintiff, which was again assailed before the Divisional Commissioner by the defendants. In the meantime, a suit No.117/82 was filed by the defendants for injunction against Liak Ram and others (plaintiffs) which was decreed on 25.3.86. Thereafter, vide order dated 8.5.87 (Ex.DX), the Divisional Commissioner, Kangra held that the revenue Court was not in a position to determine the title of the dispute khasras, which was required to be adjudicated in the civil Court only, but with respect to the measurement of the disputed Khasra numbers on the request of the plaintiffs herein, the Settlement Officer was directed by the Divisional Commissioner to carry out the measurement of the disputed Khasra numbers after giving opportunity to the interested parties and it was ordered that the demarcation after fresh - 11 - measurement should cover all the Khasra numbers which were adjudicated by the Settlement Officer vide order dated 3.2.83. 15. The plaintiffs herein assailed the judgment and decree Ex.DX passed by the learned trial Court on 25.3.86 in appeal before the District Judge Kangra, which was allowed and the judgment and decree of the Lower Court was set-aside and case was remanded back to the Sub Judge, Dehra for fresh decision when this matter in Civil Suit No.117/82 was pending before the learned Sub Judge, on the application moved by the defendants herein, a Local Commissioner PW2 Shri Ram Rattan, Tehsildar was appointed to ascertain in demarcation whether the suit land was a part of old Khasra numbers of the plaintiff, as alleged in the suit and were wrongly shown in the name of defendants. 16. After the demarcation and examination of the record he submitted his report dated 21.5.90 Ex.PW2/A whereby it was stated that previous Khasra numbers of the suit Khasra were owned and possessed by the plaintiffs and during the settlement wrong plotting was done showing it to be part of Khasra - 12 - numbers owned by the defendants. When this report was filed in the Court, the defendants perhaps did not think it proper to continue with suit No.117/82, as such, it was got dismissed as withdrawn vide order Ex.P7=Ex.P24 dated 13.6.90. 17. It appears that when the earlier suit filed by the defendants was dismissed as withdrawn, the plaintiffs herein felt handicapped to agitate the matter further and assert their claim. Thus, they filed the present suit No.271 of 1990 on 29.6.90 and it was in the suit that against PW2 Ram Rattan, who had earlier had given his report Ex.PW2/E in previous Civil Suit No.117/82 was examined by the plaintiff to prove its case, which was not accepted by the learned trial Court, as such, the suit was dismissed and an appeal filed before the First Appellate Court and it was then during the pendency of appeal, the plaintiff moved an application for appointing a Local Commissioner under Order 26 Rule 9 read with Order 41 Rule 27 of the Code of Civil Procedure, which was allowed vide a detailed order dated 1.9.2003 as aforesaid to demarcate the said land as per procedure in the presence of the parties. - 13 - 18. I have examined the evidence led before the learned first appellate Court which led the confirmation of the report of Local Commissioner. The Local Commissioner Shri Malook Singh, Tehsildar testified that the demarcation was carried out by him in accordance with rules and orders of the High Court, with respect to the demarcation. He also took into consideration ‘Aks’ of previous settlement. Before the commencement of the demarcation, he had also recorded the statements of both the parties. During the demarcation he had fixed the permanent points. No one had objected to it. He stated that after concluding the demarcation, the defendants left the spot without getting their statements recorded. He also stated that the consolidation had taken place and the possession was exchanged. 19. The defendants had examined OW3 Sohan Lal. the Assistant Consolidation Officer. According to him, on the application of the plaintiff Khasra numbers of the parties, which were subject matter of the suit, kept intact till the pendency of the suit. The detailed procedure for demarcation was adopted by the Local Commissioner as stated by him which was reflected in - 14 - the report. The learned first Appellate Court after hearing the parties, rightly held that the objections filed by the defendants were superfluous and without any merit thus confirmed the report of Local Commissioner, which was not assailed further by the defendants except by taking plea in the present second appeal. 20. Learned counsel for the appellants failed to pin-point as to how and in what manner the report and the demarcation conducted by the Local Commissioner as per the orders of the First Appellate Court was wrong and illegal and which rule was infracted. The ‘pucca’ points were actually fixed in the presence of the parties and their statements were also recorded, no objection was raised. After the demarcation, when the defendants found it unfavourble to them they left the spot and this act on their part appears to be malafide. Therefore, in my considered opinion, the learned first Appellate Court did not commit any error and illegality in accepting the report of the Local Commissioner appointed by it during the pendency of the appeal. Against above background facts, the first Appellate Court was not under obligation to further grant an opportunity to the - 15 - defendants for fresh demarcation and also no ground for that was made out. 21. In so far as the point of limitation is concerned, as already stated above, the earlier suit No.117/82 filed by the defendants was dismissed as withdrawn finding the report Ex.PW2/E of the Local Commissioner unfavourable to them. Although, the plaintiff came to know about the existence of wrong revenue entries in the year 1982, as such they moved an application for the correction thereof, as stated above to which the revenue Court was unable to decide as held in Ex.DX by the Divisional Commissioner, Kangra. Earlier civil suit No.117/82 filed by the defendants had already been decided which was pending in appeal. After the remand of the civil suit, the Local Commissioner as stated above, was also appointed, but on the withdrawal of the suit on 13.6.90 vide order Ex.P7=P24 on 29.6.90, the plaintiff had no other alternative but to file instant suit i.e. within 16th days of withdrawal, seeking the relief of declaration and injunction and in alternative for possession. The limitation to file the suit would not lie from the date of wrong revenue entries or on acquiring its knowledge, - 16 - but if the entries in the revenue records are wrong, a party can chose to ignore till a real threat to the title is apprehended merely by the entries made in favour of the defendants made during the settlement in absence of any other act of the defendants, the plaintiffs chose to ignore it thus cause of action did not accrue to the plaintiff for the purpose of Article 58 and the Schedule in the Limitation Act, but the dismissal of the earlier suit filed by defendants as withdrawn on 13.6.90 posed the actual threat of dispossession to the plaintiff. Thus, the suit filed on 29.6.90 by the plaintiff was within time, as he apprehended to be real threat to his rights and is covered under Article 58 of the Limitation Act and also the defendants had taken the plea of adverse possession, even for alternative relief for possession of the suit land, the limitation is 12 years and the suit filed by the plaintiff is within time. 22. Thus, for the aforesaid reasons, appeal filed by the defendants fails. The substantial questions of law are accordingly answered and the appeal is accordingly dismissed. 23. Parties are left to bear their own costs. September 22, 2010 (Surinder Singh), (Pds) Judge