IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 475/2001 Reserved on: 5.8.2011 Decided on:12.8.2011 ___________________________________________________ Gurpal Singh. …Appellant. Versus Chaman Lal and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Sanjeev Kuthiala, Advocate. For the Respondents : Nemo. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 9.8.2001 rendered by the learned District Judge, Una in Civil Appeal No.82 of 1996. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondents- plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) instituted a suit for vacant possession of land measuring 0-00-45 hectares marked 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 by letters A, B, C and D shown in the red colour in the site plan by removing super structure comprised in Khewat No. 20 min, Khatauni No. 101 and present Khasra No.527 per Missal Haquiat Settlement for the year 1986-87 situate in village Kuneran, Tehsil Amb, District Una by stating that the plaintiffs were owners, however, appellant-defendant (hereinafter referred to as ‘defendant’ for convenience sake) in the month of June, 1985, allegedly encroached upon the aforesaid land marked by letters A, B, C and D at the back of the plaintiffs when they were out of the village and raised construction by taking undue advantage of the absence of the plaintiffs. The defendant was requested to remove the super structure and to hand over the vacant possession of the suit land marked by letters A, B, C and D to the plaintiff but to no avail. Thereafter, settlement proceedings started in the village and it was mutually agreed between the parties before Tehsildar, Settlement that the defendant would give two marlas of land in lieu of the suit land to the plaintiffs and in that eventuality, the plaintiffs would relinquish their claim over the suit land. The understanding was not given effect to. It is in these circumstances the suit was filed 3 for possession of the suit land by removing super- structure. 3. Defendant contested the suit by filing written statement. On merits, he has alleged that he has raised Abadi in the suit land for the last more than 12 years in the presence of plaintiffs. The raising of the construction was not objected to by the plaintiffs. He has spent a sum of ` 60,000/- for raising the construction. An application was filed before the Tehsildar, Settlement wherein during inquiry, defendant was found in possession by way of Abadi and cultivation and the entries were accordingly corrected in the record of rights. Thereafter, the plaintiffs agreed and requested the Tehsildar that they would not claim anything over the land underneath the construction, if remaining land which is under cultivation, is handed over to them. In view of that compromise, remaining land was handed over by the defendant to the plaintiffs. The allegation that the defendant had agreed to give 2 marlas of land in lieu of the suit land was stated to be wrong. The plea of adverse possession was also taken. The plaintiffs filed replication. Issues were framed by the trial court on 8.9.1992. Trial Court decreed the suit for possession on 21.6.1996 for possession of land measuring 0-00-45 4 hectares marked by letters A, B, C and D shown in red colour in site plan by removing super structure shown in Ex.PW-1/A comprised of Khewat No.20 min, Khatauni No. 101 and present Khasra No.527 per Missal Haquiat Settlement for the year 1986-87 situate in village Kuneran, Tehsil Amb, District Una with costs. Defendant preferred an appeal before the District Judge, Una. He dismissed the same on 9.8.2001. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether a person who has relinquished his claim with respect to property in dispute can subsequently file a suit for the purpose of possession on the ground that he is the owner and whether the principle of estoppel would apply against him? 2. Whether in the matter of demolition of construction where the plaintiff is guilty of delay and acquiescence, the relief of mandatory injunction for possession ought to be granted and whether an award of compensation by way of damages can be given for the injuries caused or caused to be done? 3. Whether the presumption of truth attached to the revenue record stands rebutted/repudiated, more so when the revenue record in its column of classification denotes the land as vacant land and in fact on the admitted part of the parties the land is classified to be Abadi and in case it is Abadi whether there would be any Khasra number given to Abadi within the Laldora? 5 4. Mr. Sanjeev Kuthiala has strenuously argued that since the plaintiffs had relinquished their claim with respect to property, they were estopped from filing the suit. He further pleaded that the plaintiffs were not entitled to decree of possession due to their conduct and acquiescence. 5. I have heard the learned counsel for the defendant and have perused the records 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. As far as the plea of adverse possession is concerned, the defendant has not led any evidence to prove this plea. Rather, learned counsel appearing on behalf of defendant has given up this plea before the learned trial court. 8. Defendant has appeared as DW-1. According to him, the construction was raised by him 15-16 years back. He had started paying the house tax from 1985. He has admitted categorically that he came to know during settlement that the suit land is owned by the plaintiffs. 6 9. DW-2 Vijay Singh has deposed that the construction was raised by the defendant 15-16 years back. DW-3 Bir Singh has also deposed that the construction was raised by the defendant 15-20 years back. According to these witnesses, plaintiffs had not raised any objection. However, surprisingly, neither DW-1 nor DW-2 or DW-3 has given the date, month and year when the construction was raised. DW-2 and DW-3 were not aware that plaintiffs were away when the construction was raised. Defendant has not examined mason Parkash Chand, who according to him, has constructed the house. It is evident from the statements of DW-1 to DW-3 that the house was constructed somewhere in the year 1985. In case the house was constructed by the defendant before 1985, he would have started paying the house tax before that period. 10. It is evident from the record of rights that possession of the defendant was recorded by the order passed by Naib Tehsildar on 21.8.1987 in case No. 143/87. In case he was in possession of the suit land before 1979, the entries should have been either in his name or in the name of his father. The defendant has taken a specific plea that the plaintiffs had agreed to 7 relinquish their claim over the suit land underneath the constructed house, in case they were compensated. Though defendant has deposed that this understanding was adhered to, however, there is no evidence to prove this fact. As far as plea of estoppel and acquiescence is concerned, the defendant has not proved the same. The defendant has also not led any evidence to the effect that plaintiffs knew about the construction. Case of the plaintiffs is that when they were away to Lucknow, the defendant has raised the construction. DW-1 and DW-2 could not narrate how they came to know that the plaintiffs have not raised any objection when the construction was raised by the defendant. Defendant has not led any tangible evidence to establish by producing any receipt of the construction material purchased by him while raising construction, as claimed by him 15-16 years back. Thus, it is conclusively held that the construction has been raised by the defendant in the month of June, 1985 and not in the year 1979 as pleaded by him. 11. As far as substantial question of law No.3 is concerned, no foundation was laid by the defendant at the time of filing of the written statement nor any evidence was led. Thus, this issue cannot be permitted 8 to be raised for the first time in this Regular Second Appeal. 12. Accordingly, in view of the observations and discussions 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. (Justice Rajiv Sharma), Judge. 12.8. 2011 *awasthi*