IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 197 of 2002. Reserved on: 15.11.2011. Decided on: 25.11.2011. ______________________________________________ Roshan Lal. … Appellant. Versus Sarwan Singh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the Respondents : Mr. K.D. Sood, Advocate with Mr. Navlesh Verma, Advocate for respondents No.1 and 2. None for respondent No.3. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Hamirpur in Civil Appeal No.121 of 1994, dated 12.2.2002. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. Material facts necessary for adjudication of this regular second appeal are that the appellant/plaintiff (hereinafter referred to as”the plaintiff” for convenience sake) filed a suit for permanent prohibitory injunction and in the alternative for possession of the suit land by demolition of super structure raised thereon against the respondents/defendants (hereinafter referred to as “the defendants” for convenience sake). The plaintiff claims himself to be owner in possession of the land entered in Khata No.26, Khatauni No.28, Khasra No.547/325 measuring 29 Kanals 18 marlas situate in village Darbsai, Tappa Ugialta, Tehsil and District Hamirpur. According to him, he has exchanged in the year 1977 his share of 9/598 out of the land in dispute with Puran Chand and mutation No.159 in this behalf was attested on 10.1.1978. According to him, the land remained joint. In partition proceedings Puran Chand got his share separated and sold the same to defendant No.1, Sarwan Singh. According to him, after partition no demarcation was carried out on the spot. The defendants started raising construction forcibly over the suit land, particularly on the western side of the suit land adjoining to the road. He requested the defendants not do so, but of no avail. It is in these circumstances, the plaintiff has filed the suit against the defendants. 3. The suit was contested by defendants No.1 and 2. According to them, the plaintiff has no enforceable cause of action - 3 - against them since the construction raised by them is over Khasra No.547/325/1 measuring 9 marlas of the suit land. According to the defendants, the suit land was not joint as the same already stood partitioned. Mutation No.219 also stood attested in this behalf. The land bearing Khasra No.547/325/1 measuring 9 marlas has been acquired by defendant No.1 by way of sale and construction was raised on the land purchased by him. 4. Replication was filed by the plaintiff. The learned trial court framed the issues. The suit of the plaintiff was decreed by the learned Sub Judge 1st Class (II), Hamirpur vide judgment dated 30.8.1994. Defendants No.1 and 2 preferred an appeal before the learned District Judge, Hamirpur. He allowed the same on 12.2.2002 and the judgment and decree passed by the learned Sub Judge 1st Class (II), Hamirpur, dated 30.8.1994 was set aside. Hence, this regular second appeal. 5. The regular second appeal was admitted on the following substantial question of law on 22.5.2002:- 1. Whether the District Judge below has wrongly rejected the evidence in the form of report of Local Commissioner Ext.LC-1 and tatima attached thereto Ext.LC-2 where under it was revealed that the respondents-defendants had encroached upon the suit land during the pendency of the suit without challenging the correctness and validity of said reports and thereby reversing the findings of the trial Court decreeing the suit? - 4 - 2. Whether the learned District Judge has committed grave procedural irregularity in putting reliance on Exts. DA to DC placed on record by way of additional evidence by respondents-defendants in the trial Court without affording opportunities to appellant- plaintiff and the said documents are erroneous and perverse by ignoring the reports of the Local Commissioner Exts. LC-1 and LC-2? 3. Whether the learned District Judge has committed illegality and irregularity in reversing the judgment and decree of the trial Court by denying the relief of permanent as well as mandatory injunction to the appellant-plaintiff in view of the fact that the respondents-defendants have encroached upon the land allotted to the appellant-plaintiff during the pendency of the suit? 6. Mr. Bhupender Gupta, learned Senior Advocate assisted by Ms. Charu Gupta, learned counsel for the plaintiff has supported the judgment and decree dated 30.8.1994 passed by the learned trial court. He then contended that the learned first appellate court has misread and misconstrued the oral and documentary evidence. 7. Mr. K.D. Sood with Mr. Navlesh Verma, learned counsel for defendants No.1 and 2 has supported the judgment and decree passed by the learned first appellate court, dated 12.2.2002. - 5 - 8. I have heard learned counsel for the parties and gone through the pleadings as well as record carefully. 9. Since all the substantial questions of law are interlinked and interconnected, they are taken up together for determination to avoid repetition of discussion of evidence. 10. Plaintiff has appeared as PW-1. He has admitted in clear terms that he has exchanged 10 marlas of land with Puran Chand. Puran Chand sold 9 marlas of land to Sarwan Singh. He has admitted in cross-examination that the suit land was already partitioned and mutation to this effect also stood attested. According to him, the dispute was only qua 1 marla of land. 11. PW-2, Puran Chand has admitted that 9 marlas of land was sold to Sarwan Singh. According to report Ex.DW-5/A, the construction work was in progress on 6.11.1991 when DW-5, Dhian Singh had carried out the demarcation of the land of defendant No.1. The suit was filed on 22.11.1991. 12. According to Tulsi Ram, DW-2, he has laid shuttering and the slab was laid on the newly constructed house on 20.11.1992. Shri Milkhi Ram, DW-3 has stated that the construction of the house was carried out by defendant No.1 before November, 1991. According to him, only slab was laid on 20.11.1991. DW-4 has also supported the version of DW.2 and DW.3. - 6 - 13. The partition proceedings had been finalized as per order of Assistant Collector 1st Grade, Hamirpur, dated 30.7.1986, Ex.DA. The land allotted to the plaintiff finds mention at Sr. No.2 of the order and denoted by Khasra No.547/325/2. The land of Puran Chand was mentioned at Sr. No.3 and denoted by Khasra No.547/325/1. The details of Khasra Nos. find mention in field book Ex.DC. It is 9 marlas of land which formed part of Khasra No.547/325/1, The total measurement of Khasra No.547/325/1 was 7 kanals 1 marlas. The plaintiff has been allotted Khasra No.547/325/2 and Puran Chand was allocated Khasra No.547/325/1 measuring 9 marlas. The partition was given effect from the crop of Khariff, 1986. 14. The Local Commissioner appointed by the learned trial court has found the encroachment in the shape of construction of house and stacking of debris on Khasra No.547/325/2 measuring 7 marlas and Khasra No.547/325/1 measuring 1 marla as per tatima Ex.LC-2. The defendant, Sarwan Singh has purchased only 9 marlas of land from Puran Chand. The report of Local Commissioner was confirmed by the learned trial court on 30.8.1994 vide Ex.LC-1 and statements of parties recorded vide Ex.LC-3. Ex.DW-5/A is the demarcation report qua land bearing Khasra No.547/325/1 measuring 9 marlas prepared by DW-5, Dhian Singh, Kanungo pursuant to the orders of Assistant Collector 1st Grade, dated 6.11.1991. DW-5 has demarcated the land on - 7 - spot and found that the construction has been raised over 9 marlas of land belonging to defendant No.1, denoted by Khasra No.547/325/1. He has also taken into consideration the objections raised by the plaintiff. The land measuring 9 marlas bearing Khasra No.547/325/1 was mutated in the name of defendant No.1. Ex.DW-5/A is in conformity with the entries in order Ex.DA and field book Ex.DC. Even as per Ex.P-1, copy of jamabandi for the year 1985-86, defendant No.1 has purchased the land comprising of Khasra No.547/325/1 to the extent of 9 marlas and mutation of sale as mutation No.225 stands duly sanctioned on 16.11.1991. It is in these circumstances that learned first appellate court has over looked Ex.LC-1 and Ex.LC-2, prepared by the Local Commissioner. Ex.DA to Ex.DC have been duly proved by the defendants, however, the same were overlooked by the learned trial court. According to these documents, the suit land already stood partitioned and subsequently mutations were also attested. 15. It is evident from the observations and discussions made hereinabove that the defendant Sarwan Singh has purchased land measuring 9 marlas from Puran Chand bearing Khasra No.547/325/1. Even the plaintiff has admitted in his statement that the dispute was only with regard to 1 marla of land. Thus, the findings recorded by the learned trial court that the defendant has encroached upon 8 marlas of land were erroneous. These findings have rightly been set aside by the learned first appellate court. - 8 - 16. Accordingly, for the foregoing reasons, it is held that the learned first appellate court has correctly appreciated the oral as well as documentary evidence led by the parties and has rightly set aside the findings recorded by the learned trial court. Consequently, there is no merit in this regular second appeal and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma), Judge. November 25, 2011. (sck).