1 1IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 89 of 2002. Date of decision: 15.09.2011. Kaushalya & Ors. .…Appellants. Versus Ajmer. ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondent : Mr. J.L.Bhardwaj, Advocate . Kuldip Singh , Judge (Oral). This appeal has been directed against the judgment, decree dated 17.11.2001 passed by learned Additional District Judge, Solan, camp at Nalagarh in Civil Appeal No. 23-NL/13 of 2000 modifying judgment, decree dated 14.12.1999 passed by learned Sub Judge, Nalagarh, District Solan, in Civil Suit No. 167/1 of 1996. 2. The facts, in brief, are that Ram Kishan, predecessor, of the appellants had filed a suit for permanent prohibitory injunction, mandatory injunction and possession against respondent regarding land comprised in Khasra No. 164, measuring 1 bigha 11 biswas ,situated in village Rakh Ram Singh, Tehsil Nalagarh , on the ground that he is owner in possession of the suit land. The respondent encroached 2 biswas of suit land and has threatened to raise the construction thereon. The respondent is not handing over the possession despite requests. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 3. The suit was contested by respondent by filing written statement. He has taken the plea that he has not constructed any 'Chhan' over 2 biswas of land as alleged, rather he has constructed 'Chhan' on his own land. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the defendant has raised a Chhan over 2 biswas of the suit land, as alleged? OPP. 2. If issue No. 1 is proved whether the plaintiff is entitled for the relief of mandatory injunction? OPP. 3. Whether this suit is maintainable in the present form ?OPP. 4. Whether the plaintiff has no caused of action? OPD. 5. Relief. The issues No. 1 to 3 were answered in affirmative and issue No.4 in negative and the suit was decreed on 14.12.1999 by the learned trial Court and the suit of the appellants for possession of land measuring 1 bigha 11 biswas comprised in Khasra No. 164 with relief of mandatory injunction directing the respondent to remove construction of 'Chhan' on 2 biswas of land was decreed. 5. In appeal filed by the respondent, learned Additional District Judge on 17.11.2001 while modifying the judgment, decree dated 14.12.1999 of the trial Court has held that appellants herein are not entitled for relief of removal of 'Chhan' on 2 biswas of suit land as the appellants have not filed any site-plan, nor there is any 'aksh-sajra- kistwar' along with demarcation report Ex. PW1/A. However, learned Additional District Judge upheld the relief of possession of suit land. 3 The judgment, decree dated 14.12.1999 was thus modified, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the impugned judgment and decree is the result of misreading,misinterpretation as well as misappreciation of demarcation report Ext. PW1/A and Ext. PA copy of jamabandi for the year 1991-92 as well as Ext. PB copy of khasra- girdawari? 2. Whether the learned lower appellate Court is right in denying relief of mandatory injunction on the ground that the plaintiff having failed to file tatima as well as site plan especially when it was clear from the demarcation report Exhibit PW1/A as well as from the admission of defendant who had admitted the possession of the suit land including the super structure raised thereon? 6. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the appellants that suit is with respect to entire Khasra No. 164 and, therefore, the learned Additional District Judge has erred in modifying the judgment, decree dated 14.12.1999 passed by learned trial Court on the ground that 'Chhan' constructed on the suit land by respondent has not been identified. He has submitted that once decree of possession of the entire suit land has been upheld, then there is no question of identification of any portion of the suit land by way of separate tatima etc. 7. The learned counsel for the respondent has supported the impugned judgment, decree and has submitted that no fault can be 4 found with the impugned judgment, decree inasmuch as appellants have prayed mandatory injunction for 2 biswas of land out of the suit land which has not been identified by them. He has prayed for dismissal of the appeal. 8. The substantial questions of law No. 1 and 2 are inter- connected, therefore, both of them are taken up together for determination. The trial Court has decreed the suit for possession of land measuring 1 bigha 11 biswas comprised in Khasra No. 164 along with relief of mandatory injunction directing the respondent to remove 'Chhan' on land measuring 2 biswas. It has come on record that respondent has constructed 'Chhan' on 2 biswas of land which is part of Khasra No. 164. The defence projected by respondent that 'Chhan' has been constructed by him on his own land has not been accepted by both the Courts below. 9. The learned Additional District Judge has declined the relief of mandatory injunction to the appellants on the ground that 2 biswas of land out of the Khasra No. 164 measuring 1 bigha 11 biswas has not been separately identified by the appellants by filing tatima nor this 2 biswas of land has been separately identified in the demarcation report. The demarcation report is not relevant in view of controversy involved in the present matter. The appellants had filed the suit with respect to complete Khasra No. 164 and not a part of Khasra No. 164. The trial Court has granted a decree for possession of entire Khasra No. 164 in favour of the appellants. The trial Court has also granted the relief of mandatory injunction directing the respondent to remove of his 5 own 'Chhan' constructed by him on 2 biswas of land which is part of Khasra No. 164. 10. The respondent has assailed the judgment, decree dated 14.12.1999 passed by the trial Court in the lower Appellate Court by taking the plea that the decree of mandatory injunction cannot be executed inasmuch as 2 biswas of land out of Khasra No. 164 has not been identified. This plea is not available to the respondent when decree for possession has been passed by the trial Court in favour of the appellants of whole Khasra No. 164 and which decree has been upheld by the learned lower Appellate Court also. It appears the respondent is adamant not to take the benefit of the decree granted by the trial Court by giving him chance to remove the 'Chhan' of his own. 11. The learned Additional District Judge has erred in returning the finding that 'Chhan' cannot be removed from Khasra No. 164 in absence of tatima and site-plan. This finding of the learned Additional District Judge is un-necessary in view of decree of possession passed by the trial Court of the whole Khasra No. 164 in favour of the appellants and upheld by the learned Additional District Judge. In these circumstances, both the substantial questions of law No. 1 and 2 are accordingly decided in favour of the appellants and against the respondent. 12. In view of above, the appeal is allowed. The judgment, decree dated 17.11.2001 passed by lower Appellate Court are set aside and judgment, decree dated 14.12.1999 passed by trial Court are restored. It is made clear that the appellants shall be entitled to 6 possession of Khasra No. 164, measuring 1 bigha 11 biswas, in addition to decree of mandatory injunction. No costs. ( Kuldip Singh ), September 15, 2011. Judge. (krt)