IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 62/2010 Reserved on: 26.2.2011 Decided on:30.3. 2011 _____________________________________________ Chandu Ram. …Appellant. Versus Jagat Ram . …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Dalip K. Sharma, Advocate. For the Respondent: Mr. Ashok Sharma, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 19.3.2009 rendered by the learned Additional District Judge, Fast Track Court, Hamirpur in Civil Appeal No.81 of 2001 RBT 63 of 2004. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for permanent prohibitory injunction and in the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 alternative he has prayed for possession by way of demolition of the structure. According to the plaintiff, the land comprised of Khata No. 182 min, Khatauni No. 436 min, Khasra No. 2646/1925 measuring 118-10 square meters, according to the Jamabandi for the year 1991-92 (hereafter referred to as ‘suit land’), is owned and possessed by him. According to him, appellant-defendant (hereinafter referred as ‘defendant’ for convenience sake) was stranger to the suit land and has no right, title and interest over the same. According to the plaintiff, defendant was bent upon to dispossess him from the suit land. Defendant has been interfering with his possession. Cause of action, according to the plaintiff, has arisen to him in the year 1995 when the defendant started digging the suit land and collected construction material over the same. The suit was contested by the defendant. According to the defendant, he was the owner of the land adjacent to the suit land. He has claimed that he has obtained demarcation of his land. The demarcation was confirmed by AC-II Grade. The trial court framed issues on 20.2.1996. Suit filed by the plaintiff was decreed by the learned Sub Judge 1st Class on 31.8.2001. Defendant was restrained from interfering or raising any construction over the suit land and decree for mandatory injunction was also passed in favour of the plaintiff 3 and against the defendant. Defendant was directed through mandatory injunction to demolish the construction raised by him over portion of the suit land comprising Khasra No. 2646/1925/1 as reflected in Aks Shazra Ex.PW-2/B at point ‘JKL’ to the extent of 4 square meters and to handover the vacant possession of this land to the plaintiff, within the period of three months. Defendant preferred an appeal before the Additional District Judge, Fast Track Court, Hamirpur. The Additional District Judge dismissed the appeal on 19.3.2009. Hence, the present Regular Second Appeal. 3. This Regular Second Appeal was admitted on substantial questions of law No. 2 and 3 on 22.11.2010. 4. Mr. Dalip K. Sharma has strenuously argued that both the courts below have not considered the well settled principles of law. According to him, both the courts below have erred in law by not placing reliance on documents Ex.PW-5/A, PW-5/B and PW-5/C. He has further argued that the judgments were not in accordance with order 20 rule 5 of the Code of Civil Procedure. 5. Mr. Ashok Sharma has supported the judgments and decrees passed by both the courts below. 6. I have heard the learned counsel for the parties and have perused the record carefully. 4 7. Since both 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. 8. Plaintiff has appeared as PW-1. He has deposed that defendant was raising wall and house over the suit land. It is in these circumstances, he instituted a suit against the defendant. Defendant was raising construction despite the stay granted by the Court. He further deposed that the land was demarcated by Dile Ram (PW-2). The demarcation was carried out in presence of both the parties. 9. PW-2 Dile Ram, Kanungo has deposed that he was appointed as Local Commissioner by the Court. He demarcated the suit land and has placed on record report Ex.PW-2/A, tatima Ex.PW-2/B and field book Ex.PW-2/C. He has also placed on record the statements of parties Ex.PW- 2/D. He has also recorded the statements of plaintiff and defendant Ex. PW-2/E and PW-2/F, respectively. According to him, he demarcated the land as per Aks Shazra and Musabi, which was shown by the parties on the spot. According to him, the boundary wall had been constructed by defendant Chandu Ram. He further stated that he has shown encroachment on the Aks Shazra prepared by him on the 5 spot. He has denied the suggestion that the boundary wall has been constructed by defendant beyond the place where he has shown encroachment. According to him, boundary wall was raised 5-6 months back. He has also categorically deposed that the construction has been carried out in Khasra No.2646/1925/1. This land belongs to the plaintiff. According to him, the demarcation was carried out strictly as per the instructions issued by the Financial Commissioner and as per the Rules and orders of the High Court. He has also stated that he has mentioned in his report that Chandu Ram was not satisfied with the demarcation. 10. Defendant has examined as many as six witnesses. Defendant has appeared as DW-1. According to him, Kanungo demarcated the land twice and Naib Tehsildar also demarcated the land. In the demarcation conducted by the Revenue Officers, the same boundaries were found. In appeal, Tehsildar visited the spot and he also found the same boundary marks. He has further stated that the report of Local Commissioner was wrong. According to him, plaintiff had accepted the demarcation given by the Naib Tehsildar and boundary wall was constructed by him after the demarcation given by the Naib Tehsildar. 6 11. DW-2 Devi Dass has supported the version of DW-1. According to him, the land was demarcated twice. First demarcation was given by Kanungo and second demarcation was given by Tehsildar. The defendant has constructed a boundary wall over the suit land. He has also constructed a bath room. However, he has stated that he was not present on the spot when the Local Commissioner visited the spot. 12. DW-3 is Jeet Ram. He has also supported the version of DW-2 and DW-3. According to him, the suit land was demarcated 2-3 times. Defendant has put boundary wall after the demarcation and he has left his space and constructed his house on his own land. 13. DW-4 is Jaswant Singh. According to him, the suit land was demarcated 2-3 times in his presence. He was not present when the suit land was demarcated by the Local Commissioner. He did not know the time when the boundary wall was constructed. 14. DW-5 Hari Chand has deposed that he demarcated the land and submitted his report Ex.DW-5/1. He has placed on record statement of defendant Ex.DW-5/B. He supported the report of Tehsildar. According to him, the 7 Tehsildar also visited the spot. He has also prepared Aks Shazra on the spot Ex.DW-5/C. 15. DW-6 Dhian Chand has also deposed that Tehsildar visited the spot and demarcated the land and Kanungo and Patwari were also present on the spot. This is the entire evidence led by the parties. 16. Mr. Dalip K. Sharma has vehemently argued that both the courts below could not take into consideration the report Ex.PW-5/1 prepared by Hari Chand, Field Kanungo. He has also contended that till the report Ex.DW-5/1 was not set aside, the Local Commissioner could not be appointed to prepare fresh report. There is no merit in the contention of Mr. Dalip K. Sharma, as report Ex.DW-5/1 pertains to Khasra Nos. 2647/1925 and 2649/1925. The suit land is bears Khasra No. 2646/1925. In view of this, both the courts below have rightly ignored report Ex.DW-5/1, ExPW-5/B statement of the defendant, prepared during the preparation of report Ex.PW-5/1 and Aks Shazra Ex.PW-5/C. 17. Now, the Court will look into the report relied upon by the courts below. PW-2 Dile Ram was appointed as Local Commissioner. He has furnished the report Ex.PW-2/A, Aksh Shazra Ex.PW-2/B and field book Ex.PW-2/C. He has recorded the statements of defendant and plaintiff Ex.PW-2/E 8 and Ex.PW-2/F, respectively. This report pertains to only Khasra No.2646/1925. The demarcation has been carried out as per the instructions issued by the Financial Commissioner and as per the Rules and Orders of the High Court. He has visited the spot on 18.12.1998. He has found that the defendant has encroached upon 4 square meters land. This has been shown in Aks Shazra Ex.PW-2/B at point ‘JKL’. The trial court has decided issues No.1 and 2 in favour of the plaintiff and against the defendant. The trial court had framed the issues strictly as per the pleadings of the parties. He has given findings on both the issues by discussing the entire evidence. Thus, there is no merit in the submission of learned counsel for the appellant that the courts below have not given the findings on each issue. The parties have led their respective evidence and they knew their rival contentions. The first appellate court has upheld the judgment of the trial court by a detailed judgment. The first appellate court has also come to a right conclusion that Ex.PW-5/1 did not pertain to the suit land. 18. The defendant had argued before the first appellate court that the demarcation was not carried out in accordance with law. This point has already been discussed in depth, hereinabove. The defendant has failed to point out 9 any infraction of law by the Local Commissioner while demarcating the suit land. The Local Commissioner had recorded the statements of the parties. He had taken the Karukans as per Mausabi and Aks Shazra. He had found the encroachment of land to the extent of 4 square meters. It is also evident from the Zimini order dated 27.10.1998 that the application under order 26 rule 9 of the Code of Civil Procedure preferred by the plaintiff was not opposed by the defendant, as per separate statement of the learned counsel for the defendant. Thus, the defendant is estopped from raising plea that the Local Commissioner could not be appointed without getting the earlier report set aside. 19. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same is dismissed. . There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 30.3. 2011 *awasthi*