IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 290 of 2011. Reserved on: 15.07.2011. Decided on: 27.07.2011. _____________________________________________________ Sushma Devi and another. …Appellants. -Versus- Ramesh Chand and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellants : Mr. Satya Vrat Sharma, Advocate. None for the respondents. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 08.04.2011, passed by the learned Additional District Judge, Fast Track Court, Shimla, Camp at Rohru in Civil Appeal No. 18-S/13 of 2009. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellants-plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake) had instituted a suit for permanent prohibitory injunction against the respondents-defendants (hereinafter referred to as “the defendants” for brevity sake). According to the plaintiffs, Jai Singh, father of the defendants, vide exchange dated 06.01.1985, gave the land comprised in Khasra No. 1735 and 1737, situated in Chak Khashdhar, Tehsil Chirgaon to the plaintiffs and since then, they were in its settled possession. According to them, Khasra No. 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - 1738 was the part and parcel of old Khasra number of the plaintiffs, but has wrongly been shown as having been carved out, during the current settlement from Khasra No. 3514. According to them, Khasra No. 1738 alongwith Khasra No. 1728 was in settled possession of the plaintiffs. The cause of action arose to them on 08.01.2006 when the defendants interfered in the suit land. 3. The suit was contested by the defendants by filing written statement. It was denied that plaintiffs were in possession of the land comprised in Khasra Nos. 1728 and 1738. They have denied that Khasra No. 1738 had been carved out during the current settlement from old Khasra number of the plaintiffs, but has wrongly been shown as part of Khasra No. 3514. 4. Plaintiffs have filed the replication. The issues were framed by the learned trial Court on 11.01.2007. The learned trial Court partly decreed the suit by restraining the defendants from causing any sort of interference over the suit land, i.e., land comprised under Khasra No. 1735 and 1737. Plaintiffs preferred an appeal before the learned Additional District Judge, Fast Track Court, Shimla, Camp at Rohru. The same was dismissed on 08.04.2011. Hence, this Regular Second Appeal. 5. Mr. Satya Vrat Sharma, learned counsel for the appellants, on the basis of substantial questions of law framed, has argued that the findings given by both the Courts below are vitiated for non-consideration of relevant and admissible evidence of PW-5, Ex. PW-5/A, statement of defendant No. 1 and Ex. PW- 5/B. According to him, the demarcation Ex. PW-5/A has been correctly carried out on 8th November, 2005 by PW-5 Shri Kali Ram in accordance with law. - 3 - 6. I have heard Mr. Satya Vrat Sharma, learned counsel for the appellants at length. 7. Plaintiff No. 2 Shri Raghubir Singh has appeared as PW-1. According to him, the land comprised in Khasra Nos. 1735 and 1737 was obtained in exchange from the father of defendants Shri Jai Singh in the month of January, 1985. He was also in possession of the land comprised under Khasra Nos. 1728, 1738 and 1718, over which he had planted an apple orchard. The defendants are sons of Shri Jai Singh. They were causing interference over the land comprised under Khasra Nos. 1738 and 1728 which was the part of the suit land. He got the demarcation of the suit land conducted through field Kanungo, Chirgaon. They were found in possession of the land comprised under Khasra No. 1738 and 1728. He further sated that they were generally residing at place Kashdhar situated at a distance of 4-5 Kms. from the suit land. The defendants have taken advantage of this and they have started interfering in the suit land. PW-2 Shri Om Chand and PW- 3 Shri Visham Singh have only stated that boundary of the plaintiffs’ land and defendants had already been settled and they did not know which land was exchanged by the plaintiffs with the defendants’ father. 8. PW-5 Shri Kali Ram has conducted the demarcation on 08.11.2005. He has prepared the report Ex. PW-5/A. According to him, he has recorded the statement of defendant No. 1 Shri Ramesh Chand vide Ex. PW-5/B. In his report, he has mentioned that he found the possession of plaintiffs over Khasra No. 1738 and 1728. In his cross-examination, he has admitted that he has not recorded the statements of plaintiffs and defendants on the - 4 - spot, neither he had conducted the demarcation over the suit land in their presence. Neither any notice was issued to the plaintiffs nor to the defendants. He has also not recorded the statements of parties before fixing three pucca points as per the instructions issued by the High Court and by the Financial Commissioner. His report was never approved by the superior revenue officer. 9. Defendant No. 1 has appeared as DW-1. He has tendered his evidence by way of affidavit. It is recited in the affidavit that his father was deceived by the plaintiffs by exchanging the land of other person comprised in Khasra No. 1744, which in fact belongs to Shri Krishan Lal and Smt. Gautmi Devi with their land Khasra Nos. 1735 and 1737. Their father has never exchanged land comprised in Khasra No. 1728 and 1738 with the plaintiffs. He further deposed that they were not causing any interference in Khasra Nos. 1735 and 1737. In his cross- examination, PW-1 has admitted that he was not owner of land comprised in Khasra No. 1738 and 1728 and Smt. Sushma Devi was only in possession of land comprised in Khasra No. 1735 and 1737. He has further admitted that as per exchange, Ex.–DR, he had given in exchange land comprised in Khasra No. 1744 against the suit land. This land does not belong to him since it was owned by Shri Krishan Lal and Smt. Gautmi Devi. The father of the defendants has issued notice to the plaintiffs. He has brought to their notice that he was deceived since the land of other person comprised in Khasra No. 1744 was exchanged with his land comprised in Khasra Nos. 1735 and 1737 and requested to make corrections. In reply to the notice, plaintiff No. 2 has informed the father of the defendants that this mistake has occurred since he - 5 - was misled by the revenue authorities. It is evident from the copies of Jamabandis for the years 1996-97 and 2003-04, Ex. PW- 1/A and Ex. PW-1/B and Ex. DW-1/D and Ex. DW-1/E that father of the defendants was in possession of Khasra Nos. 1728 and 1738. It is evident from the evidence brought on record by the defendants that in fact, the defendants are in possession of the suit land comprised in Khasra Nos. 1728 and 1738, respectively. There is presumption of truth attached to these entries under Section 35 of the Indian Evidence Act and under Section 45 of the H.P. Land Revenue Act. 10. Mr. Satya Vrat Sharma, learned counsel for the appellants has heavily relied upon Ex. PW-5/A. According to PW-5 Shri Kali Ram, he has carried out the demarcation on 08.11.2005. He has not recorded the statements of plaintiffs and defendants on the spot. He has also not recorded the statements of the parties before fixing three pucca points. He was required to carry out the demarcation as per the instructions issued by this Court and by the Financial Commissioner. It has also not come on the record that the report prepared by the Kanungo was ratified by the superior revenue officer. Moreover, it has not come in the report that the demarcation was carried out as per the last settlement. One of the Khasra numbers to be measured was 2524, however, PW-5 has taken this Khasra number as one of the pucca points. It is also not borne out from the report that the permanent points chained by him and the result was verified and found correct by him as per the record prepared at the time of settlement. The learned first appellate Court has also noticed that in the statement of Ramesh Chand, Ex. PW-5/B, Khasra No. 1738 appears to have - 6 - been inserted later on. In view of the observations and discussions made hereinabove, there is no substantial question of law involved in this Regular Second Appeal and the findings recorded by both the Courts below are on correct appreciation of oral as well as documentary evidence. 11. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge July 27, 2011. (bhupender) - 7 -