IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 348 of 2001. Date of decision: 18.8.2011. Jamal Deen ….. Appellant. Vs. State of H.P. & anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Anand Sharma, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate General. Kuldip Singh, Judge (Oral). This appeal is directed against the judgement, decree dated 28.4.2001 passed by learned District Judge, Chamba in Civil Appeal No. 69 of 2000 affirming the judgement and decree dated 31.5.2000 passed by learned Senior Sub Judge, Chamba in Civil Suit No. 339 of 1996. 2. The facts in brief are that appellant had filed a suit for declaration to the effect that he is owner in possession of land comprised in khasra No. 853/835/1 measuring 3 bighas 4 biswas situated in village Biana, Tehsil Salooni, District Chamba, which was granted to him as Nautor by Tehsildar Churah on 23.2.1976. The mutation Nos. 139 and 203 were wrongly decided by the Assistant Collector 2nd Grade on 2.6.1980 and 23.7.1990 (sic). He has also prayed decree of possession of land measuring 3 bighas 4 biswas Whether the reporters of the local papers may be allowed to see the Judgment? …2… out of khasra No. 853/835 and for recovery of Rs.50,000/- being the valuation of the house consisting of three rooms, verandah, which was demolished on 27.6.1992 in his absence under the orders of Assistant Collector, 2nd Grade, Salooni. 3. The further case of the appellant is that land measuring 3 bighas 4 biswas comprised in khasra No. 853/835/1 was allotted to him as Nautor under the Landless Scheme 1976 by Tehsildar Churah on 23.2.1976. The mutation Nos. 139 and 203 were entered but later on wrongly rejected on 2.6.1980 and 23.7.1990. It is also the case of the appellant that after the allotment of land, he had constructed a house on the allotted land but that was demolished on 27.6.1992 by the respondents under the orders of Assistant Collector, 2nd Grade, Salooni. The appellant has prayed the above reliefs. 4. The suit was contested by the respondents by filing written statement, in which preliminary objections of limitation, jurisdiction, validity of notice under Section 80 CPC, valuation and cause of action were taken. On merits, it has been submitted that land comprised in khasra No. 853/835/1 measuring 3 bighas 4 biswas, Mohal Biana was allotted to the appellant, which is in his possession. The mutation No. 131 was entered by the Patwari, but it was recommended for rejection by the Assistant Collector, 2nd Grade on 2.6.1980. The mutation No. 203 was also entered by the Patwari, but the same was again recommended for rejection by the Assistant Collector, 2nd Grade, Salooni on 23.7.1990 after scrutiny of record. 5. It is also the case of the respondents that consequent upon initiating proceedings for cancellation of Nautor land, the …3… appellant had encroached upon the adjoining land comprised in khasra No. 853/835/2 measuring 5 bighas. The Assistant Collector, 1st Grade, Salooni vide order dated 4.4.1991 ordered dispossession of the appellant from the encroached land, Field Kanungo, Manjeer on 27.6.1992 with the help of police in the presence of the wife of appellant and other local people dispossessed the appellant from the encroached land. The house of the appellant situated on Nautor land was not demolished. Hence, the claim of the appellant for recovery of Rs.50,000/- on account of demolition of his house was denied. 6. The appellant filed replication and reiterated his case. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to a decree for possession of the suit land as alleged? OPP. 2. Whether the plaintiff is entitled to recover a sum of Rs.50,000/- as damages from the defendants as alleged? OPP. 3. Whether the suit is barred by limitation? OPD. 4. Whether the court has no jurisdiction to entertain the suit? OPD. 5. Whether no valid notice has been served upon the defendants? If so, what effect? OPD. 6. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? If so, what is proper valuation? OPD. 7. Whether the plaintiff has no cause of action? OPD. 8. Relief. The issues No. 1 to 3, 5 and 6 were answered in negative and issues No. 4 and 7 in affirmative and the suit was dismissed on 31.5.2000 by the Senior Sub Judge, Chamba. In appeal, the learned District Judge …4… on 28.4.2001 has affirmed the judgement, decree dated 31.5.2000, hence second appeal, which has been admitted on the following substantial question of law:- Whether the courts below have misread and misinterpreted the oral and documentary evidence on record to dismiss the suit of the appellant? 7. I have heard Mr. Anand Sharma, Advocate, learned counsel for the appellant and learned Additional Advocate General appearing on behalf of the respondents and have also gone through the record. It has been submitted by the learned counsel for the appellant that two courts below have misread and misinterpreted the evidence on record in dismissing the suit of the appellant. The house of the appellant constructed on the allotted land has been illegally demolished by the respondents, therefore, the appellant is entitled to recover Rs.50,000/- from the respondents. He has also submitted that in view of evidence on record the appellant is also entitled to other reliefs as prayed in the suit. The learned Additional Advocate General has submitted that the two courts below have concurrently recorded findings of facts against the appellant, and therefore, the appellant is not entitled to the reliefs prayed. The re-appreciation of evidence is not permissible in second appeal. It is not a case of misconstruction and misreading of evidence. She has prayed for dismissal of the suit. 8. The respondents in the written statement have repeatedly stated that land comprised in khasra No. 853/835/1 measuring 3 bighas 4 biswas was allotted to the appellant and he is …5… in possession of the said land. The appellant in the meantime, encroached upon the land comprised in khasra No. 853/835/2 measuring 5 bighas and from the said encroached land he was dispossessed in presence of his wife and other local inhabitants. The house constructed by the appellant on the allotted land was not demolished. In view of stand of the respondents that appellant is in possession of khasra No. 853/835/1 measuring 3 bighas 4 biswas, which was allotted to him, the appellant is not entitled to a decree of possession of land comprised in khasra No. 853/835/1 measuring 3 bighas 4 biswas. In so far as the claim of the appellant with respect to demolition of his house constructed over khasra No. 853/835/1 is concerned, the stand of the respondents is that said house was not demolished by the respondents. 9. The appellant has appeared as his own witness as PW 1. In his statement, he has stated that in the year 1992 in the month of June, he was admitted in the hospital at Chamba and at that time Tehsildar, Kanungo and police came on the spot and demolished his house. He has stated that his wife and children were on the spot. In the plaint itself, the appellant has stated that on 27.6.1992 at the time of demolition of his house he was not on the spot, rather the house was demolished in his absence. The appellant has not examined his wife in the case. PW 2 Raj Singh has only produced some record. He has stated nothing about the demolition of the house of appellant. PW 3 Brij Lal has also not stated regarding the demolition of the house. PW 4 Kishan Lal has stated that he worked as mason in the house constructed by the appellant …6… on Nautor land in the year 1976. This witness has also not stated about the demolition of the house. PW 5 Budhi Singh has stated that the house was not demolished in his presence. This is the entire evidence, which has been led by the appellant regarding demolition of the house. 10. On the other hand, from the evidence led by the respondents, it does not emerge that they have admitted that house constructed by the appellant on the allotted land was demolished by them. Ex. PA is copy of mutation No. 139 rejected on 2.6.1980. Ex. PB is copy of mutation No. 203 rejected on 27.7.1990. In the second appeal evidence cannot be re-appreciated. It has not been pointed out at the time of hearing of the appeal that two courts below have recorded the findings on the basis of inadmissible evidence or material evidence, which goes to the root of the case has been ignored. The view taken by the courts below emerges from the evidence on record. In these circumstances, there is no merit in the appeal. The substantial question of law is decided against the appellant. 11. In view of above discussion, the appeal fails and is accordingly dismissed. August 18, 2011. ( Kuldip Singh ), (Hem) Judge.