IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. S.A. No. 1328 of 2001 Prabandhak National Woven Sacks Private Ltd. Sitarganj .. Defendant/Appellant. Versus Sadhu Singh .. Plaintiff/Respondent. Mr. Alok Mehra, holding brief of Mr. Manoj Tewari, learned counsel for the appellant. Mr. B.D. Kandpal, learned counsel for the respondent. Dated: 29-7-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 100 C.P.C. has been preferred against the judgment and decree dated 5- 5-2001, passed by Additional District Judge/ III F.T.C., Nainital, in C.A. No. 1 of 1997, arising out of the judgment and decree dated 12-12-96, passed by Civil Judge (J.D.), Khatima, District Nainital, in O.S. No. 62 of 1992. 2- The brief facts of the case, are that plaintiff/respondent filed a suit against the defendant/appellant for permanent injunction before the Civil Judge (J.D.) Khatima, on the ground that he is owner in possession of 3.251 hectare land of Khata Khautani No. 329 and he is paying revenue of Rs. 84.50P. The plaintiff sold out 6 Bighas 8 Biswas land on 16.10.1985, out of total area of the aforesaid plot (8 Bighas and 3 Biswas), and thereafter 1 Bigha 15 Biswas land ( 0.111 hectare) land was left and this remaining land was given Khasra No. 213/1. Again out of this land, 10 Biswas was acquired by the State Government for purpose of Bisti Bypass and the remaining land 1 Bigha 5 Biswas is in possession of the plaintiff. In eastern side of this land, land of defendant is 2 situated, in the west the plot of Lala and in south, there is Bisti Bypass road. According to the plaint allegation on 6.7.92, when the plaintiff went to plough his above land, the defendant stopped him, hence the suit was filed for permanent injunction restraining the defendant to interfere in the peaceful possession of the plaintiff over the remaining land in dispute. 3- The defendant contested the suit by filing his written statement alleging therein that at the time of constructing the Bypass road, the area of plaintiff’s land has reduced considerably as it is necessary to left out 60 feet wide land towards both the sides of the P.W.D. road. The width of the land is too little and its length is spread by side of the road. The plaintiff has sold out the land to the defendant at a price of Rs. one lac leaving the area for constructing his house only. The defendant further alleged that at the time of execution of agreement the land was measured and the area of the remaining land was told to be 6 Bighas 8 Biswas and this area was noted in the agreement at the time of registration of the deed. It is wrong to say that 10 Bighas land was acquired for the construction of road. The measurement of plaintiff’s house is 15 x 50 feet which is in plaintiff’s possession. In the eastern side of plaintiff’s plot there is defendant’s land on which foundation has been laid. Plaintiff’s application for demarcation of the land has been rejected by the S.D.M. Khatima. 4- On the pleadings of parties, the learned Civil Judge (J.D.) has framed the following issues in the suit:- 1- Whether the plaintiff is tenure holder in possession of 1 Bigha 5 Biswas land of Khasra No. 213 situated in village Rampura Sitarganj, Tehsil Sitarganj, District Nainital?. 3 2- Whether there is any effect of the application filed by the plaintiff before the S.D.M. Khatima for demarcation of the land, on the present suit? 3- Whether the plaintiff is entitled to get any relief?. 5- Parties adduced evidence in support of their case. The learned Civil Judge (J.D.) after hearing learned counsel for the parties and considering the material on record, decreed the suit and the defendant was restrained from interfering in the disputed land measuring 1 Bigha 10 Biswas land of plot No. 213/1. 6- Feeling aggrieved, the defendant preferred Civil Appeal No. 1 of 1997, before the Additional District Judge/ III F.T.C. Nainital, who vide impugned judgment and decree dated 5.5.2001 dismissed the same. 7- Now the defendant/appellant has preferred this second appeal before this Court. 8- This Court has admitted this appeal on the following substantial questions of law:- 1- Whether the courts below have erred in law in not considering that one bigha of the land was acquired from the holding of the plaintiff in plot No. 213?. 2- Whether the courts below have erred in law in decreeing this suit particularly, when the boundaries were not well defined in respect of the land in question?. 9- Heard learned counsel for the parties and perused the record. 4 10- Learned counsel for the defendant/appellant has submitted before me that both the courts below have failed to appreciate this fact that the total area of plot No. 213 owned by the plaintiff was 8 Bighas 3 Biswas, out of which 1 Bigha land was acquired by the P.W.D. for construction of road and out of the remaining 7 Bighas 3 Biswas, he sold 6 Bighas 8 Biswas land to the defendant by means of a registered sale deed and as such the total area of land remaining with the plaintiff is only 15 Biswas, yet the courts below granted him relief in respect of 1 Bigha 10 Biswas of land. 11- Learned counsel appearing on behalf of the plaintiff/respondent has made rival contention and submitted that 0.111 hectare (about 1 Bigha 5 Biswa) land of plot No. 213/1 is still in the ownership and possession of the plaintiff/respondent, which has been shown in the Khautani Ext. Ka.1, therefore, the courts below have rightly decreed the suit against the defendant in respect of above disputed land. 12- From perusal of record it reveals that there is no dispute between the parties that the plaintiff/respondent was Bhumidhar of Khasra plot No. 213, total area of which was 8 Bighas 3 Biswa and out of this, 6 Bighas 8 Biswas land was sold out to the defendant by registered sale deed dated 16-10-1985 and thereafter 1 Bigha and 15 Biswas land (0.111 hectare) was left with the plaintiff. There is also no dispute that out of this 1 Bigha and 15 Biswas, some land was acquired by the State Government for constructing Bisti Bypass. The plaintiff Sadhu Singh as P.W.1 has deposed the above fact in his statement on oath. He further alleged that about 5 Biswas land was acquired by the State Government for purpose of Bisti Bypass. The 5 Patwari of the area P.W.2, Mohd. Yasin has been produced before the trial court. He has deposed that name of Sadhu Singh plaintiff is entered on 0.111 hectare land of Khasra No. 213/1. Out of this, 0.31 hectare land has gone in the construction of the road and still .080 hectare is with Sadhu Singh. Copy of Khautani Ext. Ka.1 has been filed on record, which reveals that the plaintiff/respondent is owner of 0.111 hectare land belonging to plot No. 213/1. The further allegation of the defendant/appellant is that the house of the plaintiff is on 15 X 50 feet land, after leaving 60 feet wide land, owned by the P.W.D., in between motor road and the house of the plaintiff. This assertion of the defendant that 60 feet wide land, beyond the road is owned by P.W.D. is not feasible. Generally, the land on both the sides of the road is measured from the middle of the road. Although the Assistant Engineer in his letter dated 21.8.95 paper No. 64-C has mentioned that 1.00 Bigha land was acquired for construction of the motor road, but it apparent that the said land was acquired from Khasra No. 213, whereas the land with the plaintiff belongs to Khasra No. 213/1, after making correction by the Revenue Patwari on the basis of measurements at the spot. The deposition of the Patwari in this respect cannot be disbelieved. It is also important to mention here that the defendant has no where alleged that the area of the land purchased by him from the plaintiff has fallen short and there is also no complaint of the P.W.D. that the plaintiff has encroached upon its land. In the aforesaid circumstances, I do not find any illegally and error of law in the finding recorded by both the courts below while passing the decree in favour of the plaintiff/respondent. The substantial question of law framed at serial No.1 in this appeal is answered in the negative. 6 13- So far as the substantial question of law framed at serial No.2, is concerned, the plaintiff’s case is that there were mends (boundary walls) in his Khasra in question and when the mends were broken he has moved application before the S.D.M. for demarcation. The Amin has done measurement by survey at the spot and has prepared the map. D.W.2, Gulab Chand has also admitted this fact that mends were drawn at the spot and thereafter documents were prepared. Therefore, there is force in the allegation of the plaintiff that the mends were broken by the defendant. Plaintiff also filed the copy of application given to the S.D.M. and documents relating to the proceeding adopted by the S.D.M. which also lends support to the allegation of the plaintiff that there were mends in his Khasra and the same were broken. Both the courts below have recorded categorical finding on this point that the land of the plaintiff/respondent was well defined as it was having mends and the same were broken by the defendant. I am therefore, in full agreement with the above finding of the courts below. 14- In the above facts and circumstances of the case it is held that the courts below have not erred in law in decreeing the suit as the boundary of the land in question was well defined by constructing mends and the same were broken by the defendant. Therefore, the substantial question framed at serial No.2 is also answered in the negative. 15- For the reasons recorded above, the appeal lacks merit and is liable to be dismissed. 7 16- Accordingly, the appeal is dismissed. The judgments and decrees passed by both the courts below are hereby confirmed. (B.C. Kandpal, J.) ISB 8