IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.546 of 2000 Date of decision : June 29, 2010 Union of India and another …Appellants. Versus Mango Ram (dead) through LRs …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Rakesh Jaswal, Advocate. For the Respondent : Mr. Vivek Singh Thakur, Advocate. Surjit Singh, J (Oral) This Regular Second Appeal was admitted on the following substantial questions of law: “1. Whether in the facts and the circumstances of the case the suit was a suit involving a boundary dispute and if so under such circumstances was the learned First Appellate Court right in rejecting the appellant’s application under order 26 rule 9 CPC for appointment of Local Commissioner to demarcate the boundary between the parties? 2. Whether the learned Courts below were not bound to take judicial notice of the fact that in 1927 the railway station in question was under the jurisdiction of Lahore Divisional Office of the then undivided Punjab and in 1947 when the partition of the Country took place the record was left in Lahore and so was no longer available.” 2. Appellants, hereinafter referred to as defendants, have challenged the judgment and decree dated 29th May, 1999 of learned District Judge, whereby Whether reporters of the local papers may be allowed to see the judgment? …2… their appeal against the judgment and decree dated 16th April, 1998 of learned trial Court has been dismissed and decree for possession, passed by the trial Court in favour of respondent Mango Ram (now dead and represented by his LRs), affirmed. 3. Mango Ram, claiming himself to be the owner of Khasra Nos.201 and 202, filed a suit for possession against the defendants, alleging that he had been owner in possession of the suit land and entries were also there in his favour, in the revenue papers, till the year 1982-83, when consolidation took place in the village and the suit land was entered in possession of the defendants. It was stated that after the entry appeared in their favour, defendants forcibly occupied the suit land and constructed a few Railway quarters thereon. It was also alleged that the defendants were required to vacate the suit land in the year 1983 but to no avail and then a notice, under Section 80 of the Code of Civil Procedure, was issued in the year 1994 and when there was no response to the notice, suit was filed. 4. Defendants contested the suit and stated that Railway Line was laid in the year 1927-28 and the Railway Station was set up in the village and servant quarters were constructed, at the time when the Railway Line was constructed. It was stated that the quarters had been constructed on acquired land, but the record of acquisition …3… was not available, as in the year 1927-28, the area, in question, was under the control of Lahore Division and the record was supposed to be at Lahore. 5. Trial Court came to the conclusion that as per entry in the Jamabandi for the year 1975-76, defendants were not in possession nor were there any quarters on the suit land and, therefore, defendants’ plea that the quarters were constructed on the suit land in the year 1927-28 was unacceptable. Consequently, the suit was decreed. Appeal was filed by the defendants in the Court of District Judge, which stands dismissed. 6. I have heard the learned counsel for the parties and gone through the record. 7. As per Jamabandi for the year 1975-76, copy Ex. P-8, prior to consolidation, plaintiff Mango Ram and his brother Sadhu Ram were recorded as owners to the extent of 1/3rd share of land bearing Khasra Nos.219 and 221, both measuring 3 Kanals 14 Marlas, i.e. equivalent to about 1420 square metres. This land was not in possession of plaintiff Mango Ram or his brother Sadhu Ram, but in possession of a third co-owner, named Sai Dass, who, besides being a mortgagee under the plaintiff and his brother Sadhu Ram, was also recorded as non-occupancy tenant under them, on payment of rent, in kind. Thereafter, consolidation took place and in the course of consolidation, out of the total 1420 square metres (approximately) area of Khasra …4… Nos.219 and 221, as entered in the Jamabandi for the year 1975-26, copy Ex. P-8, 466 square metres area was found to be under the quarters of Railways and so in the column regarding name of the person in possession, entry “Indian Railways” was made. This is clear from Misl Hakiat for the year 1982-83, copy Ex. P-7. Rest of the area, measuring a little more than 950 square metres, appears to have been recorded in the ownership of the plaintiff and the persons recorded joint owners with him in the Jamabandi for the year 1975-76. 8. It appears that since only a portion of old Khasra Nos.219 and 221 was under the quarters of the Railways, plaintiff and his co-owners continued to be shown as owners in the revenue papers, but when consolidation took place, during which procedure for settlement is required to be followed, it was found that a portion of the land was under Railway quarters, entry showing Indian Railways in possession of 466 square metres area, depicted by Khasra Nos.201 and 202, was made. 9. Plaintiff’s plea that the quarters were constructed only in the year 1982-83 is shown to be false from the oral evidence, not only of the defendants but his own evidence. In the plaint, it is alleged that encroachment had been made by constructing a few quarters, but in his deposition as PW-1, plaintiff Mango Ram stated that encroachment had been made by constructing a pucca drain …5… and a few sheds. He did not say that any quarter had been constructed, though in the plaint the allegation is that the encroachment had been made by erecting quarters. 10. DW-1 Surinder Kumar, a Railway employee, stated that all the quarters, on the spot, were old ones and had been constructed during the year 1927-28. He specifically stated that no new construction had taken place on the spot. His testimony to this effect was not subjected to cross-examination and so there should be no reason to disbelieve the same. 11. In view of the abovestated position, the appeal is allowed, impugned judgments and decrees of the two Courts below are set aside and the suit of plaintiff Mango Ram is dismissed. Appeal stands disposed of. June 29, 2010(sd) ( Surjit Singh ), J