IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.211 of 1998. With C.O. No.406 of 1998. Reserved on:14.11.2008. Decided on: 19.12.2008. Chaman Lal & Ors. …Appellants. VERSUS Santosh Kumari & Ors. ….Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants: Mr N.K.Thakur, Advocate. For the respondents: Mr K.D.Sood, Advocate for LRs No.2(a) to 2(e). Kuldip Singh, Judge. This appeal has been directed against the judgment, decree dated 2.5.1998 passed by learned District Judge, Una in Civil Appeal No.83 of 1996 setting aside judgment, decree dated 25.6.1996 passed by learned Sub Judge 1st Class (1), Amb in Case No.374 of 1986. 2. The facts, in brief, are that Baldev Singh and Sant Ram filed a suit for injunction against Chaman Lal and Banarsi Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… Dass regarding land measuring 2 Kanals 19 Marlas comprised in Khewat No.111 min, Khatauni No.191 min, Khasra No.218 village Ladoli, Tehsil Amb, District Una vide Jamabandi 1983- 84. In the alternative, suit for possession in case defendants succeed in taking possession of the suit land during the pendency of the suit and for mandatory injunction for demolition of structure raised by defendants. 3. The pleaded case of Baldev Singh and Sant Ram was that suit land was owned by them and defendants have no right and title on the suit land, but with a view to grab the suit land they threatened to raise construction and had collected some material, in these circumstances the suit was filed. The plaint was amended pleading therein that during the pendency of the suit Banarsi Dass had encroached site A, B, C, D by raising construction shown in red in the site plan, which is part of the suit land and accordingly prayer was also amended and a decree of permanent prohibitory injunction, mandatory injunction and in the alternative decree for possession was made, as prayed in the amended plaint. The defendants No.1 and 2 filed written statement to the amended plaint and took preliminary objection of lack of cause of action and pleaded that they never extended any threats to raise construction on the suit land nor they intend to raise any …3… construction in future on the suit land. The suit has been filed in order to harass defendants No.1 and 2. The portion shown by letters A, B, C, D in site plan is not part of the suit land. The defendants No.1 and 2 had not raised any construction on the suit land. Later on, an application under Order 1 Rule 10 read with Section 151 CPC was filed for impleading Chand Rani as defendant which was allowed on 7.5.1993 and thereafter plaint was again amended by pleading that Banarsi Dass and his wife Chand Rani had encroached site A, B, C, D shown in the site plan by raising construction on the suit land with prayer of permanent prohibitory injunction, mandatory injunction for demolishing and removal of construction on the suit land shown as A, B, C, D in the site plan, restoring the land to its original position and in the alternative suit for possession. The newly added defendant No.3 Chand Rani filed separate written statement in which she took preliminary objections of estoppel, lack of cause of action and limitation. On merits, it was pleaded that no threats were extended to plaintiffs for raising construction on the suit land. She had pleaded that she had purchased land out of Khasra No.486 from Tarlok Singh etc. owners and soon thereafter started construction of her house in presence of plaintiffs, owners of adjoining land. The plaintiffs never raised objection to such …4… construction raised by defendant No.3 on Khasra No.486 before the filing of the suit. She had pleaded that even if a portion of the suit land has come under the house in that case also the plaintiffs are estopped from filing the suit. Later on, Chand Rani died and her minor heirs also filed written statement by pleading more or less the same defence as was taken by Chand Rani. The replications were filed. The learned Sub Judge dismissed the suit on 25.6.1996. Baldev Singh and Sant Ram filed appeal against the judgment, decree dated 25.6.1996 which was allowed by learned District Judge on 2.5.1998. The learned District Judge directed the defendants to hand over vacant possession of land measuring 5 ½ marlas following (sic) part of the land contained in Khasra No.218 vide Jamabandi 1983-84 after demolishing structure built on it, hence this appeal by defendants. In the appeal cross objections No.406 of 1998 have been filed. The original respondents / plaintiffs No.1 and 2 died during the pendency of the appeal and their legal representatives have been brought on record. The appeal has been admitted on the following substantial questions of law:- i) Whether the demarcation carried out by the Local Commissioner in the absence of interested and affected party can be legally sustainable? …5… ii) Whether in the instant case it has been proved by way of documentary evidence that the defendants were neither served nor were present at the time of demarcation, and, what would be its effect in the instant case? iii) What is the effect of mis-interpretation and mis-construction of documents Extds.D.1 to D.4 which negate the claim of the plaintiffs / respondents? iv) Whether the report of the local commissioner Ext.PW-2/J is in consonance with the instructions laid down by the Financial Commissioner for the purposes of demarcation? v) Whether the impugned judgment and decree is vitiated on account of mis- interpretation and mis-construction of oral as well as documentary evidence? vi) What is the legal effect of the demarcation carried out by the local commissioner before impleading such person as a party to the suit and whether such relief can be legally sustainable against such person who was not a party to the suit? …6… 4. I have heard Mr.N.K.Thakur, learned counsel for the appellants, Mr.K.D.Sood, learned counsel for respondents No.2(a) to 2(e) and gone through the record. The learned counsel for the appellants has submitted that Local Commissioner allegedly inspected the spot without notice and in absence of Chand Rani defendant, who was not even party in the suit at the time of inspection and demarcation report Ext.PW-2/J in these circumstances cannot be read in evidence against Chand Rani and her heirs. He has submitted that in case report Ext.PW-2/J is excluded then there is no legal evidence on record in support of the case of the respondents that appellants had raised construction after encroaching their land. He has submitted that construction is old and was raised in presence of respondents which was not objected to by them and even if the construction of appellant is found on a portion of land of the respondents in that case also the respondents are not entitled to restoration of possession of that portion of land which is under the construction on the principle of acquiescence. He has submitted that the learned District Judge has not properly appreciated the material on record and has erred in reversing the judgment and decree of the trial Court. On the contrary, Mr.K.D.Sood, learned counsel for the respondents, has supported the impugned …7… judgment, decree. He has submitted that Local Commissioner’s report was assailed by Chand Rani by way of CR No.30 of 1995 and the Local Commissioner’s report was upheld by this Court in CR No.30 of 1995. He has submitted that the learned District Judge has considered the material on record and appellants have failed to make out any case for interference. He has submitted that respondents have filed cross objections against the judgment, decree to the extent that learned District Judge has not granted the relief to the respondents. SUBSTANTIAL QUESTIONS OF LAW NO.(i),(ii),(iv) & (vi): 5. The substantial questions of law are with respect to the Local Commissioner’s report Ext.PW-2/J and, therefore, they are being disposed of collectively. The Local Commissioner, Ram Rattan Sharma, Retired Consolidation Officer, was appointed by the trial Court vide order dated 9.1.1992. He submitted his report Ext.PW-1/J dated 11.6.1992 read with report Ext.PW-2/M dated 19.7.1992. On 14.1.1993 an application under Order 1 Rule 10 CPC for impleading Chand Rani was filed which was allowed on 7.5.1993. The trial Court rejected the objections against the report of the Local Commissioner and same was confirmed vide order dated 30.9.1994. Chand Rani filed separate …8… objections against the report of Local Commissioner. These objections were considered by the trial Court and were dismissed on 19.1.1995. The order dated 19.1.1995 was assailed in CR No.30 of 1995 and was upheld. The Local Commissioner’s report in view of the order dated 22.9.1995 in CR No.30 of 1995 has obtained finality. The trial Court had noticed order dated 30.9.1994 while dismissing the objections of Chand Rani vide order dated 19.1.1995. In CR No.30 of 1995 the order dated 19.1.1995 was approved as follows:- “I am satisfied that the order is correct as I do not find any illegality or irregularity in the impugned order.” In view of order dated 22.9.1995 of this Court Chand Rani and after her death her heirs cannot be permitted to question the Local Commissioner’s report on the ground that the report cannot be used against them as the same was prepared on the basis of inspection carried out in their absence and without notice to them. In the report Ext.PW-2/J, the Local Commissioner has specifically come to the conclusion that “defendant had encroached upon the land of plaintiffs marked in the site plan with letters A, B, C, D up to extent of 5 ½ marlas.” The objections of the defendants to the Local Commissioner’s report have been rejected by the trial Court. …9… In view of the order dated 22.9.1995 of this Court in CR No.30 of 1995 defendants cannot be heard to say that there is any defect in the Local Commissioner’s report. The substantial questions of law No.(i), (ii), (iv) and (vi) are accordingly decided against the appellants. SUBSTANTIAL QUESTIONS OF LAW NO.(iii) & (v): 6. These substantial questions of law are with respect to mis-construction and mis-interpretation of oral and documentary evidence, therefore, they are being disposed of collectively. The suit land is Khasra No.218. In Jamabandi Ext.P-1 for the year 1983-84 Khasra No.218 is shown in the ownership and possession of Baldev Singh and Sant Ram plaintiffs. The encroached portion is shown in red in site plan Ext.PW-1/A. In Ext.D-3 Misal Haquiat 1987-88 four old Khasra numbers 218 min have been given, Khasra Nos.398, 961, 962 and 963 owned and possessed by Baldev Singh and Sant Ram. In Khasra Girdawari Ext.D-4 Khasra Nos.398, 961, 962, 963 have been shown in ownership of Baldev Singh etc. and in possession of Sant Ram. The Khasra number shown in Ext.D- 1 Misal Haquiat 1987-88 and Ext.D-2 Misal Haquiat are not part of the suit land. The suit has been filed on the basis of Jamabandi 1983-84 Ext.P-1 and appellants cannot take benefit of area of land shown in Ext.D-3 Misal Haquiat 1987-88. It is …10… well known that during settlement changes take place while preparing new Khasra numbers. The encroachment of appellants on the suit land has been established by Local Commissioner’s report Ext.PW-1/A. The appellants never denied the ownership of Khasra No.218 in favour of respondents. They have denied that they had encroached any part of the suit land. It is the case of the appellants that Chand Rani had purchased land out of Khasra No.486 on which she constructed her house. In the Local Commissioner’s report Ext.PW-2/J and site plan Ext.PW-1/A the construction of the appellants was found on suit land. The appellants have miserably failed to substantiate their plea of estoppel against respondents by legal evidence. The learned District Judge has rightly appreciated the material on record. The appellants have failed to point out in what manner the learned first appellate Court has misconstrued and misinterpreted the oral and documentary evidence on record. The findings returned by learned District Judge are based upon the appreciation of evidence which cannot be re-appreciated in second appeal. It is not the case of the appellants that inadmissible evidence has been considered by the learned District Judge or material evidence has been ignored. In these circumstances, no fault can be found with the findings returned by learned District …11… Judge to the effect that the appellants have encroached the suit land while making construction. Accordingly, substantial questions of law No.(iii) and (v) are decided against the appellants. CROSS OBJECTIONS NO.406 OF 1998: 7. The respondents have filed the cross objections. The cross objections have not been ordered to be heard on any substantial question of law, even there is no order of hearing of the cross objections with the appeal but without going into the technicalities the fact remains that in the cross objections no substantial questions of law have been framed nor cross objections have been admitted on any substantial question of law. In RSA No.643 of 2000 titled Anil Mohil & Another versus Bikram Singh Thakur & Others, a learned Single Judge of this Court on 4.4.2003 has held as follows:- “(a) Cross objection under Order 41 Rule 22, Code of Civil Procedure, in an appeal against an appellate decree can be maintained only if a substantial question of law is raised therein; (b) Since a cross objection is nothing by in the nature of a cross appeal, the stringent conditions embodied in Section 100, Code of Civil Procedure, shall be applicable thereto. The cross objection will precisely state the substantial question(s) of law arising therein; …12… (c ) The cross objection will be admitted only if the High Court is satisfied that the case involves substantial question(s) of law; and (d) On such admission, the High Court has to formulate the substantial question(s) of law arising therein and the cross objection shall be heard only on the question(s) so formulated.” The learned District Judge has granted the relief of possession to respondents after demolition of the structure on the encroached portion. The interference on the rest of the suit land by appellants has not been proved. The self serving statement of PW-1 Sant Ram on this point has not been corroborated by independent witness. Therefore, in view of Anil Mohil (supra) and even otherwise cross objectors / respondents are not entitled to any indulgence. 8. No other point was urged. 9. The result of the above discussion, the appeal and cross objections are dismissed with no order as to costs. December 19, 2008. ( Kuldip Singh ), J. (soni)