HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 579 of 2000. Decided on: 7.9.2010 Gajinder Singh and others ………Appellants Versus Inder Singh ………Respondent Coram: The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the appellants: Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate for the appellants. For the respondent: Mr. Bhupinder Gupta, Senior Advocate with Mr. Ajeet Jaswal, Advocate. V.K. Ahuja, J.(oral): This is a regular second appeal filed by the appellants/defendants under Section 100 of the Code of Civil Procedure, against the judgment and decree passed by the learned District Judge, Chamba, dated 31.8.2000, vide which he affirmed the judgment and decree passed by the learned Sub Judge Ist Class, Chamba, dated 10.3.1999, decreeing the suit of the plaintiff/appellant for permanent injunction and for mandatory injunction. 2. Briefly stated the facts of the case are that the respondent (hereinafter also referred to as the plaintiff) filed a suit for permanent prohibitory and mandatory injunction against the appellants (hereinafter referred to as the defendants). It was alleged by the plaintiff that he is owner in possession of the land comprising Khasra No. 5438. He also alleged that - 2 - the defendants are threatening to raise construction over the suit land and in case they succeed in raising construction forcibly during the pendency of the suit he also prayed for the relief of mandatory injunction in the alternative alongwith relief of permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the suit land. The defendants denied the allegations and pleaded that they are owner in possession of the suit land for the last 30-35 years since time of their father. It was also pleaded that the defendant’s father had raised construction over the suit land 25-26 years ago by raising a Kacha room (Tapra) and had also planted a Dadu tree and had been growing vegetables in the suit land. They pleaded that the plaintiff has never been in possession of the suit land and, as such, the defendants have become owner by way of adverse possession. 3. On the pleadings of the parties, the following issues were settled by the learned trial Court. 1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP 2. Whether the defendants have become the owners of the suit property by way of adverse possession as alleged. If so, its effect? OPD 3. Whether the plaintiff is entitled to a decree of mandatory injunction as claimed? OPP 4. Whether the plaintiff is entitled to a decree for possession in the alternative as alleged? OPP 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff has locus standi to sue? OPP 7. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD 8. Whether the suit is time barred? OPD 9. Whether the plaintiff has a cause of action? OPP 10. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD - 3 - 11. Relief. 4. Parties led their evidence and the learned trial court vide its judgment and decree, decreed the suit of the plaintiff for permanent prohibitory injunction restrained the defendants from interfering in the possession of the plaintiff over the suit land. The decree was also passed by way of mandatory injunction for removal of Tapra constructed by the defendants over a part of disputed land. 5. On appeal the findings recorded by the learned trial court were upheld and the appeal filed by the defendants was dismissed. The defendants have come up by way of present appeal. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The appeal was admitted by this Court on two substantial questions of law. First question pertains to question as to whether the presumption of truth attached to copy of jamabandi Ext.P-1 showing the plaintiff to be owner in possession of the property was rebutted or not. The second question was as to whether the boundary dispute between the parties could be resolved without appointing a Local Commissioner and as to whether this construction was raised 20-25 years ago. 9. On appraisal of record of the case, it is clear that a perusal of Ext.P-1 copy of jamabandi filed on record shows that the plaintiff is duly recorded as owner in possession of the suit land comprised in Khasra No. 5438 which is recorded as vacant. There is no mention in this copy of jamabandi of any constructed portion existing over the suit land. The plaintiff has stepped into the witness box as PW-1 and substantiated his case. He has stated that the defendants had kept stones in the land and he filed a suit and obtained a stay and during the pendency of the suit they constructed Tapra - 4 - of slate. He stated that he was owner in possession of the suit land. On the other hand to rebut this evidence, DW-1 Narinder Gupta son of Bhushan Gupta has appeared in the witness box, but his name does not appear as a defendant though the learned counsel for the appellant has submitted that he is Gajinder Singh @ Narinder Gupta but there is nothing on record to substantiate this plea. However, he is one of the sons of Bhushan Gupta previous owner it may be assumed that he was the defendant also. He stated that the construction exists over the suit land for the last 30-32 years since the time of their father. He stated that there is Dadu tree in the land and he was also growing vegetables. He stated that the Tapra was built about 35-40 years ago. He stated that his father died in the year 1994 and the Tapra was constructed earlier and the land was in possession of his father. He is not aware of khasra number of the area. He denied the suggestion that they constructed Tapra forcibly in the month of June 1995. He also denied his knowledge that the plaintiff had obtained any stay order against them. 10. To substantiate their case, the defendants also examined DW-2 Mahesh Chand, who stated that he seen the possession of defendant Bhushan Gupta previous owner for the last 24-25 years and a shed had been constructed. He stated that the Tapra was constructed about 25-26 years ago and there also exists a Dadu tree. In cross-examination, he admitted that he is a PWD contractor and the defendant’s son is also serving in PWD that may be the reason for his deposing in the court. He stated that there is a house of one Puran Chand J.E. He admitted that Dadu tree is a wild plant and grows naturally. He denied the specific suggestion that he does not remember if Tapra was constructed by the defendants in the month of June, 1995. He denied his knowledge but he stated that he does not remember it was constructed in June, 1995 though his statement was recorded in the year - 5 - 1998 and he could have admitted the suggestion clearly. He further stated that he does not know if the defendants had constructed a new house. 11. From the above discussion it is clear that the evidence led by the defendants is vague in nature. There were no allegations in the written statement filed by the defendants in which year the defendant’s father constructed a house or when this construction was raised by them. There must be a record available with the defendants in regard to construction when it was raised. They could have examined any mason who constructed this Tapra. Therefore, these vague allegations were not substantiated by the defendants by way of any cogent and reliable evidence and the statement of DW-2 Mahesh Chand coupled with the testimony of DW-1 Narinder Gupta was not sufficient to rebut the correctness attached to the copy of jamabandi for the year 1991 showing that the land was entered as vacant and there was no mention of any construction existing over the suit land. It is also on record that the plaintiff amended their plaint during the pendency of the case taking the plea of mandatory injunction and in the alternative for possession which was allowed and the amended plaint was also filed. No amended written statement was filed by the defendants to deny the assertion made in the amended plaint that this construction was raised during the pendency of the suit. 12. From the above discussion it follows that the evidence led by the defendants was not sufficient to show that they are in possession of the suit land or their possession was adverse and they have become owner by way of adverse possession. 13. During the course of arguments, learned counsel for the appellant had relied upon a decision of this Court in Bali Ram v. Mela Ram and another, AIR 2003 Himachal Pradesh 87, wherein it was held that - 6 - while considering the provisions of Order 26 Rule 9 CPC, the court can exercise power suo motu. In that case the case was remanded with direction to appoint local commissioner for the just decision of the case. The decision in that case was based upon the facts of that case. There is no boundary dispute in the present case and the defendants have not taken a plea that the land in dispute was owned by them. There is no question of appointment of local Commissioner. In case the parties or particularly the defendants wanted to get local commissioner appointed, they would have made a prayer in that regard before learned trial court or the learned appellate court. No case is made for giving such direction and to remand the case after so many years to appoint local commissioner since there was no boundary dispute. 14. From the above discussion, it follows that there is no merit in the appeal filed by the appellants and the same is dismissed accordingly. The parties are left to bear their own costs. September 7, 2009. (V.K. Ahuja), (VT) Judge.