Ram Lal vs Salig Ram

2. At the outset, it could be noticed for a brief outline of the matter that the Digitally signed by ANITA MALHOTRA Date: 2019.02.04 plaintiffs-appellants had alleged attempted encroachment over the land in 17:28:57 IST Reason: question by the defendants. The Trial Court dismissed the suit. However, the 1 First Appellate Court remitted additional issues for finding by the Trial Court on the question as to whether defendants had encroached over the land in question and to what extent; and for this purpose, the Trial Court was directed to appoint a Local Commissioner and to decide the matter after inviting objections on the report of the Commissioner. After report by the Commissioner, the defendants- respondents raised objections which were rejected and thereafter, the Trial Court returned its findings on the additional issues in favour of the plaintiffs. Thereafter, the Appellate Court allowed the appeal and decreed the suit. However, in second appeal by the defendants, the High Court found that the Local Commissioner had not carried out demarcation in accordance with the applicable instructions; and while ruling that such report could not be relied upon and while further holding that there was no other evidence that the defendants had encroached over the land of the plaintiffs, proceeded to allow the appeal by its impugned judgment dated 06.11.2007.

4. In view of the short point involved, dilation on all the factual aspect is not necessary. A brief reference to the relevant background aspects would suffice. The plaintiff-appellants had filed the suit leading to this appeal essentially with 2 the averments that they were owners and in possession of the land comprised in Khasra No. 146, admeasuring 1-8 bighas at village Saunkhar, Pargna Ajmerpur, Tehsil Ghumarwin, District Bilaspur and the defendants-respondents, being the owners of neighbouring Khasra No. 148 had been seeking to take over possession and to raise construction on a part of their land. The suit was contested by the defendants by filing their written statement. The Trial Court framed the following issues for determination of the questions involved in the matter:-

13. As noticed, in essence, the case of the plaintiffs has been that the defendants were interfering with, and encroaching over, a part of their land comprised in Khasra No. 146. The Trial Court dismissed the suit but the First Appellate Court, at the initial stage, found it just and proper that further issues be determined on the question/s as to whether the defendants had encroached over the suit land and, if so, the extent and the manner thereof. The Trial Court was further directed to appoint a Commissioner and to hear the parties on objections, if any, and then to return the findings on additionally framed issue Nos. 2-A and 2-B. The Trial Court did appoint a Commissioner who carried out demarcation; the objections to his report were rejected; and thereafter, the Trial Court returned the findings in favour of the plaintiffs.

plaintiffs, therefore, the impugned judgment and decree are liable to be set-aside. The substantial questions of law No. 1 and 2 are answered in favour of the appellants- defendants and against the respondents-

19. Accordingly, this appeal is allowed in the manner that the judgment and decree dated 06.11.2007 in RSA No. 260 of 1995 is set aside but the said appeal is disposed of by setting aside the judgment and decree of the 11 subordinate Courts; and the suit filed by the plaintiffs-appellants is restored for reconsideration by the Trial Court keeping in view the observations and requirements foregoing.

20. The parties through their respective counsel shall stand at notice to appear before the Trial Court on 05.03.2019. The Trial Court shall be expected to issue a fresh Commission immediately and after examining the objections, if any, to the Commissioner’s report, to dispose of the suit afresh expeditiously and preferably within a period of three months from the date of appearance of the parties. Costs of the proceedings shall follow the final decision of the suit.