Himachal Pradesh High CourtPrem Chand vs Chuni Lal (Deceased) Through His Lrs ... on 12 September, 2018Author:Chander Bhusan BarowaliaBench:Chander Bhusan BarowaliaIN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                           RSA No.436 of 2005.Reserved on: 20.8.2018.Date of Decision : 12th September, 2018..Prem Chand                                                           ...Appellant.





                                               VersusChuni Lal (Deceased) through his LRs Suresh Kumar and anr....Respondents.Coram
       The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
        Whether approved for reporting?1 Yes.For the appellant         : Mr. Bhuvnesh Sharma, Advocate.
          For the respondents : Mr. Suneet Goel and Mr. Rohit Chauhan,
                                Advocates.Chander Bhusan Barowalia, Judge.By way of the present appeal, the appellant has

         challenged the judgment passed by the Court of learned District Judge,


         Hamirpur, in Civil Appeal No.70 of 2004, dated 11.5.2005, vide which,

         the learned lower Appellate Court, has affirmed the judgment and




         decree passed by the learned Civil Judge (Senior Division), Hamirpur, in





         Civil Suit No.18 of 1998, dated 15.5.2004.2.                 Material facts necessary for adjudication of this Regular





         Second Appeal are that plaintiff/appellant (hereinafter referred to as the

         'plaintiff') maintained a suit for Permanent Prohibitory Injunction against

         the defendants/respondents (hereinafter referred to as 'defendants')

         alleging that he is co-owner-in-possession, as co-sharer of the suit land

         comprised in Khata No.57 min, Khatauni No.140, Khasra No.553,1Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 13/09/2018 22:59:40 :::HCHP2measuring 4 kanals 9 marlas, situated in Tika Jakhyol, Mauza Mehalta,

    Tehsil Bhoranj, District Hamirpur. There is a road on the suit land, but

    defendants have no right, title or interest therein and are stranger to




                                                                     .the suit land. Defendants started interfering in the suit land by digging

    the same adjoining to their own and possessed land for raising





    construction of a house. Defendants did not desist from their unlawful

    acts, despite repeated request.3.             Defendants contested the suit by raising preliminary

    objections qua cause of action, estoppel, maintainability and dismissal of

    suit with special costs, underSection 35-Aof the Code of Civil

    Procedure. On merits, defendants stated that the suit land was 'Gair

    Mumkin Raste' owned by so many persons including the plaintiff. They

    had been using the alleged path for the last fifty years. Defendants



    never encroached upon the suit land, as no construction over the suit

    land was raised by the defendants. Rather, the construction was made




    on their owned and possessed land of Khasra Nos.518, 519 and 520





    comprising of Khasra No.45.4.              From the pleadings of parties, the learned trial Court





    framed following issues :"1. Whether the plaintiff is entitled to the relief of
                   permanent prohibitory injunction as prayed for ?
                   OPP.2.   Whether in the alternative, the plaintiff is
                   entitled to the decree for possession by way of
                   demolition of such construction as prayed for ?
                   OPP.::: Downloaded on - 13/09/2018 22:59:40 :::HCHP33.   Whether the plaintiff has no cause of action to
                   file the suit ?OPD.4.   Whether the plaintiff is estopped from filing
                   the suit by his own act and conduct ? OPD..5.   Whether the suit is not maintainable as
                   alleged ?OPD.6.   Whether the defendants are entitled to special
                   costs underSection 35-ACPC ? OPD.7.   Whether the defendants are using the path
                   through the land in suit from the time of their
                   ancestors as alleged ? OPD.5.8.   Relief."The learned trial Court after deciding Issues No.1 to 6 in

    negative, Issue No.7 in affirmative, dismissed the suit.6.             Feeling aggrieved thereby the plaintiff maintained first

    appeal before the learned District Judge, Hamirpur, assailing the


    findings of learned Trial Court being against the law and without

    appreciating the evidence and pleading of the parties to its true




    perspective. The learned lower Appellate Court affirmed the findings of





    the learned Court below.      Now, the appellant has maintained the

    present Regular Second Appeal, which was admitted for hearing on





    10.10.2006, on the following substantial question of law:"Whether the two Courts below ought not to
                          have placed reliance upon the demarcation
                          report Ex.DW3/A, because that report pertained
                          to demarcation of Khasra No.517 adjacent to the
                          suit land and not to the suit land itself ?"::: Downloaded on - 13/09/2018 22:59:40 :::HCHP47.             Mr. Bhuvnesh Sharma, learned counsel appearing on

    behalf of the appellant has argued that the learned Court below without

    appreciating the evidence and facts, which have come on record to its




                                                                     .true perspective and the fact that Khasra No.553 was joint inter se the

    appellant-plaintiff and other co-owner and defendants were having no





    right thereon cannot raise any construction on Khasra No.553.            The

    learned Court below has not taken into consideration the statement of





    DW-5, in cross-examination, wherein he has admitted that he has

    constructed a shed in Khasra No.553 and that it was constructed 20-30

    years ago. He has also refer to various provision of law and stated that

    the findings recorded by the learned Courts below are perverse.8.             On the other hand, Mr. Suneet Goel, learned counsel

    appearing on behalf of the respondent has vehemently argued that



    DW-4, in cross-examination has stated that the defendant has not

    constructed a shed and Khasra No.553 is not owned by the plaintiff, but




    it is a 'Gair Mumkin Rasta'.9.             In rebuttal, learned counsel appearing on behalf of the

    appellant has argued that though the path has been shifted to other





    place, defendants have no right to raise construction.10.            To   appreciate   the   arguments    of   learned     counsel

    appearing on behalf of the parties, I have gone through the record in

    detail.::: Downloaded on - 13/09/2018 22:59:40 :::HCHP511.             In order to prove its case, plaintiff-Prem Chand, PW-1,

    has deposed that defendants have raised construction by way of digging

    and causing damage to his courtyard. Ex.P-1, copy of jamabandi for the




                                                                    .year 1990-91, shows that suit land is owned by so many co-owners

    including plaintiff, Prem Chand and it is recorded as 'Share-aam-Gair-Mumkin Rasta'.    PW-2, Sadhu Ram Verma, Local Commissioner, has

    deposed that after demarcating the suit land, he prepared his report,





    Ex.PW2/A, which shows that defendants had encroached upon the suit

    land to the extent of 0-0-6 i.e. 6 sarsai, as shown in tatima, Ex.PW2/D.

    In his cross-examination, he has admitted that he did not state in his

    report, from which point, he did draw the perpendicular and his report

    also did not reveal about the fixation of three pucca points. PW-3, Bhag

    Singh, also deposed that the defendants had encroached upon the land



    of the plaintiff. He has also stated that on the suit land, there is in

    existence shop of the plaintiff.       PW-4, Amar Nath, deposed about




    raising of shed by the defendants over the suit land. He admitted about





    demarcation at the behest of the defendant through Dile Ram,

    Tehsildar.   PW-5, Kirpa Ram, is a witness qua taking of demarcation





    through Tehsildar by the plaintiff, who found unauthorized possession of

    defendant Chuni Lal. Defendant, Chuni Lal, has categorically deposed

    that he had earlier taken demarcation from Dile Ram, Tehsildar and in

    that demarcation, no encroachment was found.           DW-3, Dile Ram,

    Tehsildar, deposed that after carrying out the demarcation, he had::: Downloaded on - 13/09/2018 22:59:40 :::HCHP6given his report, Ex.DW3/A. In his cross-examination, there is nothing

    to shatter his credibility. His report revealed that he had fixed three

    pucca points 'A, B, C' before starting the measurement. Although, he




                                                                       .did not record the statement of parties as to the fixation of pucca

    points.   He has measured the 'karukans' of the land in dispute after





    consulting the 'Aks Musabi and Shajra Latha'. He has also measured all

    the 'karukans' as its detail has been given in his report. His report is





    further revealed that over the suit land, the road has been constructed

    and   there   was   no   encroachment    over     the    same.    The     Local

    Commissioner report Ex.DW3/A, further revealed that plaintiff, Prem

    Chand, did not prefer to associate himself after the demarcation and he

    preferred to carry out the construction work. DW-4, Bhagwan Dass, is

    one of the co-owner of the suit land and cousin brother of the plaintiff.According to him, no construction of defendants was found on any

    portion of the suit land when demarcation was carried out. In his cross-examination, he has stated that Chuni Lal, is not the owner of land





    comprised in Khasra No.553, on which, the road was constructed. He

    has also admitted that the shop and house of Prem Chand-plaintiff has





    been constructed on the suit land comprised in Khasra No.72.12.            This evidence itself shows that the demarcation report,

    Ex.DW3/A is a piece of evidence, which is reliable, as it is carried out

    after taking pucca points and after associating all the parties and no

    encroachment was found to be made by the defendants over the suit::: Downloaded on - 13/09/2018 22:59:40 :::HCHP7land. This fact is also corroborated by the other witness i.e. Bhagwan

    Dass, co-owner of the suit land, cousin brother of the plaintiff, who has

    stated that no construction of the defendant was found on the suit land,




                                                                      .when the demarcation was carried out. It is also not known why the

    plaintiff has not participated in the demarcation process and went to see





    his construction when the demarcation was carried out, though he was

    present there.13.              Plaintiff, Prem Chand, has stated that the defendant had

    carried out the digging and thereby he had caused encroachment to his

    courtyard. But the Local Commissioner report Ex.PW2/A did not reveal

    any encroachment over the courtyard of the plaintiff. It is also relevant

    to mention that the Local Commissioner has mentioned that over 0-0-6

    i.e. 6 sasrsai of suit land, the defendant had raised construction of his



    house. So, the statement of defendant Chuni Lal made by him in his

    cross-examination that over the suit land, he had constructed one shed,




    is not fatal. Because the Local Commissioner report is not revealing the





    encroachment made by the defendant of the construction of shed.Therefore, the statement of defendant regarding the construction of





    shed over the suit land is not clear. It has not been made clear by the

    plaintiff that over which portion of the suit land, shed was constructed

    by the defendant and what is the measurement of shed.14.              From the above, it is clear that the findings so recorded

    by the learned Courts below are after appreciating the facts and law,::: Downloaded on - 13/09/2018 22:59:40 :::HCHP8which have come on record to its true perspective and so, substantial

    question of law, in these circumstances is answered holding that the

    learned Courts below have committed no illegality while placing reliance




                                                                        .upon the demarcation report Ex.DW3/A, as it was for Khasra No.517.15.            In view of the above discussion, the appeal of the





    appellant is without merit, deserves dismissal and is accordingly

    dismissed. In the peculiar facts and circumstances of the case, parties





    are left to bear their own costs.       Pending application (s), if any, shall

    also stands disposed of.th
                       r                (Chander Bhusan Barowalia)
    12 September, 2018                            Judge

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