Dismissed

Mukandi Lal v. Banwari

Himachal Pradesh HC13 Jun 2017RSA/120/2004

Case brief

AI extract

What is this about?

The High Court dismissed an appeal challenging a lower appellate court's decree for possession. Addressing questions regarding the admissibility of a tatima report and potential bar under Order 2 Rule 2 CPC, the court upheld the lower court's findings that the Local Commissioner's report was valid and the suit was not barred as no construction existed during the earlier suit.

What did the court decide?

Appeal dismissed; parties to bear their own costs; pending applications disposed of.

Mukandi Lal Vs Banwari — Partition | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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RSA No.120 of 2004. Reserved on: 25.5.2017.

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Decided on : 13.6.2017.

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Mukandi Lal and others ...Appellants.

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Versus

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Banwari and others. …Respondents.

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Coram

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The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge. hether approved for reporting?¹ Yes.

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For the appellants : Mr. Karan Singh Kanwar, Advocate. For the respondents : Mr. K.D. Sood, Sr. Advocate with Mr. Rajnish K. Lal, Advocate, for respondents No.1, 2, 3 (a) to 3 (d), 4, 5 (a) & 5 (b). Ms. Ranjana Chauhan, Advocate, for respondents No.6 to 14. Nemo for the remaining respondents.

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Chander Bhusan Barowalia, Judge.

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By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned District Judge, Sirmaur District at Nahan, (H.P), in Civil Appeal No.15-CA/13 of 2002, dated 30.12.2003, vide which, the learned lower Appellate Court has set aside the judgment and decree passed by the then learned Sub Judge

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1^st Class, Court No.1, Paonta Sahib, District Sirmaur, in Civil Suit No.119/1 of 2000, dated 29.1.2002.

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Material facts necessary for adjudication of this Regular

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Second Appeal are that respondents/plaintiffs (hereinafter referred to as

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‘plaintiffs’) maintained a suit for possession on the basis of title against

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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the appellants/defendants (hereinafter referred to as ‘defendants’) comprised in Khasra No.425/1, measuring 1 biswa 11 biswansi, situated in Mauza Shaympur Gorkhuwala, Tehsil Paonta Sahib, District Sirmaur, (H.P) (hereinafter referred to as ‘suit property’). The plaintiffs have alleged that they alongwith proforma defendants are owners-inpossession of land comprised in Khasra No.425, measuring 16 bighas and 14 biswas. Defendants No.1 to 3 have no right, title or interest over the suit property. The plaintiffs have further alleged that in the month of September, 1996, Civil Suit bearing No.280/1 of 1996, decided on 5.6.2000, defendants have encroached upon the suit property. They have started the digging of foundation over the suit property on 5.10.1996 and plaintiffs have maintained a Civil Suit for injunction and defendants were restrained from raising any construction over the suit property, vide order dated 19.10.1996. Despite stay, defendants have raised the foundation and ‘Khurlies’ (place to put fodder for cattle to eat) over 1 biswa 11 biswansi of suit property. Thereafter, the plaintiffs obtained necessary records from the Patwari Halqua, who prepared tatima on the spot and found that defendants have encroached upon 1 biswa 11 biswansi, out of Khasra No.425 illegally and unauthorizedly and the possession of defendants over Khasra No.425 was that of trespassers. The plaintiffs have further alleged that defendants are dangerous and quarrelsome people.

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Defendants No.1 to 3 contested the suit by raising

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preliminary objections that the present suit is not maintainable in the present form and that the plaintiffs are having no cause of action to file the suit. On merits, they have admitted that land is denoted by Khasra No.425 measuring 26 bighas 14 biswas, situated in mauza Shyampur, Gorkhuwala, Tehsil Paonta Sahib, District Sirmaur at Nahan. They have denied that inspite of stay, they have raised foundation and constructed ‘Khurlies’ over 1 biswa and 11 biswansi of the suit property. Defendants have further alleged that they have completed the foundation of kitchen prior to filing of the suit and they have raised construction of wall upto 5 feet in Khasra No.424, which was owned and possessed by them and if it is proved that any part of the land under construction of kitchen comprised in Khasra No.425, in that event they have become owners of the same by way of adverse possession.

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On the pleadings of parties, the learned trial Court framed following issues on 22.5.2001 :

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“1. Whether plaintiffs are owners of the land comprised in

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Khasra No.425 and entitled to possession of land in Khasra No.425/1? OPP.

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2. Whether defendants No.1 to 3 are in adverse possession qua suit land. If so, it effect ? OPD

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3. Whether defendants No.1 to 3 raised construction on the land bearing Khasra No.424. If so, its effect ? OPD.

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4. Relief.”

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The learned trial Court after deciding Issue No.1 against the plaintiffs, Issue No.2 & 3 against the defendants, dismissed the suit. 6. Feeling aggrieved thereby plaintiffs maintained first appeal before the learned District Judge, Sirmaur District at Nahan, H.P, assailing the findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court set aside the findings of the learned Court below. Now, the appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 1.4.2005 on the following substantial questions of law:

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“ 1. Whether the learned District Judge has erred in relying inadmissible document Ex.PW2/A tatima, which has not been prepared in accordance with law for decreeing the suit of the plaintiffs by ignoring the other admissible evidence on record ?

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2. Whether the present suit for possession filed by plaintiffs is barred under Order 2 Rule 2 CPC in view of earlier Civil Suit No.280/1 of 1996 decided on 19.10.1996 and filed by plaintiff No.4 against defendants No.1 to 3 ?”

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Mr. Karan Singh Kanwar, learned counsel appearing on

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behalf of the appellants has argued that the learned lower Appellate Court has failed to take into consideration the fact that the demarcation was not conducted, as per law. He has argued that there is no question of possession by the defendants in Khasra No.425, as the learned lower

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Appellate Court has concluded that it is Khasra No.424, which belongs to the defendants and the construction was found only on Khasra No.424. He has further argued that the objection to the report of Local Commissioner was not considered and decided by the learned lower Appellate Court.

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On the other hand, Mr. K.D. Sood, learned Senior counsel appearing on behalf of respondents has strenuously argued that the learned Court below has taken into consideration all aspects of the case and has passed the judgment and decree, when there is a clear cut report of Local Commissioner, who was appointed after recording the statement of parties that the parties will abide by the report of Local Commissioner and thereafter the decree has been passed by the learned lower Appellate Court. He has further argued that when the demarcation was conducted with the consent of parties, there is no question of entertaining the objection to the report of Local Commissioner. He has further argued that though the learned lower Appellate Court could have passed the decree, the suit for possession over 4 biswas of land, as found by the Local Commissioner to be possessed by the defendants, but the learned lower Appellate Court has only passed the decree for 1 biswa 11 biswansi of land, as claimed by the plaintiffs.

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In rebuttal learned counsel appearing on behalf of the appellants has argued that when first demarcation was not proved, as

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per law and second demarcation was ordered by the learned lower Appellate Court, is of no consequence.

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To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail.

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To prove its case, the plaintiffs have examined Banwari Lal as PW-1 and deposed that he is owner-in-possession of Khasra No.425 and defendants No.1 to 3 have no right, title or interest over the suit property. He has stated that he accompanied the Patwari, to the spot and found that defendants have encroached upon 1 ½ biswas of land of the plaintiff. He was cross-examined at length to demonstrate that Khasra No.424 and 425, are adjoining and defendants have raised construction only on Khasra No.424. PW-2 Deepak Kumar, Patwari, deposed that he prepared the tatima of the spot, on the portion of Khasra No.425 and defendants found to have raised construction. In his cross-examination, he has stated that Khasra No.424 and 425 are adjoining and stated that part of construction was raised by the defendants on Khasra No.425. PW-3 Duni Chand, witness of compromise stated that the compromise was affected between the parties and encroachment was found made by the defendants on the portion of plaintiffs land and defendants have agreed to remove the construction. In his cross-examination, nothing favourable to the defendants has come. Defendants have examined Roop Ram as DW-1,

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who deposed that there is no encroachment over Khasra No.425. He has stated that demarcation was conducted by the Tehsildar was not proper and as per the procedure. He has denied that any encroachment was found by Tehsildar on the land of plaintiffs. DW-2 Amar Singh, has deposed that land is 7 bighas and the house was constructed only on 5 biswas of land and the land is ancestral. He has deposed that there is no construction made by the defendants on the land of plaintiffs.

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From the evidence on record, it is clear that the parties have led their claim, but the compromise was arrived between them, which is disputed by the defendants, in which, defendants have agreed to remove the construction found on the land of the plaintiffs. It was agreed by the defendants to vacate the land by removing ‘Khurlies’ and part of the foundation, which they have laid down at the spot. Further, the land was demarcated, as per demarcation report Ex.P-3. The learned lower Appellate Court appointed Local Commissioner, after the parties agreed in the Court that they will abide by the report of Local Commissioner, thereafter Local Commissioner visited the spot and after making the demarcation on Khasra No.424 and 425, he gave his detailed report. Local Commissioner has found that the defendants have encroached upon the land of plaintiffs in Khasra No.425 to the extent of 4 biswa, as per tatima. According to the defendants, Local Commissioner has failed to locate the disputed land by resorting to either square system or triangular system and the demarcation was

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conducted, as per instructions. The defendants have though taken objections that Local Commissioner has shown the road to be the part of Khasra No.424. The learned lower Appellate Court has considered all

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these objections in para-15 of the judgment and has come to the conclusion that the Local Commissioner has given report, as per law and the objections were rejected, so the arguments of learned counsel for the defendants that the objections were not considered is without any

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basis. This Court finds that the Local Commissioner has taken into consideration all the material aspects of the case that he has carried out the demarcation, as per rules and law. Learned counsel for the defendant has further argued that the learned Court below should have dismissed the suit as it was barred under Order 2 Rule 2 CPC. After going through the pleadings of parties in the learned Court below, this Court finds that when the earlier suit was filed, the construction was not raised, so there was no question for the relief of possession, as the defendants, at that time was not in physical possession and the construction was not there, so the present suit is not barred under Order 2 Rule 2 CPC.

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Hon’ble Supreme Court in Gurvachan Kaur and others vs. Salikram (dead) through LRs, 2010 (15) Supreme Court

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Cases, 530 , has observed in para 10 as under :

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“10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the findings of fact recorded by the

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first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent.”

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In Mir Maqsood Ali vs. Syed Ibrahim and another,

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2011 (14), Supreme Court Cases 39 , has held as under:

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“4. Issue 3 was whether the plaintiff is entitled to declaration, as prayed for and additional Issue 2 was whether the suit property belongs to the Government and, if so, whether the suit is (sic barred due to) non-joinder of the Government. No issue was framed as to whether Bismillah Khan had a title over the property in dispute and no evidence was led by the parties. In the absence of such an issue and evidence, no finding could have been recorded by the High Court that the plaintiff failed to prove the title of Bismillah Khan. In fact the High Court has misdirected itself in setting aside the concurrent finding of fact recorded by the two courts below.”

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Applying the law to the facts of the present case, it is clear that the defendants have encroached upon the land of plaintiffs, so the learned Court below has committed no illegality in passing the decree against the plaintiffs. Accordingly, substantial question of law No.1, is answered holding that the learned lower Appellate Court has not only relied upon tatima Ex.PW2/A, but has also considered the

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report of Local Commissioner appointed by the learned Court below, on the joint statement of learned counsel for the parties and Local Commissioner has given a detailed report, as per law, this Court satisfied that the demarcation was made by the Local Commissioner appointed by the learned Court below and the demarcation was conducted, as per law, so this Court finds that the decree passed by the learned lower Appellate Court is as per law, after appreciating the facts and evidence, which have come on record to its true perspective and demarcation report Ex.P3, cannot be said to be inadmissible, which is as per law. The suit was not barred under Order 2 Rule 2 CPC, when the earlier suit was maintained by the plaintiffs, there was no construction raised by the defendants, so it cannot be said that the suit was barred under Order 2 Rule 2 CPC and substantial question of law No.2, is answered accordingly.

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In view of the above discussion, the appeal of the appellants is without merit and deserves dismissal, hence the same is dismissed. However, in the peculiar facts and circumstances of this case, parties are left to bear their own cost (s). Pending application (s), if any, shall also stands disposed of.

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(Chander Bhusan Barowalia) 13^th June, 2017 Judge (CS)

Mukandi Lal v. Banwari

Case brief

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Mukandi Lal v. Banwari

Case brief

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