Dismissed

Adalti Ram v. Legha

Himachal Pradesh HC19 Dec 2022RSA/551/2011

Case brief

AI extract

What is this about?

Second appeal by a defendant/purchaser challenging the decree for possession granted to a plaintiff. The High Court upheld the appellate court's finding that a prior Local Commissioner's report on land demarcation was final and binding, establishing the structure was on plaintiff's land, and distinguished the current suit regarding possession based on title from a prior suit for injunction.

What did the court decide?

The second appeal was dismissed; the decree for possession in favour of the plaintiff was restored.

Adalti Ram Vs Legha — Property and Title | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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		RSA No. 551 of 2011 Decided on: 19.12.2022
Adalti Ram	Versus	…..Appellant
Legha & Anr. ………………………	…………………	......Respondents. …………………………………

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Coram

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The Hon’ble Ms. Justice Jyotsna Rewal Dua , Judge.

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Whether approved for reporting?¹

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For the appellant : Mr. Ajay Kumar, Sr. Advocate with Mr. Rohit, Advocate. For the respondents : Mr. Rahul Mahajan, Advocate.

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Jyotsna Rewal Dua, J

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A civil suit filed by respondent No.1 (plaintiff) for a decree of possession by way of demolition of the structure raised over the suit land was dismissed by the learned trial Court on 08.06.2007. Plaintiff’s appeal was allowed by the learned First Appellate Court on 02.08.2011 and his suit was decreed. Aggrieved, defendant No.3 has preferred the present second appeal.

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Parties are hereinafter referred to according to their

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status.

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2. Facts

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2(i) Respondent No.1 was the plaintiff before the learned

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Trial Court. He filed the civil suit in respect of land comprised in Khata

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1 Whether reporters of the local papers may be allowed to see the judgment?

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No.189 min, Khatauni No.433 min, Khasra No. 686 measuring 0-1554 hectares situated at Mohal Mandher Kalan, Mauza Sansal, Tehsil Baijnath, District Kangra, H.P. The plaintiff pleaded that he was in the ownership and possession of the suit land. Jamabandi for the year 1996-97, depicting plaintiff’s ownership and possession over the suit land was appended. His grievance was that defendant Nos.1 and 2 (Hans Raj and Roshal Lal) had encroached the suit land and raised construction over it measuring 15 X 5 meters. By raising this construction, defendant Nos.1 and 2 had occupied 0-00-75 hectares of the suit land. That the plaintiff had earlier filed a Civil Suit No.11/2001, seeking permanent prohibitory injunction against the said defendants from interfering in the suit land. In the alternative, prayer was made in the earlier suit that in case the defendants succeed in encroaching over the suit land during the pendency of the civil suit then the possession of the such land be restored to the plaintiff. In the said civil suit, Tehsildar was appointed as a Local Commissioner for demarcating the land. Local Commissioner had visited the spot on 27.4.2003 and reported that defendant Nos.1 and 2 had raised construction to the extent of 15 X 5 meters and that defendant Nos.1 and 2 had occupied 0-00-75 hectares of the suit land, which was shown in the map as Khasra No. 686/1.

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Civil Suit No.11/2001 was decided on 21.11.2003. Defendant Nos. 1 and 2 were permanently restrained from interfering

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over the suit land. However, alternative relief was not allowed by the learned Trial Court. Plaintiff further pleaded that after the decision of Civil Suit No.11/2001, defendant No.2 had sold his land comprised in Khasra No.687 adjoining to the suit land alongwith structure raised on Khasra No.686/1 to defendant No.3 (Adalti Ram). This was done to defeat the right of the plaintiff over his owned land.

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On the basis of above averments, prayer was made for passing decree for possession by way of demolition of the structure measuring 15 X 5 meters i.e. 0-00-75 hectares double storey, Tin Posh Kacha House as raised over Khasra No.686/1 in the suit property.

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2(ii) Joint written statement was filed on behalf of defendant Nos.1 and 2, whereas defendant No.3 filed his separate written statement. Defendant Nos.1 and 2 took up preliminary objections of maintainability, cause of action and estoppel etc. On merits they admitted that they had no concern with Khasra No.686 owned by the plaintiff. Defendant Nos.1 and 2 pleaded that they were land owners in possession of the adjoining Khasra No.687 and had raised the construction over this khasra number. It was further pleaded that the plaintiff earlier filed Civil Suit bearing No.11/2001, which was decided by the learned Trial Court on 21.11.2003, wherein the relief of possession with respect to Khasra No.686/1 was declined.

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2(iii) Defendant No.3 (present appellant) in his written statement apart from reiterating the preliminary objections raised by defendant Nos.1 and 2 submitted that defendant No.2 had sold Khasra No.687 alongwith alleged structure in his favour. The construction of the house, questioned by the plaintiff was completed by defendant Nos.1 and 2 much prior to the filing of the earlier Civil Suit No. 11/2011. The said construction was raised over Khasra No. 687 and not on Khasra No.686, as claimed by the plaintiff. That defendant No.3 had purchased Khasra No. 687 and also the structure standing on it from defendant No.2 on 30.06.2004 and ever since he is in possession of the same.

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2(iv) After considering the pleadings, evidence and the submissions advanced by the parties, learned Trial Court held that the alleged construction was raised over Khasra No. 686 owned by the plaintiff. The Local Commissioner appointed in the earlier Civil Suit No.11/2001 filed by the plaintiff had reported that defendant Nos.1 and 2 encroached Khasra No. 686 to the extent of 0-00-75 hectares depicted by way of Khasra No. 686/1 in the map. The demarcation carried out by the Local Commissioner to reach the said conclusion was held to be in accordance with law. However, the claim of the plaintiff that encroachment was made by defendant Nos.1 and 2 during the pendency of the civil suit was held not proved on record in the earlier Civil Suit No. 11/2011. The possession of encroached

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land was declined to the plaintiff in the said Civil Suit. The plaintiff had accepted the judgment and decree passed in Civil Suit No.11/2011. Hence, the plaintiff had no cause of action to institute the present civil suit for possession. The suit was dismissed by the learned Trial Court on 8.6.2007.

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2(v) The judgment and decree passed by the learned Trial Court on 8.6.2007 was assailed by the plaintiff before the learned First Appellate Court. The appeal was allowed on 2.8.2011. The learned First Appellate Court held that the present suit was filed by the plaintiff for possession on the strength of his title. Title of the plaintiff over Khasra No. 686 was not in dispute. The demarcation carried out by the Local Commissioner in the earlier civil suit had attained finality. Learned Trial Court in the earlier civil suit had already held that the demarcation report did not suffer from any infirmity. The said demarcation report was proved in the earlier civil suit as Ext. PW-3/A. It was also proved in the present civil suit as Ext. PW-2/A. The Local Commissioner had been examined in the instant suit as PW-2. Tatima prepared during demarcation showing the encroachment made by defendant Nos.1 and 2 was also proved on record in the instant suit as Ext.PW2/B. The earlier civil suit was in essence for permanent prohibitory injunction, wherein the relief of possession was only prayed for in the alternative, whereas in the instant suit relief for possession has been claimed on the strength of

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title and on the strength of the demarcation report, which had attained finality. Hence, the suit was decreed by the learned First Appellate Court.

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3. Defendant Nos.1 and 2 have accepted the judgment and decree passed by the learned First Appellate Court on 2.8.2011. However, not satisfied, defendant No.3 who is stated to have purchased the suit land from defendant No.2 has chosen to prefer the instant regular second appeal. This appeal was admitted on 09.05.2012 on the following questions of law:-

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“1. Whether the findings of the Ld. First Appellate Court are a result of complete misreading of pleadings, evidence and the law as applicable to the facts of the case and particularly Exhibits DZ and PW2/A and PW2/B as such palpably erroneous and illegal and if so to what effect?

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2. Whether the view of the learned First Appellate Court on the point of resjudicata is illegal and contrary to the facts of the case and law applicable to the facts of the case?”

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4. I have heard learned Senior Counsel for the appellant and learned counsel for respondent No.1 on the aforesaid substantial questions of law. With their assistance, I have also seen record of the case. In my considered view, the judgment and decree passed by the learned First Appellate Court does not suffer from any infirmity. This is for the following reasons:-

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4(i) Mark D-Z is the judgment and decree dated 21.11.2003 passed by the learned Trial Court in Civil Suit No.11/2001. A perusal

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of this document shows that the plaintiff had filed the suit to restrain defendant Nos.1 and 2 by way of permanent prohibitory injunction from causing interference over the land comprised in Khasra Nos. 686 and 934. In the alternative, prayer was made for possession after demolition of structure, if any raised by the defendants during the pendency of the suit. ‘Tehsildar’ was appointed as the Local Commissioner by the learned Trial Court in that civil suit to demarcate the suit land. The Local Commissioner visited the spot on 27.4.2003 and demarcated the land in presence of parties. He submitted demarcation report (Ext. PW/3A) and Tatima (Ext.PW3/B) in that suit. In the demarcation report, he found that defendant Nos.1 and 2 had encroached over the suit land comprising Khasra No. 686/1 measuring 0-00-75 hectares. The Local Commissioner reported that these defendants had raised construction over Khasra No. 686 depicted as Khasra No. 686/1 in Tatima (Ext.PW3/B). The challenge laid by defendants No.1 and 2 to the demarcation report and tatima (Ext. PW/3A and PW3/B, respectively) was negated by the learned Trial Court. Though the report of Local Commissioner dated 27.4.2003 was affirmed by the learned Trial Court, however, learned Trial Court also observed that there was no evidence on record to hold that defendants No.1 and 2 had raised the structure on Khasra No. 686, owned by the plaintiff, during the pendency of the civil suit. On such basis, the Civil Suit No. 11/2001 filed by the plaintiff was

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decreed only to the extent of permanently restraining defendant Nos.1 and 2 from interfering over the suit land in question. The alternative relief of possession was not granted. 4(ii). Instant suit has been filed by the plaintiff for claiming possession of Khasra No. 686/1 on the strength of his title. The title of the plaintiff over Khasra No. 686 has not been disputed by the defendants. Defendant Nos.1 and 2s’ case was that the construction sought to be demolished by the plaintiff had actually been raised by them in their owned land comprised in Khasra No.687. But the fact of the matter is that defendant Nos.1 and 2 had objected to the report of the Local Commissioner dated 27.04.2003 in the earlier civil suit. Their challenge to the report had been turned down by the learned trial Court in the earlier civil suit. The decision was accepted by them. The demarcation report dated 27.04.2003 has thus become final. The report would have to be treated as conclusive not only qua defendants No.1 & 2 but also binding upon defendant No.3, who has statedly purchased Khasra No. 687 from defendant No.2 alongwith the structure found to have been unauthorized raised by defendant Nos.1 and 2 over Khasra No.686/1, in question in the present civil suit. Finding has already attained finality that the structure in question statedly sold by defendant No.2 to defendant No.3 was actually raised on Khasra No. 686 and not on Khasra No.687. Defendant No.3 is deriving his right over the structure standing on Khasra No. 686/1,

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only on the strength of sale of this structure made by defendant No.2 to him. The Local Commissioner had found plaintiff’s owned Khasra No.686 encroached by defendant Nos.1 and 2 to the extent of Khasra No. 686/1.

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It is this construction/encroachment over Khasra No.686/1, which has been statedly sold by defendant No.2 to defendant No.3 alongwith Khasra No. 687. Plaintiff being owner of Khasra No. 686 is certainly entitled to the possession of his land comprised in Khasra No.686/1 encroached by defendant Nos.1 and 2 and later sold by defendant No.2 to defendant No.3.

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4(iii) Report of the Local Commissioner proved and affirmed in the earlier suit has also been proved on record of instant case. The ‘Tehsildar’, who had prepared the demarcation report dated 27.4.2003 was examined in the instant civil suit as PW2. He proved his earlier demarcation report alongwith tatima in the instant case as Ext. PW2/A and PW2/B, respectively. Even in the instant civil suit, the defendants could not point out any error or illegality in the demarcation report (Ext.PW2/A) and the tatima (Ext.PW2/B). The defendants have not disputed the judgment & decree passed by the learned Trial Court in the earlier suit (Mark D-Z).

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4(iv) It is also relevant to notice here that defendant Nos.1 and 2 have accepted the judgment and decree passed by the learned

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First Appellate Court on 02.08.2011. It is only the defendant No.3 (appellant), who has preferred the regular second appeal.

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4(v) In the given facts, the plaintiff is entitled to get the possession of his owned but encroached land measuring 0-00-75 hectares comprised in Khasra No. 686/1. The implication of judgment Mark D-Z passed by the learned Trial Court on 21.11.2003 in Civil Suit No.11/2001 and the import of demarcation report dated 27.04.2003 and the tatima Ext. PW2/A and PW2/B, respectively have been properly appreciated and construed by the learned First Appellate Court. The plaintiff had not extinguished his ownership rights over Khasra No. 686/1. He was and remains owner of this Khasra number. In his earlier Civil Suit No.11/2001, the main prayer was grant of permanent prohibitory injunction and in the alternative, possession was claimed in case defendants No.1 and 2 were found to have encroached plaintiff’s land during the pendency of the civil suit. The learned Trial Court returned the finding that though defendant Nos.1 and 2 had encroached over plaintiff’s land as depicted in Khasra No. 686/1, but the said encroachment was found to have been made prior to the institution of Civil Suit No. 11/2001, therefore, relief of possession claimed in the alternative was declined to him. In the instant case, plaintiff has prayed for possession of Khasra No. 686/1 by demolition of unauthorized construction standing over it on the strength of his title, therefore there is no question of

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principle of resjudicata being applied to the instant case. Substantial

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questions of law are accordingly decided against the appellant and answered accordingly.

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No other point has been raised on behalf of the

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appellant.

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5. In view of the above discussions, the present appeal

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being devoid of merit, is dismissed. Pending application(s), if any,

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also stand disposed of accordingly.

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Jyotsna Rewal Dua Judge

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19^th December 2022 (rohit)

Adalti Ram v. Legha

Case brief

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What did the court decide?

Adalti Ram v. Legha

Case brief

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