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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sureshwar Thakur, J.
Col. Mehar Singh – Appellant
Versus
Sudesh Kumari – Respondent
RSA No. 553 of 2006
Decided On : 05-12-2017
demarcation report - Property Dispute - Chapter 10.3 of the Himachal Pradesh Land Records Manual - The court discussed the validity of the demarcation report and its admissibility as evidence. It concluded that the demarcation report was ridden with a stain of partisanship and its preparation was goaded by an oblique motive to favor the plaintiff. The report was found to be invalid as it did not comply with the relevant provisions of Chapter 10.3 of the Himachal Pradesh Land Records Manual.
Fact of the Case:
The plaintiff claimed possession of the suit land and sought a decree for demolition of a super structure raised by the defendant. The defendant contested the suit, claiming ownership by adverse possession.
Finding of the Court:
The trial court decreed the suit in favor of the plaintiff. The first appellate court affirmed the trial court's decision. However, the defendant appealed to the higher court, challenging the reliance on the demarcation report.
Issues: The issues included entitlement for injunction, maintainability of the suit, cause of action, estoppel, locus standi, adverse possession, and validity of title transfer.
Ratio Decidendi: The court found that the demarcation report was invalid and ridden with partisanship, leading to the reversal of the lower courts' decisions.
Final Decision: The higher court allowed the appeal, set aside the judgments and decrees of the lower courts, and dismissed the plaintiff's suit.
Key Points: - The main legal point established is the invalidity of the demarcation report and its inadmissibility as evidence, leading to the dismissal of the plaintiff's suit [judgement_subject]. - The court discussed the validity and admissibility of the demarcation report as evidence [judgement_subject]. - The demarcation report was found to be ridden with a stain of partisanship and its preparation was goaded by an oblique motive to favor the plaintiff [judgement_subject]. - The report was invalid as it did not comply with the relevant provisions of Chapter 10.3 of the Himachal Pradesh Land Records Manual [judgement_subject]. - The trial court decreed the suit in favor of the plaintiff, and the first appellate court affirmed this decision [Fact of the Case]. - The defendant appealed to the higher court, challenging the reliance on the demarcation report [Fact of the Case]. - The higher court found that the demarcation report was invalid and ridden with partisanship, leading to the reversal of the lower courts' decisions [Ratio Decidendi]. - The higher court allowed the appeal, set aside the judgments and decrees of the lower courts, and dismissed the plaintiff's suit [Final Decision]. - The court found that the defendant's absence during the demarcation process and the demarcating officer's failure to ascertain fixed recognizable points from relevant maps rendered the report invalid (!) . - The demarcating officer's report did not articulate that he held a copy of the previous settlement map/aks musabi, which is required for a valid demarcation (!) . - The conclusions of the lower courts were not based on a proper appreciation of evidence, as they excluded germane material from consideration [18000218880011].
Sureshwar Thakur, J.
The plaintiff's suit for possession of suit khasra numbers was decreed by the learned trial Court also it pronounced a decree for demolition of the super structure raised thereon. The judgment and decree pronounced by the learned trial Court, stood, carried in appeal before the learned First Appellate Court, whereupon, the latter Court affirmed the judgment and decree recorded by the learned trial Court, upon, the aforesaid Civil Suit No. 46 of 2000. Being aggrieved therefrom, the defendant/appellant herein, has instituted the instant appeal before this Court, for his concerting to beget its reversal.
2. Briefly stated the facts of the case are that the plaintiff claimed decree for permanent prohibitory injunction restraining the defendant from encroaching upon the suit land or raising any construction as well as to change the nature of the suit land. It has been averred that the suit land was owned and possessed by the plaintiff. However, during the pendency of the suit some construction was raised regarding which prayer had been made that the decree for possession be passed in case any encroachment or construction is raised on the suit land by the defendant. The plaintiff claimed that the plaintiff was in peaceful possession of the suit land, but the defendant started interference and threatened to raise construction over the part of the suit land for which material was collected and arrangement for labourers to dig the land was also made. It is also averred that the defendant had forcibly taken possession of suit land and illegally raised construction of shed during the pendency of the suit, despite stay orders having been passed by the Court thereby decree for possession after demolition of the structure had also been prayed.
3. The defendant contested the suit and filed written statement, wherein he has taken preliminary objections qua maintainability, cause of action, estoppel, locus standi. On merits, it is claimed that the defendant has become owner by way of adverse possession. The defendant had asserted that the plaintiff is not owner nor was in possession of the suit land. It has been alleged that the defendant and Tarlok Chand purchased three kanals and 10 marlas of land from one Smt. Sarla Devi vide registered sale deed No.266 of 14.8.1972, out of khasra No.209. Mutation was also attested and the defendant came into its possession. Thereafter demarcation was also taken by the defendants. Since, the year 1972, the defendant never parted with possession of suit land and the possession was to the knowledge of Sarla Devi as well as that of plaintiff. It has been averred that the husband of plaintiff is serving in the Revenue Department, who got the land purchased and got the land of defendant included in the suit land by getting the Karukans changed and when came to the notice of defendant, he applied for the correction of karukans by moving an application which was dismissed. However, the matter is now pending before the Settlement Collector. It has also been averred that the husband of the plaintiff was knowing that karukans had been got fictitiously and thereby he managed the sale deed in the name of his wife. However, despite that possession was never taken by her. The plaintiff after instituting the suit tried to take forcible possession of the suit land, whereby, the defendant completed the construction work in the year 1982-83 and the plaintiff be restrained from interfering over the suit land which is in possession of defendant by filing counter claim. It had been prayed that the decree be passed declaring the defendant to be owner in possession of the suit land and restraining the plaintiff from interfering over the peaceful possession of defendant over the suit land.
4. The plaintiff/respondent herein contested the counter claim filed by the defendant/appellant herein, by filing written statement/replication thereto, whereby it had been alleged that the defendant never came into po
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