Point of Law: Civil Law - Rendition of a decree for permanent prohibitory - Ipso facto they are concluded to rather accept conclusions as made therein, in, as much, as defendants making encroachments upon a portion of suit land, though theirs raising construction on about 12 marlas of land owned by plaintiff.

JUDGMENT :

SURESHWAR THAKUR, J.

1. The appellant (for short the plaintiff) instituted a Civil Suit No. 86 of 1994, before the learned Civil Judge (Sr. Div.) Hamirpur, H.P. In the afore Civil Suit, he claimed rendition of a decree for permanent prohibitory injunction, vis-a-vis the suit khasra numbers and in the alternative for a decree for possession by way of demolition of the built up structure.

2. The afore suit was dismissed on the ground, that the plaintiff is not in possession of the disputed portion of the suit land, borne in khata No. 18 min, khatoni No. 19 min, khasra No. 55, measuring 3 kanals, 7 marlas, as per Jamabandi 1991-92, situated in Tika Sai-Da-Ghat, Mouza Mewa, Tehsil Bhoranj, District Hamirpur, H.P. Moreover, the alternative relief of possession, by way of demolition of built up portion, of the suit land measuring 12 marlas also became declined to the plaintiff, rather for want of specific identification of the afore built up portion of the suit land.

3. The aggrieved plaintiff there-against, cast an appeal bearing number 48 of 2004, before the learned District Judge, Hamirpur. The learned first appellate Court, upon, the afore Civil Appeal, made a verdict affirming and upholding the afore made verdict, upon, the plaintiff’s suit hence by the learned trial Court concerned. Moreover, the plea of the defendants/respondents herein (for short “the defendants”) of their acquiring title to the suit land, by way of adverse possession and also their plea of the suit land coming to them through a family partition, also became declined. The afore made findings against the defendants acquire conclusivity, as, the defendants did not prefer there-against any appeal, before the learned first appellate Court. Against the concurrently recorded verdicts of both the Courts below, the plaintiff instituted the instant appeal before this Court.

4. When the appeal came up for admission before this Court, this Court had admitted the instant appeal, on 26.3.2010, on the hereinafter extracted substantial questions of law:-

“2. Whether in the absence of specific pleadings of encroachment the plaintiff can be denied a decree of permanent prohibitory injunction especially in view of the specific admission of the defendant that he had not encroached on the land of the plaintiff and thereby further erred in dismissing the application under Order 26 Rule 9 moved before the Appellate Court?

3. Whether the Learned Appellate Court as well as the Trial Court below have erred in not applying the provisions of Vol. 1 Chapter 1 Part (M) (i) of Punjab High Court Rules and orders as applicable to the State of Himachal Pradesh and thereby causing injustice to the plaintiff for all time to come by dismissing his suit.

4. Whether the learned Court below erred in law in not granting a decree for possession especially when it was specifically prayed in the alternative and the findings that the construction was prior to the filing of suit and based on misleading and mis-appreciation of evidence on record.”

5. In so far as substantial questions of law No. 2 and 3 are concerned they are answered in favour of the plaintiff. The reason for making the afore conclusion arises from the factum that this Court, through an order of 1.7.2015, had directed the holding of demarcations of the suit land, by the Tehsildar Bhoranj. In pursuance to the afore made order, the Tehsildar made a report, before this Court, which exists at page 62 of the paper book. In his report he has mentioned that the defendants have raised construction, upon 12 marlas of land and in respect thereof he prepared and appended therewith the apposite tatima to which he assigned khasra No. 55/1. The afore made report acquires conclusiviely and finality, as, no objection to it became reared by the defendants.

6. Nonetheless, the learned counsel appearing for the defendants has argued with much vigour before this Court, that since, the relief of possession by way of demolition, of the afore portion of the