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2012 Supreme(HP) 816
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Rajiv Sharma, J.
Santosh Singh - Appellant
Vs.
Puran Singh - Respondent
RSA No. 500 of 2011
Decided On : 07-05-2012
Advocate Appeared:
For the Appellant :Ramakant Sharma, Advocate
For the Respondent:Sanjay Sharma, Advocate
The main legal point established is the reliance on demarcation reports and documentary evidence to determine boundary disputes and encroachments.
Headnote:
boundary dispute - demarcation - Code of Civil Procedure - Order 26 Rule 9 - Khata No. 56 min, khatauni No. 57 min, Khasra Nos. 721, 722, 729, 736, 738 and 739 - summary of the acts and sections referenced and discussed by the court
Fact of the Case:
The plaintiff filed a suit for fixing boundaries by way of demarcation due to a boundary dispute with the defendant. The defendant contested the suit, denying the need for demarcation.
Finding of the Court:
The court found that the demarcation report prepared by the Local Commissioner supported the plaintiff's claim, proving the defendant's encroachment on the suit land.
Issues: The main issue was whether the demarcation report accurately reflected the boundary dispute and if the defendant had encroached upon the suit land.
Ratio Decidendi: The court relied on the demarcation report, oral testimonies, and documentary evidence to conclude that the defendant had encroached upon the suit land, supporting the plaintiff's claim for demarcation.
Final Decision: The court dismissed the Regular Second Appeal, upholding the judgments and decrees of the lower courts in favor of the plaintiff.
JUDGMENT :
Rajiv Sharma, J. - This Regular Second Appeal is directed against the judgment and decree dated 23.6.2011 rendered by the learned District Judge, Hamirpur in Civil Appeal No. 222 of 2008.
2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as plaintiff for convenience sake) filed a suit for fixing boundaries by way of demarcation. According to the plaintiff, he is in possession of the land comprised in Khata No. 56 min, khatauni No. 57 min, Khasra Nos. 721, 722, 729, 736, 738 and 739 measuring 0-09-67 hectares, situated in Up Mahal Tillu (1), Mauza Jalari, Tehsil Nadaun, District Hamirpur, Himachal Pradesh according to the jamabandi for the year 1996-97. Land of the plaintiff abuts the land of appellant-defendant (hereinafter referred to as defendant for convenience sake). Defendant, without having any right, title and interest in the suit land, threatened to dispossess the plaintiff from the same and felled trees from the suit land. In the last week of January, 1999, defendant started digging the suit land and collecting construction material thereon for raising construction. There was a boundary dispute between the parties, which could be resolved by demarcation. Plaintiff requested the defendant to desist from the illegal acts, but to no avail. It is in these circumstances, plaintiff has filed suit for fixing boundaries by demarcation of the suit land by some competent revenue officer with consequential relief of permanent prohibitory injunction and in the alternative for possession by demolition of construction, if any raised, during the pendency of the suit.
3. The suit was resisted and contested by the defendant. Defendant has admitted that his land abuts the suit land but has denied that he ever threatened the plaintiff to dispossess him from the suit land and to raise construction thereon. The construction, if any, had already been raised by the father of defendant during his life time on his own land. According to him, plaintiff had already got demarcation of the suit land from Tahsildar (Settlement), Nadaun on 15.3.1997; therefore, no fresh demarcation of the same is required.
4. Issues were framed by the learned Civil Judge (Junior Division) on 23.1.2003. Suit of the plaintiff was partly decreed by the learned Civil Judge (Junior Division) on 12.11.2008. Defendant preferred an appeal before the learned District Judge, Hamirpur. He dismissed the same on 23.6.2011. Hence, the present Regular Second Appeal.
5. Mr. Ramakant Sharma, on the basis of the substantial questions of law framed, has argued that both the courts below have misinterpreted and misread the oral as well as documentary evidence led by the parties. According to him, demarcation Ex.PW-3/A has not been carried out in accordance with law.
6. Mr. Sanjay Sharma has supported the judgments and decrees passed by both the courts below.
7. I have heard the learned counsel for the parties and have gone through the judgments carefully.
8. Plaintiff had filed an application before framing of issues under Order 26, Rule 9 of the Code of Civil Procedure for appointment of Local Commissioner to demarcate the suit land. Consequently, the trial court appointed Naib Tahsildar as Local Commissioner with direction to visit the spot and demarcate the suit land and submit the report. The Naib Tahsildar, Nadaun visited the spot and carried out demarcation of the land of the parties on 22.10.2000 and submitted report Ex.PW-3/A. He had come to the conclusion that defendant has encroached upon the part of the suit land denoted by Khasra No. 721/3, 721/4, 722/1, 736/1/1 whereas the remaining part of the suit land denoted by Khasra No. 721/1 and 721/2 was found under encroachment of Kashmir Singh and Kumer Singh. Plaintiff has admitted the correctness of the demarcation report Ex.PW-3/A. Defendant preferred objection to the report. According to him, three pucca points have not been fixed and the
