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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Madhavi Mehra alias Urmila – Appellant
Versus
Kamla Devi and Others – Respondents
RSA No. 358 of 2017
Decided On : 25-11-2022
Code of Civil Procedure ,1908 - Section 96 - Application – Decreed - Plaintiff filed the suit on premise that while getting the plots carved out in land comprised in Khasra No. 1745, defendant No. 3 in collusion with revenue staff, had manipulated the records in such a manner that area of Khasra No. 1745 was increased and land comprised in Khasra Nos. 1746 and 1747 was reduced - On such allegations, it was averred in plaint that defendants, under garb of wrong revenue entries were trying to encroach upon land comprised in Khasra Nos. 1746 and 1747 - It was further submitted in plaint that during demarcation proceedings conducted by Revenue Officer on request of defendants, though her husband was present and had signed the proceedings, but he had not appended signatures voluntarily as he was not feeling well - Defendants contested allegations levelled by plaintiff - Defendants No. 1 and 2 came up with clear defence that they were in possession of their respective plots of land sold to them by defendant No. 3 - There was no enhancement in area of Khasra No. 1745 nor was there any reduction in area of land comprised in Khasra Nos. 1746 and 1747 - Defendant No. 1 had got the land demarcated and boundaries of respective land of plaintiff and defendants, were un-breached - Whether plaintiff is owner in possession of the suit land, as alleged? - Whether the defendants interfered in ownership and possession of the plaintiff over suit land by way of raising construction, encroaching and chopping trees, as alleged?.
Finding of Court : . From the evidence lead by plaintiff, it is clear that except self serving statements of plaintiff and her husband, there was no corroboration to their allegations - Statement of Sh. Gurdial Singh was in general terms - He was not owner of any adjoining land as stated by him in cross-examination - He was also not aware about respective area of land owned by the parties - He did not know in which khasra number fencing of plaintiff was disturbed. Similarly, tatima Ext.PW3/A was stated to have been prepared by PW-3 - He had prepared tatima on basis of Latha - Suit was filed in year -Defendant No. 1 had purchased the land comprised in Khasra No. 1741 and defendant No. 2 had purchased his plot of land almost during same period - ‘Latha’ gets amended with change in size of holding - It is not disputed that the area of land comprised in Khasra No. 1745 was sub-divided into different khasra numbers after carving out of plots therefrom - Tatima Ext.PW3/A was of no help to the case of the plaintiff.
Result : Appeal is, accordingly, disposed of
JUDGMENT :
SATYEN VAIDYA, J.
1. Heard.
2. By way of Regular Second Appeal, judgment and decree dated 28.02.2017, passed by learned District Judge, Kangra at Dharamshala, H.P. in Civil Appeal No. 35-D/XIII/2013, titled as Smt. Madhavi Mehra vs. Smt. Kamla Devi and Others, affirming judgment and decree dated 24.04.2013, passed by learned Civil Judge (Senior Division), Kangra at Dharamshala in Civil Suit No. 13 of 2006, has been sought to be assailed.
3. Parties hereinafter shall be referred to by the same status as they held before learned Trial Court. Appellant herein was plaintiff and respondents herein were defendants in the same sequence as impleaded in the instant appeal.
4. Brief facts necessary to be noticed for adjudication of the appeal are that plaintiff is co-owner of land, with Shri Kumud Handa and defendant, comprised in Khasra Nos. 1746 and 1747, measuring 1249-56 sq. mtrs. situated in Up-Mohal Gamroo, Mouza and Tehsil Dharamshala, District Kangra, H.P., which had come in their ownership by way of transfer from defendant No. 3. Defendants No. 1 and 2 are owners of Khasra Nos. 1745/1 and 1745/7, which abutts the abovesaid land of plaintiff, comprised in Khasra Nos. 1746 and 1747. Defendants No. 1 and 2 were also transferees of their respective pieces of land as mentioned above from defendant No. 3.
5. Plaintiff filed the suit on the premise that while getting the plots carved out in the land comprised in Khasra No. 1745, defendant No. 3 in collusion with revenue staff, had manipulated the records in such a manner that the area of Khasra No. 1745 was increased and land comprised in Khasra Nos. 1746 and 1747 was reduced. On such allegations, it was averred in the plaint that the defendants, under the garb of wrong revenue entries were trying to encroach upon the land comprised in Khasra Nos. 1746 and 1747. It was further submitted in the plaint that during demarcation proceedings conducted by Revenue Officer on the request of defendants, though her husband was present and had signed the proceedings, but he had not appended signatures voluntarily as he was not feeling well.
6. Defendants contested the allegations levelled by the plaintiff. Defendants No. 1 and 2 came up with clear defence that they were in possession of their respective plots of land sold to them by defendant No. 3. There was no enhancement in the area of Khasra No. 1745 nor was there any reduction in the area of land comprised in Khasra Nos. 1746 and 1747. Defendant No. 1 had got the land demarcated and boundaries of the respective land of the plaintiff and defendants, were un-breached.
7. On the pleadings of the parties, learned Trial Court has framed the following issues:
2. Whether the defendants interfered in the ownership and possession of the plaintiff over the suit land by way of raising construction, encroaching and chopping the trees, as alleged? OPP
3. In case the defendants succeed in raising construction over the suit land, whether the plaintiff is entitled for a decree of mandatory injunction mandating the defendants to restore the suit land to the original position, as alleged? OPP
4. Whether the suit is not legally and factually maintainable in the present form, as alleged? OPD
5. Whether the plaintiff has no cause of action and locus-standi to file the present suit? OPD
6. Whether the plaintiff has not approached the court with clean hands? OPD
7. Whether the suit is vague and based upon frivolous averments? OPD.
8. Whether the suit is time barred, as alleged? OPD
9. Whether the suit is bad for multi-fariousness and mis-joinder of cause of action? OPD
10. Whether the act and conduct of the plaintiff is bar to file the present suit? OPD
11. Whether the suit of the plaintiff is bad for non-joinder of necessary parties? OPD
12. Whether the plaintiff has no enforceable cause of action? OPD
13. Whether the suit of the plaintiff is not properly valued for the purposes of court fee
Point of Law : Plaintiff applied for demarcation of land and without ascertaining the limits of boundaries of respective land of the parties, her apprehension was unfounded.
Validity of demarcation report as evidence and the requirement for specific boundaries in property disputes.
The plaintiff's appeal against the dismissal of her suit was rejected as the demarcation report showed lawful encroachment on government land.
Appellate Court may permit additional evidence to be produced whether oral or documentary, if conditions mentioned in Order 41 Rule 27 are satisfied.
The reliance on the demarcation report by the lower courts was justified, as it found no encroachment on the suit land. The plaintiff failed to provide evidence to challenge the report, and therefore....
The central legal point established in the judgment is the requirement for demarcation of disputed land and the application of Order 26 Rule 9 CPC.
The appellate court must not overstep its jurisdiction or set aside decrees that are not part of the appeal unless clearly justified; ownership claims must respect established legal boundaries and ow....
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