Point of Law: In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by High Court unless findings so recorded are shown to be perverse.

JUDGMENT :

SANDEEP SHARMA, J.

1. Instant Regular Second Appeal filed under S.100 CPC lays challenge to judgment and decree dated 26.2.2009 passed by learned Additional District Judge, Fast Track Court, Shimla, Himachal Pradesh in Civil Appeal No. 20-S/13 of 2008 affirming judgment and decree dated 5.3.2008 passed by learned Civil Judge (Senior Division), Shimla, in Civil Suit No. 36/1 of 2006/04, whereby suit for possession having been filed by the respondent/plaintiff (hereinafter ‘plaintiff’) came to be partly decreed.

2. Precisely, the facts of the case as emerge from record are that the plaintiff filed a suit for possession and recovery, averring therein that he is owner of land described by Khata No. 4, Khatauni No. 20, Whether reporters of the Local papers are allowed to see the judgment? Khasra No. 24, measuring 25.54 square metres situate in Mohal Kakhu, Mohal Station Ward, Chhota Shimla, Tehsil and District, Shimla, Himachal Pradesh (hereinafter ‘suit land’). Plaintiff further averred in the suit that in the year 1992, Police Department unauthorizedly and illegally constructed two rooms on the suit land for running a Wireless Station. It is alleged that the suit land was occupied by the defendants and building work was carried out by them without his consent or consent of his deceased father, who was alive at that time. It is averred that the defendants illegally took possession of land in dispute and raised construction without any right, title or interest. It is averred that when Gopal Krishan Pandit i.e. late father of the plaintiff, Sanjeev Pandit, came to know about unauthorized and illegal construction raised by the defendants, he immediately took up the matter with the defendants, but they did not respond. The defendants have no right to use the property of in dispute. Plaintiff averred that he intends to use the property in dispute for beneficial purposes and thus require immediate possession of suit land in its original position. Plaintiff also claimed that he is entitled to use and occupation charges at the rate of Rs. 10,000/- per month from the defendants from the date of occupation of disputed land till the date of filing of suit. Before filing suit at hand, plaintiff served the defendants with notice under S.80 CPC, calling upon them to hand over vacant and peaceful possession of suit land and pay use and occupation charges but since no heed was paid to aforesaid request of the plaintiff, he was compelled to institute the suit in question.

3. Aforesaid claim put forth by the plaintiff came to be resisted by the defendants, who in their written statement, besides raising preliminary objections of locus and maintainability of suit, though nowhere denied the claim of the plaintiff that he is owner of suit land but claimed that the land in question is/was in possession of Jakhu Temple Trust Committee since times immemorial. Defendants set up a case that Jakhu Temple Trust Committee constructed two very small rooms on suit land and handed over the same to defendant No. 2. Defendants also stated in the reply that vide communication dated 15.11.1986, Deputy Commissioner was requested to provide suitable accommodation for establishment of VHF at Jakhu. Pursuant to said letter, Deputy Commissioner handed over disputed accommodation to one B.L. Gupta, the then Inspector, Wireless. Defendants further claimed that entire local VHF wireless communication of Police Department pertaining to law and order, natural calamities, VVIP security, regulating traffic etc. is controlled and regulated with the help of station set up on the suit land. Defendants claimed that structure is in existence prior to the year 1986 and it was not raised by them rather by Jakhu Temple Trust Committee.

4. In replication to the written statement, plaintiff averred that a communication was sent to Additional Secretary (Home) to the Government of Himachal Pradesh, who vide letter dated 28.12.2003, requested Director-General of Police to take appropr