IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 320/2016 Decided on:20.04.2024 Dina Nath (deceased) through LRs’ & Ors. …..Appellants Versus Bal Ram ......Respondent.

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Coram Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?1 For the appellants : Mr. G.R. Palsra, Advocate.

For the respondent : Mr. N.K. Thakur, Sr. Advocate with Mr. Divya Raj Singh, Advocate.

Jyotsna Rewal Dua, J The civil suit for possession of land instituted by the respondent has been concurrently decreed by both the learned Courts below. Aggrieved, the defendants (now substituted by legal heirs) have instituted this regular second appeal.

The parties hereinafter are being referred to according to their status before the learned Trial Court.

2. Facts

2(i) The plaintiff (respondent herein) instituted Civil Suit, on 09.08.2010, pleading therein that he was owner in possession of the

1 Whether reporters of the local papers may be allowed to see the judgment? yes

suit land comprised in Khata Khatoni No.76/101 min, Khasra No.711/221 measuring 04-09-00 bighas situated at Mauza Shour, Pargna Sach, Tehsil Pangi, District Chamba. The defendants though strangers to the suit land had encroached upon the same. Defendant No.1 (Deena Nath-appellant No.1 herein) had encroached 4 biswas of suit land denoted by Khasra No.711/221/1 and defendant No.2-(Ali Chand-appellant No.2 herein) had e ncroached upon 6 biswas of the suit land denoted by Khasra No.711/221/2. Encroachment was made in the year 2008. It was further pleaded that the plaintiff had got the suit land demarcated through the revenue agency in presence of the defendants. The demarcation report dated 11.10.2009 confirmed the encroachment by the defendants over the suit land. The defendants did not handover the vacant and peaceful possession of the suit land to the plaintiff, hence, the suit was instituted for possession of land measuring 4 biswas and 6 biswas (total land measuring 00-10-00 bighas) as described aforesaid.

2(ii) In their joint written statement, the defendants denied having made any encroachment over the suit land. The defendants also denied that any demarcation was carried out in their presence.

2(iii) Parties adduced evidence. Plaintiff examined himself as PW-2. Jamabandi for the year 2006-07 showing him as owner in possession of the suit land was proved as Ext. PW-2/B. The kannungo, who carried out the demarcation of the suit land stepped into the witness box as PW-3. He proved the demarcation report dated 11.10.2009 as Ext.PW3/A, the Field Book Ext.PW3/B, Tatima (‘Aks Momi’) Ext.PW3/C, statements of parties recorded during demarcation as Ext.PW3/D and PW3/E. Defendant No.1 appeared as DW-2, whereas defendant No.2 deposed as DW-1. Sh. Ali Chand, while appearing as DW-1, admitted that the suit land bearing khasra no.711/211 was owned by the plainti ff. He also candidly admitted that demarcation of the suit land was carried out by the kannungo on 11.10.2009. Though, he denied that during demarcation the suit land was found to have been encroached by the defendants to the extent of 10 biswas in all, but stated that the suit land was in their (defendants) possession since 1993 and that they had raised a house over the same. Sh. Madho Ram appeared as DW-3, who besides supporting the version of the defendants, admitted that the suit land was demarcated by the kannungo. This witness even went to the extent of saying that disputed land was owned not by the plaintiff but by the defendants.

2(iv) On considering the entire case record, learned Trial Court vide judgment and decree dated 30.06.2014 held that the plaintiff had successfully proved on record the encroachment made by the defendants upon portion of the suit land to the extent of 00-10- 00 bighas. The appeal against this judgment and decree was dismissed by the learned First Appellate Court on 24.05.2016.

2(v) In the aforesaid background, the defendants preferred this regular second appeal, which was admitted