An appellate court under Section 100 CPC will not interfere with concurrent findings of fact unless they are proven to be perverse; a Local Commissioner's demarcation report is valid when signed by a party's authorized representative.

Virender Singh, Judge

The appellant has preferred the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure, against the judgment and decree, dated 17.6.2016, passed by the Court of learned District Judge, Hamirpur, H.P. (hereinafter referred to as ‘the First Appellate Court’), in Civil Appeal No. 14 of 2014, titled as, ‘Avtar Singh versus Kamal Dev’.

2. Vide judgment and decree, dated 17.6.2016, the learned First Appellate Court has dismissed the appeal, preferred by the defendant, against the judgment and decree, dated 4.12.2013, passed by the Court of learned Civil Judge (Senior Division), Court No. 1, Hamirpur, H.P. (hereinafter referred to as ‘the learned trial Court’), in Civil Suit No. 147 of 2008, titled as, ‘Kamal Dev versus Avtar Singh’, whereby, the learned trial Court has decreed the above titled suit.

5. For the sake of convenience, the parties, to the present lis, are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.

6. Brief facts, leading to filing the present appeal, before this Court, as borne out from the record, may be summed up, as under:

6.1 The plaintiffs have sought relief of permanent prohibitory injunction against the defendant, his agents, servants and family members from interfering, in any manner, whatsoever, raising construction, changing the nature of the land, comprising khata No. 333, Khatauni No. 348, Khasra No. 1490, measuring 1 kanal, 13 marlas (hereinafter referred to as ‘the suit land’), as per jamabandi for the year 2003-04, situated in Tika Chamned Tappa Ugilata, Tehsil and District Hamirpur, H.P. It has also been prayed that in case, during the pendency of the suit, defendant succeeded in raising construction over the suit land, then, the suit may be decreed in his favour by way of demolition.

6.1 According to the plaintiff, he is co-owner in possession over the suit land, whereas, the defendant is stranger qua the suit land. The defendant, being a head strong and quarrelsome person, had started interfering over the suit land, by way of digging, collecting construction material, changing the nature of the suit land and threatening to raise construction over the suit land, for which, he has got no right, title or interest. The plaintiff requested the defendant not to do so, but, the defendant did not pay any heed.

6.2 Cause of action to file the suit is stated to have been accrued to the plaintiff on 20.9.2008, when, the defendant started digging the suit land for the purpose of raising construction, collecting construction material and changing the nature of the suit land.

6.3 When, put to notice, the suit has been contested by the defendant, by taking preliminary objections, that plaintiff has not approached the Court with clean hands and suppressed the material facts from the Court. According to the defendant, he has started raising construction over his land bearing khasra No. 1489/4, with the help of government aid, which was given to him, under the IRDP scheme. The plaintiff has no cause of action to file the suit.

6.4 On merit, the suit has been contested, on the ground, that the defendant has no concern with the suit land and question of construction does not arise at all. According to him, he has raised construction in his own land, which was owned by his father and he has raised construction with the financial help, given to him, by the State. Thus, a prayer has been made to dismiss the application.

7. From the pleadings of the parties, following issues were framed by the learned trial Court, vide order dated 8.2.2010:

1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP

2. Whether the plaintiff is entitled to the decree of possession by way of demolition, as prayed for? OPP

3. Whether the plaintiff has no cause of action in the present suit, as alleged?OPD

4. Relief