Jagdish Chand vs Satish Kumar
2021 Latest Caselaw 3905 HP

Reserved On:- 10th August, 2021

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA ON THE 13th DAY OF AUGUST, 2021 BEFORE

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HON'BLE MR. JUSTICE SURESHWAR THAKUR

REGULAR SECOND APPEAL No. 4378 of 2013 Between:-

JAGDISH CHAND, SON OF SHRI MASADDI RAM, R/O TIKA BHABRAN MOUZA KOHLA,

TEHSIL NADAUN, DISTRICT HAMIRPUR, H.P.r

.....APPELLANT.

(BY MR. RAMAKANT SHARMA, ADVOCATE)

AND

1. SATISH KUMAR, SON OF LATE SHRI MILKHI RAM,

2. MAMTA KUMARI, D/O

LATE SHRI MILKHI RAM,

3. KANTA DEVI, WIFE OF SHRI SATISH KUMAR, ALL RESIDENTS OF TIKA BHABRAN MOUZA KOHLA, TEHSIL NADAUN, DISTRICT HAMIRPUR, H.P.

.....RESPONDENTS.

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(BY DR. LALIT KUMAR SHARMA, ADVOCATE)

This Regular Second Appeal coming on for orders

this day, the Court passed the following:-

rJUDGMENT

The plaintiff instituted a Civil Suit bearing No.

267/2001 before the learned Civil Judge (Senior Division)

Nadaun, District Hamirpur, H.P. In the afore civil suit, the

plaintiff prayed for, the, making of a decree for permanent

prohibitory injunction, vis-a-vis, the suit khasra numbers, and,

also prayed for fixation of boundaries of his estate, and, of the

contiguous thereto land of the defendants. In the alternative, he

claimed a decree of possession against the defendants, and, vis-

a-vis, the suit land. The learned Civil Judge (Senior Division)

concerned, after assigning credence to the report of the

Demarcating Officer concerned, as becomes embodied in Ex.OW

1/A, concluded that no portion of the plaintiff's land is

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encroached upon by the defendants. Consequently, the learned

trial Court completely non suited the plaintiff.

2. The aggrieved plaintiff carried an appeal thereagainst

before the learned First Appellate Court. The learned First

Appellate Court dismissed the apposite Civil Appeal bearing No.

3. to 146 of 2012, through, its verdict made thereon on 27.08.2013.

The plaintiff/appellant herein, is aggrieved from the

afore concurrently drawn verdicts of dismissal of his suit, and,

hence is led to institute the extant Regular Second Appeal before

this Court.

4. When the appeal came up for hearing before this

Court on 13.03.2014, it became admitted, on the hereinafter

extracted substantial question of law:-

1. Whether on account of mis-appreciation of the pleadings and misreading of the oral as well as documentary evidence available on record, the findings recorded by both Courts below are erroneous and as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable?

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Substantial question of Law No.1.

5. The verdict and decree as impugned before this

Court would suffer invalidation, only upon, candid evidence

surging forth, and, its making vivid displays that the demarcation

report as made by the Demarcating Officer, and, as borne in Ex.

OW1/A was invalidly made.

to Since, the imperative requirement

for demarcations of, the, contiguous estates of the litigants

concerned is comprised in the demarcating officer, carrying

along with him to the relevant site, the musabi concerned.

Therefore, it has to be discerned, whether at the relevant time,

the demarcating officer concerned carried along with him to the

site concerned, the apposite musabi. Since, Ex.P-3, as, existing

on record of the learned triable Court, is the apposite musabi,

thereupon, it is to be prima-facie concluded that the

demarcation proceedings as launched by the demarcating

officer concerned, were valid, inasmuch as, all the dimensions

appertaining to the suit land, became reckoned therefrom, by

the demarcation officer concerned. However, the making of,

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the, demarcation report by the demarcating officer as borne in

Ex.OW1/A, is, unworthy of acceptance, as, therein, he has clearly

mentioned that since the east portion of, the apposite khasra

number is recorded in the relevant revenue records to carry a

dimension of 28 meters, yet on its measurements being carried

at the relevant site, its dimensions became hence revealed to be

rather 25 meters. The effect of the afore echoing carried in

Ex.OW1/A, is that either the demarcating officer, did not, from

the musabi relay onto the relevant site, the exact dimension of

the plot, in respect whereof, he carried demarcation or that he

completely disregarded the apposite fixed/pacca points, as

existing in the musabi, and, also existing at the site concerned,

wherefroms, rather he was to hold valid demarcations, and,

measurements of the contiguous thereto estates of the

contesting litigants. In either case, the afore echoings borne in

Ex.OW1/A, ultimately affect the conclusion carried therein, that

the defendants did not make any encroachment, upon the land

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owned and possessed by the plaintiff, and, is hence unworthy of

acceptance.

6. Therefore, this Court concludes the reliance, as,

made by the learned courts below, upon, demarcation report

borne in Ex.OW1/B is inapt. Consequently, the non suiting of the

plaintiff, through concurrently recorded verdicts by both the

learned court below becomes unworthy for validation.

7. Even though, this Court has invalidated the

concurrently made verdicts by both the learned Court below.

However, to mete complete justice to the litigants, dehors any

application for demarcation being preferred before this Court by

the plaintiff/appellant herein, it is deemed fit to, for ensuring the

plaintiff availing the afore remedy, hence remand the lis to the

learned First Appellate Court. Consequently, the learned First

Appellate Court is directed to make an order, upon, an

application to be preferred therebefore by the plaintiff, within

two weeks herienafter, to conduct demarcation with respect to

the suit land, and, upon his receiving the report concerned, and,

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also his receiving objections thereto, by the aggrieved

concerned, to draw a fresh decision upon the apposite Civil

Appeal within six weeks after the receipt of the demarcation

report.

8. With the afore observations, the extant appeal is

disposed of. All pending applications also stand disposed of.

(Sureshwar Thakur) Judge 13th August, 2021.

(jai)