Shri Ram Dass Son Of vs Tikri
2021 Latest Caselaw 4312 HP

                                       Reportable


           IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
                     ON THE 3rd DAY OF SEPTEMBER, 2021
                              BEFORE




                                                        .
               HON'BLE MR. JUSTICE SURESHWAR THAKUR





               REGULAR SECOND APPEAL No. 640 OF 2008.
    Between:-





    SHRI RAM DASS SON OF
    SHRI NIHALA RAM, RESIDENT OF
    VILLAGE TIKRI, PARGANA TIUN,




    GHUMARWIN, DISTRICT BILASPUR,
    H.P.               r

                                                  .....APPELLANT
           (BY MR. PRASHANT SHARMA, ADVOCATE)



              AND




    JAI RAM (SINCE DECEASED) THROUGH HIS
    LEGAL HEIRS:-





    1(a).    SH. HANSRAJ SON OF LATE





             SH. JAIRAM, RESIDENT OF VILLAGE
             TIKRI, PARGANA TIUN, TEHSIL
             GHUMARWIN, DISTRICT BILASPUR, H.P.


    1(b).    SH. VIDYA SAGAR, SON OF LATE
             SH. JAIRAM, RESIDENT OF VILLAGE
             TIKRI, PARGANA TIUN, TEHSIL




                                       ::: Downloaded on - 31/01/2022 23:00:29 :::CIS
                                   ...2...



              GHUMARWIN, DISTRICT BILASPUR, H.P.




                                                             .

     1(c)     SH. SURESH KUMAR SON OF LATE
              SH. JAIRAM, RESIDENT OF VILLAGE





              TIKRI, PARGANA TIUN, TEHSIL
              GHUMARWIN, DISTRICT BILASPUR, H.P.





     1(d).    SMT. URMILA DEVI DAUGHTER OF LATE
              SH. JAIRAM, RESIDENT OF VILLAGE
              TIKRI, PARGANA TIUN, TEHSIL

              GHUMARWIN, DISTRICT BILASPUR, H.P.


     1(e).    SMT. BRAHMI DEVI WIFE OF LATE
              SH. JAIRAM, RESIDENT OF VILLAGE



              TIKRI, PARGANA TIUN, TEHSIL
              GHUMARWIN, DISTRICT BILASPUR, H.P.




                                                  .....RESPONDENTS.





             (BY MR. ADARSH K. VASHISTHA,





             ADVOCATE)
    RESERVED ON: 23rd AUGUST, 2021.
    DELIVERED ON: 3rd SEPTEMBER, 2021.



                 This Regular Second Appeal coming on for hearing

     this day, the Court passed the following:-




                                            ::: Downloaded on - 31/01/2022 23:00:29 :::CIS
                                     ...3...



                             JUDGMENT

.

The plaintiff instituted a Civil Suit bearing No. 288/1

of 04/01 before the learned Civil Judge (Junior Division), Court

No.2, Ghumarwin, District Bilaspur, H.P. In the afore Civil suit,

the plaintiff, claimed the making of a decree of permanent

prohibitory injunction, and, of possession against the

defendant(s), and, vis-a-vis, the suit khasra numbers. The

learned trial Court, through its verdict made thereon, on

19.11.2007, granted the espoused decree to the plaintiff.

2. The aggrieved defendant, preferred thereagainst an

appeal, bearing Civil Appeal No. 3/13 of 2008, before the learned

First Appellate Court. The learned First Appellate Court, through

its verdict made on 14.07.2008, upon, the afore Civil Appeal,

after partly reversing the judgment, and, decree as became

impugned before it, declined to the plaintiff, the decree of

mandatory injunction through demolition of the wall

constructed by the defendant hence purportedly over the suit

land. However, the learned first appellate Court affirmed the

according by the learned trial Court of the relief of permanent

...4...

.

prohibitory injunction, vis-a-vis, the plaintiff, and, against the

defendant qua the suit khasra number(s) concerned.

3. The plaintiff Ram Dass being aggrieved, from the

afore made verdict by the learned first appellate court, is led to

constitute thereagainst the extant appeal before this Court.

4.

When the appeal came up for hearing before this

Court, it became admitted, on 16.04.2009, on the hereinafter

extracted substantial questions of law:-

1. Whether the ld. Lower appellate court below was justified in declining the relief of

mandatory injunction despite coming to the conclusion that the defendant has interfered

with the suit land owned by the plaintiff by raising wall over the same?

2. Whether the ld. Lower appellate court below was justified in ignoring the demarcation

report Ex.PW2/A as well as Ex./PW3/A i.e. the spot map conclusively proved on record?

3. Whether the demarcation conducted with the consent of the parties and not objected to at any stage can be discarded on technical reasons?

...5...

.

Substantial questions of Law No.1 to 3.

5. The appellant/plaintiff, would succeed in ensuring

that the declining to him of the relief of mandatory injunction,

by way of demolition of the built up wall, upon a portion of the

suit land, being infirm, only upon, his convincing this Court, that

the demarcation report as embodied in Ex.PW2/A, became

validly drawn. Obviously the learned counsel appearing for the

appellant was enjoined to bring forth cogent evidence, in display

that, the discarding of Ex.PW2/A, by the learned First Appellate

Court, was grossly inapt.

6. In the afore endeavour, it is trite and settled law, that

for any demarcation report rather being pronounced to be

validly made, the apposite demarcation is to be clinchingly

proven to be carried by the officer concerned, through his, at the

relevant time hence making the relevant detections of the

apposite fixed points, only from the musabi concerned, and,

thereafter his relaying them onto the site(s) concerned.

However, at the very outset, with PW-2 in his testification making

...6...

.

an admission, that at the relevant time of his making

demarcation of the relevant site, his not holding the musabi,

rather his conducting demarcation from latha, as kept in the

patwar circle concerned. Therefore, wants supra, at the relevant

time, with the demarcating officer rather of the musabi,

conspicuously hence comprising the most solemn documentary

evidence of immense evidentiary vigour, for a valid demarcation

of the site concerned, being validly conducted, by the

demarcating officer concerned, obviously does constrain, this

Court to invalidate the entire demarcation conducted by PW-2,

and, also constrains this Court to invalidate Ex.PW2/A.

7. Since in Ex.PW2/A, some encroachments become

enunciated, yet with the afore encroachments becoming

invalidly disclosed in Ex.PW2/A, and, also when no apt tatima

becomes appended with Ex.APW2/A, rather accurately

delineating thereins, the extent of the purported

encroachments, as, made by the defendant, upon the land

owned and possessed by the plaintiff. Therefore, the declining

...7...

.

of the relief of mandatory injunction comprised in the purported

wall as, raised by the defendant, upon the land owned and

possessed by the plaintiff, being demolished, is well merited,

and, does not deserve any interference being made by this

Court.

8.

The learned counsel appearing for the appellant, has

contended before this Court, that since there was an apparent

consent of the contesting litigants, vis-a-vis, the fixed points

rather wherefrom the demarcating officer commenced the

demarcation proceedings, and, also concluded them.

Therefore, he contends that legal infirmity, if any, in the

demarcating officer rather conducting demarcation proceedings

hence without his at the relevant stage, holding the musabi,

does pale into insignificance. However, the afore submission, as

made by the learned counsel appearing for the appellant,

cannot be accepted, as consent, if any, meted by the contesting

litigants to the commencement, and, culmination of the relevant

proceedings, would hold tenacity only when the demarcating

...8...

.

officer, at the relevant time was evidently holding the afore

document, which alone holds under law the evidentiary worth of

utmost vigour. Reiteratedly, in the absence of musabi, neither

the fixed points wherefrom the demarcating officer was

enjoined to conduct a valid demarcation of the relevant sites,

were ascertainable nor hence the contesting litigants were ably

empowered to under law mete any valid consent, to the fixed

points, if any, available in the latha concerned, document

whereof, otherwise also was admittedly held in the possession

of the demarcating officer, rather in contemporaneity to his

commencing demarcating proceedings, and, his concluding

them. Therefore, the consent, if any, of the contesting litigants

to the fixed points, if any, wherefrom the demarcating officer

commenced, and, concluded the demarcation proceedings, is of

no relevance at all.

9. The above discussion, unfolds, that the conclusions

as arrived by the learned first Appellate Court are based, upon a

proper and mature appreciation of evidence on record. While

...9...

.

rendering the findings, the learned first Appellate Court has not

excluded germane and apposite material from consideration.

All the substantial questions of law are answered in favour of the

respondents, and, against the appellant.

10. In view of the above discussion, there is no merit in

the extant appeal, and, it is dismissed. In sequel, the judgment

and decree, rendered by the learned first appellate court, is

affirmed and maintained. Decree sheet be prepared accordingly.

All pending applications also stand disposed of. No order as to

costs.

(Sureshwar Thakur)

Judge 3rd September, 2021.

(jai)