Melo Devi vs Bhag Singh
2024 Latest Caselaw 10586 HP

Himachal Pradesh High Court

Melo Devi vs Bhag Singh on 30 July, 2024

Author: Virender Singh

Bench: Virender Singh

( 2024:HHC:6168 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

RSA No.436 of 2009 Reserved on : 3rd July, 2024 Decided on : 30th July, 2024

.

           Melo Devi                                                                  .....Appellant

                                                     Versus





           Bhag Singh                                                           .....Respondent

           Coram

The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes.

For the appellant : Mr. Bhuvnesh Sharma, Senior Advocate with Ms.

Vaishali Lakhanpal & Mr. Parav Sharma, Advocates.

           For the respondent :                       Mr. Ajay Sharma,                        Senior


                                                      Advocate with Mr.                       Atharv
                                                      Sharma, Advocate.

           Virender Singh, Judge.

Appellant-Melo Devi has preferred the present

Regular Second Appeal against the judgment and decree

dated 06.06.2009, passed by the Court of learned District

Judge, Kangra at Dharamshala, H.P. (hereinafter referred to

as the 'First Appellate Court'), in Civil Appeal No.156-G/XIII-

2006, titled as Bhag Singh Vs. Gian Singh (deceased)

through LR Melo Devi.

Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

( 2024:HHC:6168 )

2. Vide judgment and decree dated 06.06.2009,

learned First Appellate Court has allowed the appeal filed by

respondent Bhag Singh and granted the following relief:-

.

"In view of my findings on point No. 1 above, the appeal is accepted and judgment and decree of the learned trial court are set aside and consequently the suit of the plaintiff is dismissed. In view of the

peculiar facts & circumstances of the case the parties are left to hear their own costs. Decree sheet be drawn accordingly. The record of the trial court alongwith a copy of this judgment and decree sheet he returned forthwith while file of this court

after due completion be cosigned to record room."

3. The said appeal was preferred by respondent

Bhag Singh, against the judgment and decree dated

27.09.2006, passed by the Court of learned Civil Judge

(Junior Division), Court No.2, Dehra, District Kangra, H.P.

(hereinafter referred to as the 'trial Court'), in Civil Suit

No.120/2000, titled as Gian Singh Vs. Bhag Singh.

4. Vide judgment and decree dated 27.09.2006, the

learned trial Court has decreed the suit filed by the

predecessor-in-interest of appellant Melo Devi and granted

the following relief:-

"32. In view of my findings and decisions on issue Nos.1 to 7 above, the suit of the plaintiff is decreed to the effect that he is declared as owner in possession as per compromise dated 07-11-1990 of

Hin, Khasta No. 857/1 area 0-03-18 hects, as entered in the Janabandi for the year 1994-95 situated in Mahaal Gummer, Tehsil Dehra, Distt. Kengra-HP as shown in tatima prepared by local commissioner Shri Ram Rattan in demarcation report, dated 08-11-1990 and the entries, showing

( 2024:HHC:6168 )

defendant as owner in possession are ordered to be corrected in favour of the plaintiff. The defendant is further restrained by way of perpetual and prohibitory injunction from interfering in the possession of plaintiff, alienating the same and changing the nature of the aforesaid land in any

.

manner, what-so-ever. In the peculiar facts and

circumstances of the cage, the parties are left to bear their own costs. Decree-sheet be drawn up accordingly. File after due completion be consigned to Record-Room."

5. For the sake of convenience, the parties to the

present lis are hereinafter referred to, in the same manner,

as were, referred to, by the learned trial Court.

6. Brief facts, leading to the filing of the present

appeal, before this Court, may be summed up, as under:-

6.1. Predecessor-in-interest of the present appellant,

Gian Singh, has filed the suit for declaration to the effect

that he is owner-in-possession of the land bearing Khata

No.82 min, Khatauni No.157 min, Khasra No.857/1 area 0-

03-18 hectares, entered in Jamabandi for the years 1994-95,

situated in Mohal Gummer, Tehsil Dehra, District Kangra

(hereinafter referred to as the 'suit land'), on the basis of

compromise dated 7.11.1990.

6.2. The plaintiff has also challenged the entries in

the revenue record, showing the defendant as owner-in-

possession of the suit land, as wrong, illegal and baseless.

In addition to this, the plaintiff has also sought alternative

relief of prohibitory injunction, restraining the defendant

( 2024:HHC:6168 )

from interfering in the possession of the plaintiff, alienating

and changing the nature of the suit land, in any manner,

whatsoever.

.

6.3. The suit has been filed on the ground that the

land bearing Khata No.82, Khatauni No.157 min, Khasra

No.857, area 0-05-23 hectares, entered in the Jamabandi,

for the year 1994-95, situated in Mohal Gummer, Tehsil

Dehra, District Kangra, was recorded in the possession of

the defendant. r 6.4. According to the plaintiff, he was absolute owner

of the old field No.187, 188 and 190, area 26 kanals 17

marlas and also having his Abadi, since his forefathers. One

Bimla Devi, later on, purchased Khasra No.190 and ½ share

of Khasra No.188, measuring 12 kanals 15 marlas, from

plaintiff and wrongly merged the said area in the Abadi and

Courtyard of the plaintiff, which was never sold by the

plaintiff.

6.5. It is the further case of the plaintiff that

thereafter, the settlement proceedings took place in the

area and Khasra No.190 was converted into field No.857,

865, 866 and 867 area 0-28-87 hectares and Khasra No.188

was converted into Khasra No.855, 856 and 854, area 0-04-

17 hectares.

( 2024:HHC:6168 )

6.6. As per the plaintiff, thereafter, Smt. Bimla Devi

sold her complete share in old Khasra No.190 to one Shivya

and later on Shri Prakash Chand, successor of Shivya, again

.

sold all Khasra Nos.857, 865, 866, 867 to defendant Bhag

Singh. During settlement, wrong measurements were made

and the land under Abadi of plaintiff were shown in the

ownership and possession of defendant wrongly and land

bearing Khasra Nos.187 and 188 of the plaintiff wrongly

merged in his new Khasra No.865, 866 and 867.

6.7. It is the further case of the plaintiff that

thereafter the defendant, taking undue advantage of wrong

entries, filed suit for permanent injunction, titled Bhag Singh

Vs. Bimla Devi, in which, plaintiff was also arrayed as

defendant No.2, qua land bearing Khata No.180 min,

Khatauni No.289 min, Khasra Nos. 857 and 867, measuring

0-08-04 hectares situated in tika and Mauza Gummer, Tehsil

Dehra. The plaintiff contested the said suit by filing the

written statement. The Court, in which the said suit, was

pending adjudication, had appointed Ram Rattan, Local

Commissioner, to demarcate the land of the parties, on the

basis of old and new record. Consequently, the suit land

was demarcated on the spot on 7.11.1990.

( 2024:HHC:6168 )

6.8. It is the further case of the plaintiff that during

the course of demarcation, it was found that some part of

Khasra No.857, where Abadi house, Courtyard etc. of the

.

plaintiff were situated and had been shown as 857/1, was

found to be the part of the land of the defendant. However,

the same was possessed by the plaintiff on the spot. It has

also been found that during settlement, old Khasra No.188,

owned by the plaintiff, measuring 0-03-18 was included in

Khasra Nos. 865, 866 and 867, owned by the defendant,

without any legal order. Hence, according to the plaintiff,

he was deprived of the area to the extent of 0-03-18

hectares.

6.9. As per the plaintiff, it has also been transpired

during the demarcation that the area of defendant Bhag

Singh, bearing Khasra No.857/1, to the extent of 0-03-18

hectares was found under the residential house and

courtyard of the plaintiff and area measuring 0-03-18

hectares, bearing Khasra No.865, 866, 867, owned by

defendant. However, with the intervention of Local

Commissioner, matter was compromised on 8.11.1990, in

the presence of other respectable persons of the society.

6.10. It is the further case of the plaintiff that as per

the compromise, defendant has relinquished his right over

( 2024:HHC:6168 )

Khasra No.857/1, measuring 0-03-18 hectares to defendant,

which has been shown to be merged in the land bearing

Khasra Nos.865, 866, 867, entered in the name of

.

defendant. It has also been agreed that parties to the lis

shall get the same effected through Court and they had

agreed to give their statement regarding acceptance made

on the spot. However, on 19.9.1993, plaintiff has withdrawn

the said suit.

6.11. As per the plaintiff, thereafter, he had requested

the defendant to get the revenue entries corrected, as per

the compromise, but, the matter was delayed at one pretext

or the other.

7. On the basis of the above facts, the plaintiff has

prayed that the suit may kindly be decreed.

8. When put to notice, the suit has been contested

by the defendant by filing the written statement, in which,

he has taken the preliminary objections; that the plaintiff

has no locus standi; the suit of the plaintiff is time barred;

the suit is not properly valued for the purpose of Court Fee

and jurisdiction; the suit is not maintainable in the present

form; the demarcation report dated 8.11.1990, is against

the High Court Rules and Orders; and the plaintiff is

( 2024:HHC:6168 )

estopped by his act, conduct and acquiescence from filing

the suit.

9. On merits, the factual position, as recorded in

.

the revenue record, has not been disputed and it has also

been admitted that Gian Singh was owner of the old Khasra

No.187, 188 and 190 and he has also got his abadi existing.

It has also been admitted that one Bimla Devi later

purchased complete Khasra No.190 and ½ share in Khasra

No.188 from the plaintiff.

r It has been denied that Bimla

Devi wrongly got merged in her ownership, in which, the

Abadi and courtyard of the plaintiff were situated.

9.1. Elaborating his stand, it has been pleaded that

the plaintiff is a very clever person as after selling the land,

along with his house, comprising old khasra No.190, filed

civil suit against Bimla Devi, in the Court of learned Sub

Judge, Dharamshala and challenged the sale executed by

him in favour of Bimla Devi on the ground of fraud and

misrepresentation. However, the said suit was dismissed on

7.3.1981 and the appeal was also dismissed on 8.4.1985, by

the learned District Judge, Kangra.

9.2. It has also not been disputed that during the

settlement, Khasra No.852, 857, 858, 859, 960, 861, 862,

864, 865, 866, 867 and 853, were carved out from old field

( 2024:HHC:6168 )

No.190 area, measuring 0-52-19 hectares. The fact that

Bimla Devi had sold her share in Khasra No.190, has not

been disputed, which was purchased by Shri Shivya and

.

later on, Shivya was succeeded by Prakash Chand, who has

sold his entire share to defendant.

9.3. Filing of the suit by the defendant has also been

admitted by him. He has also admitted that Ram Rattan

was appointed as Local Commissioner. Rest, he has denied

all the allegations, with regard to the compromise on the

spot, by pleading that no compromise was arrived at, nor,

the Local Commissioner was competent to reduce into

writing the compromise, without the order of the Court.

Hence, a prayer has been made to dismiss the suit.

10. Plaintiff has filed the replication, denying the

preliminary objections, as well as, the contents of the

written statement, by virtue of which, the suit has been

contested, by reiterating that of the plaint.

12. From the pleadings of the parties, the following

issues were framed by the learned trial Court, vide order

dated 21.3.2001:-

1. Whether plaintiff is entitled for declaration, as alleged? OPP

2. Whether plaintiff is entitled for injunction, as prayed for? OPP

( 2024:HHC:6168 )

3. Whether plaintiff has no locus standi? OPD

4. Whether the suit is not within time? OPD

5. Whether the suit is not maintainable? OPD

.

6. Whether demarcation dated 8.11.1990, is not

in accordance with law? OPD

7. Whether the plaintiff is estopped from his act

and conduct from filing the present suit? OPD

8. Relief.

13. Thereafter, the parties to the lis were directed to

adduce evidence. r

14. After closure of the evidence, upon hearing the

learned counsel for the parties, the learned trial Court has

decreed the suit of the plaintiff, vide judgment and decree,

dated 27.09.2006.

15. Aggrieved from the said judgment and decree,

the plaintiff has preferred the appeal before the learned

First Appellate Court, which was allowed and the suit of the

plaintiff was ordered to be dismissed.

16. Feeling aggrieved from the said judgment and

decree, the present appeal has been preferred, before this

Court, on the ground that learned First Appellate Court has

wrongly reversed the findings recorded by the learned trial

Court, without any evidence, on the record, as, the learned

First Appellate Court has made a new case, in favour of the

( 2024:HHC:6168 )

defendant, which is contrary to the material available, on

record, and while doing so, the learned First Appellate Court

has wrongly ignored the evidence, so adduced, by the

.

plaintiff and wrongly accepted the version of the

respondent.

17. On the basis of the above grounds of appeal, Mr.

Bhuvnesh Sharma, learned Senior Advocate assisted by Ms.

Vaishali Lakhanpal and Mr. Parv Sharma, Advocates, has

prayed that the appeal may kindly be accepted, by setting

aside the judgment and decree passed by the learned First

Appellate Court and by restoring the judgment and decree

passed by the learned trial Court.

18. Per contra, Shri Ajay Sharma, Senior Advocate

assisted by Mr. Atharv Sharma, Advocate, has supported the

judgment and decree passed by the learned First Appellate

Court, by contending that the plaintiff has miserably failed

to prove his case, by leading cogent and convincing

evidence.

19. The appeal has been admitted, by this Court, on

the following substantial question of law, on 27.04.2010:-

1. Whether the findings of the Court below are a result of complete misreading, misinterpretation of the evidence and material on record and against the settled position of law?

( 2024:HHC:6168 )

20. Since, the substantial question of law has been

framed regarding misreading and misinterpretation of the

evidence, as well as, material on record, as such, the

.

evidence, so adduced by the parties, is required to be

discussed, by this Court, in order to decide the substantial

question of law.

21. After framing of issues, plaintiff Gian Singh

appeared, in the witness-box, as PW-1, and deposed that he

is owner-in-possession of the suit land. Over the suit land,

he is also having Abadi. According to him, he has not sold

the land pertaining to Abadi, to Bimla Devi and the same

has been taken, by committing a fraud upon him, by Bimla

Devi. According to him, he has sold the land bearing Khasra

No.190 to Bimla Devi, however, she has got incorporated

the area over which, his house is situated, in the sale deed.

Thereafter, Bimla had sold the suit land to Shri Shivya and

Shivya further sold the same to Bhag Singh, but, the area,

underneath the house, is in possession of the plaintiff. Bhag

Singh never remained in possession of the said area. The

settlement proceedings were wrongly conducted and this

ambiguity has not been cleared.

22. This witness has further deposed that Bhag

Singh challenged the wrong entries by way of suit.

( 2024:HHC:6168 )

Thereafter, the Court has appointed the Local

Commissioner. He has further deposed that the Local

Commissioner has visited the spot for demarcation.

.

Thereafter, he has inquired about the Pucca point. He has

proved the copy of the statement, as Ex.PW-1/A, which

bears signature of this witness, as well as, Bhag Singh.

Ex.PW-1/B was also prepared.

23. This witness has further deposed that Local

Commissioner has also disclosed to them that the area of

Abadi, owned by Gian Singh, is in the name of Bhag Singh in

the revenue record and the land of this witness has been

shown to be in the share of Bhag Singh. As per further

deposition of this witness, Local Commissioner has also

directed them not to interfere with land, which is in

possession of the parties. When, the Local Commissioner

has disclosed this fact after demarcation, Bhag Singh has

given offer to compromise the matter. Bhag Singh has

relinquished his share, which is in the possession of this

witness, and this witness has relinquished his share in

favour of Bhag Singh.

24. This witness has further deposed that

compromise was written by Local Commissioner, which

bears signatures of this witness and Bhag Singh. This

( 2024:HHC:6168 )

witness has proved the compromise as Ex.PW-1/C. Bahadur

Singh, Pappu and many other persons were also present

there and they have also signed the compromise.

.

Demarcation was done on the basis of old, as well as, new

documents. The defendant has assured that he will make

the statement in the Court, but, he has not given the

statement in the Court. Thereafter, his case was dismissed.

When, the compromise/agreement was executed between

them, defendant Bhag Singh, was not under any pressure.

He has lastly asserted that he is still honouring the said

compromise, whereas, defendant has resiled from his earlier

commitment. Suit land is owned and possessed by this

witness, whereas, the defendant used to threaten him to

dispossess. As per the compromise, he has prayed that the

suit be decreed.

25. In the cross-examination, this witness has

deposed that sale deed, in the name of Bimla, was executed

in the year 1975. He has denied that vide said sale deed,

he has sold his house and courtyard to Bimla Devi. He has

also admitted that the suit was filed against Bimla Devi at

Dharamshala, but, denied that the same has been

dismissed. He has further admitted that the appeal was

filed before the District Judge, the same is stated to be still

( 2024:HHC:6168 )

pending. He has feigned his ignorance about the fact that

Bimla has further sold the house and land to Shivya. He has

also denied that the possession of the same was handed

.

over to Shivya by Bimla. When, Local Commissioner has

visited the spot, counsel of this witness was not present. No

document was produced before the Local Commissioner.

26. This witness has further deposed that Patwari

was present along with requisite documents. Demarcation

was conducted, on the basis of Latha and with the help of

Jareb. Local Commissioner was directed by the Court to

conduct the demarcation, on the basis of old and new

Khasra numbers. Local Commissioner was not directed to

get the matter compromised. No notice was ever served

upon Bhag Singh regarding the compromise. Rest, he has

denied all the suggestions, which were put to him, by the

learned counsel for the defendant.

27. PW-2, Bahadur Singh, has deposed that the suit

land was Abadi of Gian Singh and the same is possessed by

him. Local Commissioner, Ram Rattan, has demarcated the

land. Kedar Nath, Ex. Pradhan, was also present at the spot.

The Local Commissioner has disclosed to them that the land

owned by Bhag Singh is in possession of Gian Singh,

whereas, the land owned by Gian Singh is in possession of

( 2024:HHC:6168 )

Bahadur Singh and the Local Commissioner has suggested

them to compromise the matter, upon which, both the

parties have entered into the compromise, which was

.

signed by this witness, as well as, by Bhag Singh, Kedar

Nath and Dalip Singh etc. He has duly identified his

signatures over the document Ex.PW-2/A. Compromise was

entered upon by the parties, out of their free will.

28. In the cross-examination, this witness has

deposed that Local Commissioner has conducted the

demarcation on the basis of Latha. Matter was got

compromised by Ram Rattan, Local Commissioner,

however, possession of the respective pieces of land were

not delivered. Rest, he has denied all the suggestions,

which were put to him, by learned counsel for the

defendant.

29. PW-3, Piar Chand, has supported the case of the

plaintiff, in his examination-in-chief and also asserted about

the fact that demarcation was conducted in his presence

and the matter was compromised between the parties.

30. In the cross-examination, this witness has

deposed that the suit land is situated at the distance of one

kilometer from his house. He has denied that Gian Singh

has sold the suit land to Bimla, in the year 1975. He has

( 2024:HHC:6168 )

feigned his ignorance about the fact that Gian Singh has

filed Civil Suit against Bimla regarding the suit land, which

has been dismissed and appeal has also been dismissed.

.

He has also feigned his ignorance regarding the fact that

Bimla Devi has sold the suit land and Abadi to Shivya. He

has feigned his ignorance that after the death of Shivya, his

estate has been inherited by his son Prakash Chand.

Prakash Chand has sold the same to Bhag Singh. Local

Commissioner is stated to have visited the spot in the year

1990. Patwari was present on the spot, along with revenue

record and Latha. The Local Commissioner has conducted

the demarcation, on the basis of Latha. The house tax of

house of Gian Singh is paid by Melo Devi.

31. To rebut this evidence, defendant Bhag Singh has

appeared in the witness-box and tendered his affidavit

Ex.DW-1/A, which is based upon the stand, as taken by him,

in the written statement.

32. In the opening lines of the cross-examination,

this witness has admitted that suit land was owned by Gian

Singh. However, he has shown his ignorance that Gian

Singh was owner of Khasra No.187, 188 and 190 and the

area of the same is 26 kanals 13 marlas. Voluntarily stated

that the area of the same is 14 kanals 3 marlas. He has

( 2024:HHC:6168 )

denied that over the suit land, Gian Singh had constructed

his house. Apart from this, cow shed and courtyard was

there on this land. He has voluntarily deposed that he has

.

purchased the area from Prakash Chand. He has purchased

Khasra No.857 and some joint land from Prakash Chand. He

has feigned his ignorance that during the settlement,

Khasra No.190 was converted into Khasra Nos.857, 865,

866 and 867 and Khasra No.188 was converted into Khasra

Nos.855, 856 and 854.

33. This witness has denied that during the

settlement, the land underneath the Abadi and cow shed of

Gian Singh was changed in his name. He has admitted that

he is owner of Khasra Nos.865, 866 and 867. He has also

admitted that he has filed a suit with regard to Khasra

No.857 and 867, against the defendants and Gian Singh was

one of the defendants. He has also admitted that the Court

has appointed Shri Ram Rattan, as Local Commissioner,

with a direction to conduct the demarcation, on the basis of

old and new khasra numbers. At the time of demarcation

Khajur Singh, Bimla Devi and Gian Singh were present at

the spot. Local Commissioner has visited the spot on

7.11.1990 and 8.11.1990. On 7.11.1990, he has

( 2024:HHC:6168 )

demarcated the land and on 8.11.1990, he has prepared his

report.

34. According to this witness, in the demarcation, the

.

land bearing Khasra No.857, upon which, this witness has

constructed his house and cow shed, was found to be in his

ownership. Voluntarily stated that cow shed was not there,

only house was there. The said house is possessed by Gian

Singh. Possession of house was not obtained from Gian

Singh. He has feigned his ignorance about the fact that

during the demarcation, old khasra No.188 was found to be

part of Khasra Nos.866, 865 and 867. Presence of

Kedarnath, Bahadur Singh, Dalip Singh, Gian Singh, and

Purshotam Chand has not been disputed, but, he has denied

that the compromise has been effected between them.

35. This witness has further admitted that Local

Commissioner has written the compromise. But, again

stated that compromise, does not bear his signatures. The

statement, which was recorded by Local Commissioner, on

7.11.1990, was signed by him. He has admitted his

signatures over the document Ex.PW-1/C. The said

document also bears his signatures of the witnesses.

Voluntarily stated that said signatures were obtained on the

pretext of marking the presence of the persons, which were

( 2024:HHC:6168 )

present there. This witness has further admitted that after

demarcation, he has not appeared before the Court and

directed his counsel to withdraw the case.

.

36. DW-2, Prakash Chand, has deposed that he was

owner-in-possession of the suit land, which, he has inherited

from his father Shivya. Shivya was owner-in-possession of

the land, as well as, the house. This witness has sold the

house and land measuring 14 kanal 3 marla to Bhag Singh

and handed over the possession to him.

r The legal

representatives of Bhag Singh have no concern with the

said land.

37. In the cross-examination, this witness has

admitted that the house is only there on the suit land and

cow shed was not part of the same. He has denied the

suggestion that this house was never sold to Gian Singh by

Bimla Devi. When, this witness sold the land, thereafter,

Gian Singh has filed the civil suit against Bimla and this

witness, on the ground that Bimla has wrongly get the sale

deed executed and according to him the said suit was not

decided in their favour. He has feigned his ignorance, with

regard to the compromise, which had taken place, at the

instance of Local Commissioner.

( 2024:HHC:6168 )

38. Kishori Lal, appeared, in the witness-box, as

DW-3 and has filed his affidavit Ex.DW-3/A, in which, he has

supported the case of defendant, by deposing that the suit

.

land is owned and possessed by Bhag Singh. Prior to the

possession of Bhag Singh, Prakash Chand was owner-in-

possession of the suit land. Said Prakash Chand sold the

suit land, along with land measuring 14 kanals 3 marlas to

Bhag Singh, about 14-15 years ago. Shivya was in

possession of the suit land prior to Prakash Chand. Plaintiff

Gian Singh, as well as, his legal representatives never

remained, in possession of the suit land. Earlier Gian Singh

had sold the land to Bimla Devi and possession was also

handed over to Bimla Devi. But, Gian Singh has filed a suit

against her, which has been dismissed. Bimla, thereafter,

sold the land to Shivya.

39. In the cross-examination, this witness has

admitted that he is not having any land adjoining to the suit

land, as such, he could not disclose the khasra numbers, as

well as, the area of those khasra numbers. No sale deed

was executed, in the presence of this witness. He has also

admitted that whatsoever was mentioned, in the affidavit,

filed by him, in the examination-in-chief, the same is based

( 2024:HHC:6168 )

upon hear say. In the presence of this witness, Bhag Singh

has not handed over the possession to anyone.

40. To rebut this evidence, the plaintiff has examined

.

PW-4, Kuldeep, who has deposed that the land and house

was earlier possessed by Gian Singh and after his death, the

same was in possession of Melo Devi. The said area and

house was never possessed by Bimla Devi, Shivya, Prakash

Chand and Bhag Singh. Earlier, plaintiff was owner of the

same and now, the same is owned by Melo Devi.

r Local

Commissioner visited the spot, in the year 1990. This

witness was also present there, when the demarcation was

conducted. The suit land and house was found to be in the

possession of Gian Singh and the land owned by Gian Singh

was found to be in the possession of Bhag Singh.

Thereafter, the compromise was effected before the Local

Commissioner, agreeing that the ownership will be

transferred, as per their possession.

41. In the cross-examination, this witness has

admitted that on 22.5.1986, defendant has purchased the

suit land, house, as well as, other land measuring 14 kanal 3

marla. He has further admitted that Prakash Chand sold the

entire land and house to defendant Bhag Singh. This

witness was present, on the day, when, the demarcation

( 2024:HHC:6168 )

was conducted. Rest, he has denied all the suggestions,

which were put to him, by the learned counsel for the

defendants.

.

42. This is the entire evidence led by the parties.

43. While decreeing the suit, the learned trial Court

has relied upon the admission of the parties, as well as, the

report of the Local Commissioner.

44. Another ground, upon which, the suit has been

decreed, in this case, is that the defendant could not prove

or probabilize his defence, with regard to the wrong

demarcation. While negating the said contentions, the

learned trial Court has held that at the time of demarcation,

no objection was raised by the defendant.

45. Learned First Appellate Court has reversed the

decree of the learned trial Court, mainly, on the ground that

the report of the Local Commissioner, was not confirmed by

the Court and the Local Commissioner was not examined.

46. The said findings of the learned First Appellate

Court are not sustainable in the eyes of law, as, the suit of

the plaintiff was not decreed, solely, on the basis of the

report of the Local Commissioner, which is required to be

confirmed by the Court, but, on the basis of oral evidence

( 2024:HHC:6168 )

adduced by the plaintiff, as well as, considering the

admission of the defendant.

47. The defendant, in this case, has taken the plea

.

that previously Gian Singh was owner of Khasra No.187, 188

and 190 and also was having Abadi and Bimla Devi has

purchased complete Khasra No.190 and ½ share in Khasra

No.188 from the plaintiff. Filing of the Civil Suit, in which,

the Local Commissioner, has visited the spot, has not been

disputed. r

48. Once, the defendant has admitted his signatures

over the documents, which were prepared by the Local

Commissioner, on the spot and were produced on record, as

Ex.PW-1/A, Ex.PW-1/B and Ex.PW-1/C, then, without any

cogent evidence, the plaintiff cannot be dis-entitled from

the relief, for which, he has proved his case, by leading

cogent and convincing evidence.

49. It seems that the defendant wants to take the

benefit of his own wrong, as, instead of obtaining decree

from the Court, on the basis of compromise, which had

taken place on the spot, he has cleverly withdrawn the

earlier suit and forced the plaintiff to file the present suit on

the basis of the said compromise.

( 2024:HHC:6168 )

50. It is not in dispute that the Local Commissioner

was not authorized to get the compromise effected on the

spot, but, when, the parties to the lis voluntarily expressed

.

their intention, on persuasion of the Local Commissioner,

then, there is no bar for the Local Commissioner to get the

matter settled on the spot.

51. It is a specific case of the plaintiff that the report

of the Local Commissioner was submitted in the Court and

before the parties could make the statement before the said

Court, the suit was withdrawn.

52. It is not the case of the plaintiff that the land

owned by him is not in possession of the defendant. He has

pleaded the case that the suit land is in his possession and

he has claimed ownership over it, on the basis of the

compromise, by pleading that his land was found to be in

possession of defendant Bhag Singh.

53. Hence, the approach of the learned First

Appellate Court in reversing the well reasoned judgment

and decree, passed by the learned trial Court, merely, on

the grounds that the Local Commissioner has not been

examined and the report of the Local Commissioner was not

confirmed, by the Court, as well as, objections to the report

of the Local Commissioner have not been raised by the

( 2024:HHC:6168 )

defendant and it was for him to plead and prove, as to why

the report is not liable to be relied upon to grant the relief to

the plaintiff, is not sustainable, in the eyes of law.

.

54. When, the demarcation has been conducted to

the satisfaction of the parties, then, the approach of the

learned First Appellate Court to raise suspicion, on the

report of the Local Commissioner, merely, on the ground

that the demarcation was done with the help of Latha, is not

sustainable in the eyes of law and it is the satisfaction,

which is material, as no objection has been filed, by the

defendant to the report of the Local Commissioner and in

order to get rid of the compromise, which had taken place,

he has withdrawn the suit.

55. In this case, plaintiff Gian Singh was asserting his

ownership and possession over the suit land on the ground

that in the demarcation, the same was found to be in his

possession and his land was found to be in possession of

the defendant. Hence, on the basis of the compromise,

both the parties, had agreed to satisfy themselves, with the

land, which was in their possession at the time of

demarcation.

56. Learned counsel appearing for the defendant

could not satisfy the judicial conscience of this Court, as to

( 2024:HHC:6168 )

how the learned First Appellate Court was right in interfering

with the judgment and decree of learned trial Court, when,

the learned trial Court, has rightly appreciated the evidence,

.

so adduced before it.

57. No other point urged or argued.

58. In view of the above discussion, this Court is of

the view that the findings of the learned First Appellate

Court are perverse and a case has been made out by the

learned Appellate Court, which, even, had not been pleaded

by the parties, as such, the findings of the learned First

Appellate Court are not sustainable, in the eyes of law, and

the same are liable to be set aside, by restoring the

judgment and decree passed by the learned trial Court.

59. In view of the discussion made above, the

substantial questions of law, so framed by this Court, are

decided in favour of the appellant.

60. Consequently, the appeal is allowed and the

judgment and decree passed by the learned First Appellate

Court is set aside, by restoring that of the learned trial

Court.

61. Decree sheet be prepared accordingly.

62. Record be sent back.

                                                (Virender Singh)
    July 30, 2024(ps)                                Judge