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2026 DAILYLAW 16620 (HP)

Naresh Chand v. Kalashan Devi

2026-03-06

Romesh Verma

body2026
JUDGMENT : ROMESH VERMA, J. The present Regular Second Appeal arises out of the judgment and decree as passed by the learned District Judge, Kangra at Dharamshala, District Kangra, H.P. dated 07.04.2025, whereby the appeal preferred by the appellants/defendants has been ordered to be dismissed and the judgment and decree as passed by the learned Senior Civil Judge, Dharamshala, Disrict Kangra, H.P. dated 29.09.2023, whereby the suit filed by the plaintiff was ordered to be decreed, has been affirmed. 2. Brief facts of the case are that respondent- plaintiff Kalashan Devi wife of Sh. Pritam Chand  filed the suit for Permanent Prohibitory Injunction on the averments that she is owner of the land bearing khata No. 81, Khatauni No. 112, Khasra No.252/1/2, area measuring 0-19-23 hectares and Khasra No.252/1/3 area measuring 0-00-08 hectares, total area measuring 0-19-31 hectares, as per jamabandi for the year 2007-2008 situated at Mohal Lanjot, Mauza Basnoor, Tehsil Shahpur, District Kangra, H.P.(hereinafter referred to as the suit land). It was averred that the defendants have got no concern with the suit land, but they are the owners of the adjoining land. The defendants encroached the land of the plaintiff in the year 2010. When plaintiff requested them and their predecessor to stop their legal acts, consequent to that, they filed a suit seeking relief of Permanent Prohibitory Injunction against the plaintiff and her husband. The plaintiff moved an application for demarcation to the revenue authorities on 2.1.2013 and the authorities appointed Sh. Rajinder Kumar retired Tehsildar, as Local Commissioner vide order dated 2.1.2013 passed in case 1/13, titled as Kalashan Devi vs. Naresh Chand and others. In pursuant to the directions of revenue authorities, the Local Commissioner demarcated the land and submitted his report to the Assistant Collector, who accepted and affirmed the report vide its order dated 15.02.2013. 3. It was averred in the plaint that in the demarcation, the defendants were found to have encroached the suit land bearing Khasra No. 252/1/3/1, area measuring 0-00-24 hectares and Khasra No. 252/1/2/1, area measuring 0-00-38 hectares owned by the plaintiff. It was submitted that at the time of demarcation, the statements of the parties were recorded by the Revenue Officer, however, the defendants intentionally and willfully in order to defeat the rights of the plaintiff refused to record their statements before the Revenue Officer. It was submitted that at the time of demarcation, the statements of the parties were recorded by the Revenue Officer, however, the defendants intentionally and willfully in order to defeat the rights of the plaintiff refused to record their statements before the Revenue Officer. In order to wriggle out of the said demarcation,the defendants made various complaints at different Forums in order to harass and to create prejudice against the plaintiff. Therefore, under such circumstances, the suit was filed for possession on the basis of the demarcation report which has been carried out by the Revenue Officer i.e Sh. Rajinder Kumar, retired Tehsildar. 4. The suit was contested by the defendants on various grounds. The defendants raised the plea of maintainability, cause of action, estoppel etc. On merits, it was stated that the land bearing Khata No. 84, Khatauni No. 115, Khasra No. 253/1, area measuring 0-37-51 hectares is coming in possession of the defendants since 1970 when the land was allotted to their predecessor. The allegations as levelled in the plaint were denied and it was stated that they have no concern with the land of the plaintiff. It was averred that the plaintiff along with her husband are interfering in possession of the defendants. The allegations of encroachment as levelled by the plaintiff were denied in toto. Qua the encroachment, it was stated that the report of the Local Commissioner is not legal and valid and the same has not been prepared in accordance with the instruction of the Financial Commissioner, as envisaged by the State of H.P. Therefore, under such circumstances, the defendants prayed for the dismissal of the suit. 5. The plaintiff filed replication, where by all the contents as made in the plaint were reiterated. 6. The learned trial Court framed the issues on 21.08.2013 in the following manner: 1. Whether plaintiff is entitled for the relief of possession as prayed ? OPP 2. Whether plaintiff is entitled for the relief of permanent prohibitory injunction? OPP 3. Whether suit is not maintainable? OPD 4. Whether plaintiff has no cause of action and locus standi to file the suit? OPD 5. Whether suit is barred by provision of limitation? OPD 6. Whether plaintiff is estopped from filing the suit by way of her act and conduct? OPD 7. Whether suit is bad for non-joinder of necessary parties? OPD 8. OPD 4. Whether plaintiff has no cause of action and locus standi to file the suit? OPD 5. Whether suit is barred by provision of limitation? OPD 6. Whether plaintiff is estopped from filing the suit by way of her act and conduct? OPD 7. Whether suit is bad for non-joinder of necessary parties? OPD 8. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD 9. Relief. 7. Learned trial Court directed the parties to adduce evidence in support of the contentions and finally, the learned Senior Civil Judge, Dharashala, District Kangra, H.P. vide its judgment and decree dated 29.09.2023, decreed the suit filed by the plaintiff and defendants No. 1 to 3 were directed to handover the vacant possession of the encroached portion of the suit land i.e land bearing 252/1/3/1, area measuring 0-00-24 hectares and Khasra No. 252/1/2/1, area measuring 0-00-38 hectares Mohal Lanjot, Mauza Basnoor, Tehsil Shahpur, District Kangra, H.P. and as shown in demarcation report Ext. P-3 and tatima Ext. P-7. Further defendants were restrained from causing any kind of interference over the suit land which is in possession of the plaintiff. 8. Feeling dissatisfied, the defendants /appellants filed an appeal before Learned First Appellate Court which was dismissed by it on 07.4.2025. 9. Still feeling aggrieved, the defendants/appellants have approached this Court by filing the present Regular Second Appeal. 10. I have heard Sh. Vivek Thakur, learned counsel for the appellants and Mr. Jagdish Thakur, Advocate, for the respondent. 11. With the consent of the parties, the case is finally decided at the admission stage. 12. The specific case of the plaintiff before the learned trial Court was that the defendants have encroached upon a portion of the suit land. This fact was established and proved when demarcation was carried out to  ascertain  the  extent  of  the  encroachment. The respondent/plaintiff had filed an application for demarcation of the suit land before the revenue authority and in pursuance to the same Sh. Rajinder Kumar, retired Tehsildar was appointed as Local Commissioner, vide order dated 02.01.2013, in case titled as Kalashan Devi vs. Naresh Chand and he demarcated the land of the plaintiff on 22.01.2013 and the said report was affirmed by the Tehsildar/ Assistant Collector 1st Grade on 15.02.2013. In the said demarcation, the suit land was found to have been encroached upon by the defendants. 13. In the said demarcation, the suit land was found to have been encroached upon by the defendants. 13. It is contended by the learned counsel for the appellants that the demarcation report on which both the Courts below have relied upon does not meet the essential requirements of law since it is in conflict with the Financial Commissioner Rules and Instruction as framed by the State of H.P. 14. It is contended by Sh. Vivek Thakur, Advocate, for the appellants that neither three permanent points were fixed by the Local Commissioner nor the statements of the parties were recorded on the spot. He further submits that the procedure prescribed in the Financial Commissioner Rules, has not been adhered to as a result of which said demarcation report is of no consequence and is liable to be rejected. 15. On the other hand Sh. Jagdish Thakur, Advocate, for the respondent has vehemently submitted that the simple case of the plaintiff/respondent is that the defendants/ appellants have encroached over the suit land and they are interfering constantly in her ownership and possession. The plaintiff got demarcated the suit land and in the demarcation, it has been found that the land in question has been encroached upon by the defendants. 16. In order to substantiate its case, the plaintiff appeared as PW-5 in the witness Box. She has reiterated the averments as made in the plaint and in the cross examination, she admitted that she did not raise any objection that some portion of Khasra No. 252/1 is part of Khasra No. 253. She deposed that defendants had given assurance that they would vacate the encroachment. However, the same was not done by the defendants. 17. The most important witness in the present case examined by the plaintiff is Sh. Rajinder Prasad ( PW- 1), who has categorically stated in his deposition that he had demarcated the suit land on 22.1.2013 and he carried out the demarcation in the presence of both the parties and the witnesses present on the spot. He submitted that he prepared the demarcation report and recorded the statement of plaintiff and prepared the tatima. In the cross examination, he clarified that he had carried out the demarcation in accordance with law as he had remained with the Revenue Department for considerable period of 39 years. He submitted that he prepared the demarcation report and recorded the statement of plaintiff and prepared the tatima. In the cross examination, he clarified that he had carried out the demarcation in accordance with law as he had remained with the Revenue Department for considerable period of 39 years. He has stated that the persons present on the spot had mentioned about the permanent points which were further verified. He further stated that the written intimation was sent to the defendants through Chowkidar. It was specifically denied by him that he did not call defendant No.1 deliberately. 18. The plaintiff also examined PW-2 Bidhi Chand, who happens to be the brother of the plaintiff. He has also deposed on the same lines as has been deposed by the plaintiff. 19. In order to rebut the case of the plaintiff, defendant No.1 entered in the witness box as DW-6. In his deposition, he has admitted that his father had filed a Civil Suit against the plaintiff, which was dismissed by the learned trial Court. Though appeal was preferred against the dismissal of the suit but the appeal was also dismissed. He admitted that he had filed a complaint before the Police under provisions of SC&ST Act against the plaintiff and her family members. He admitted that various litigations are going on between the parties which is the out-come of the boundary dispute between the parties. Thereafter the defendant examined DW-1 Rajiv Kumar,DW2 Om Prakash, DW-3 Narinder Singh , DW-4 Mehar Chand and DW-5 Parkash Chand retired Kanungo. 20. In the present case, the entire case hinges around the report of the Local Commissioner Ext. P3 prepared by Rajinder Prasad, retired Tehsildar. As per the report of the said Revenue Officer, the defendants were found to have encroached upon the suit land. In that regard, the Local Commissioner had also prepared the tatima ,which is part of the case file. 21. The learned counsel for the appellants has strenuously argued that the report of the Local Commissioner Ext.P-3 prepared by Sh. Rajinder Prasad is illegal and wrong since it does not fulfill the parameters as laid down by the law and it is based on no evidence. He further  submits  that  the  said  report  is  against  the instructions of the Financial Commissioner as prescribed in para 10 (2) of H.P. Land Record Manual. Rajinder Prasad is illegal and wrong since it does not fulfill the parameters as laid down by the law and it is based on no evidence. He further  submits  that  the  said  report  is  against  the instructions of the Financial Commissioner as prescribed in para 10 (2) of H.P. Land Record Manual. He submits that as per the instructions, the Local Commissioner was required to have fixed three permanent points in order to identify the suit land. The statements of the parties were not recorded on the spot which has caused prejudice to them. Similarly, no notices were issued to the defendants as a result of which the report has been prepared at their back and they have been condemned unheard. As per Ext.P-3, the demarcation was conducted in the presence of the plaintiff, wife of defendant No.1, defendants No. 2 and 3, Pradhan, Gram Panchayat, Ward Member and Bhimo Devi on 22.01.2013. The demarcation has been conducted in the presence of both the parties and three permanent points were fixed by the said Revenue Officer/Local Commissioner. The chain from point A to point B and further from point B to point C is correct. The permanent points were ascertained with the help of the chain where it met the boundary of Khasra No. 279/251, which was accepted by the party. The permanent points ABC were duly ascertained on the spot and the same were acknowledged by the respective parties. After conducting the demarcation, the Local Commissioner recorded the statements of the parties but the defendants having found that encroachment has been found on their part over the land of the plaintiff refused to make the statements before the Local Commissioner. The Courts below have rightly relied upon the report of the Local Commissioner Ext.P-3 and tatima Ext. P-7, which has been prepared in accordance with the law. In the opinion of this Court, there is no infirmity and illegality in the demarcation report Ex. P-3 and the same has been prepared in consonance with the instructions of the Financial Commissioner. It has also been observed by the Courts below that while the plaintiff was being cross examined as PW-5, suggestion was put to her that she did not raise any objection that some portion of Khasra No. 252/1 is part of Khasra No. 253. P-3 and the same has been prepared in consonance with the instructions of the Financial Commissioner. It has also been observed by the Courts below that while the plaintiff was being cross examined as PW-5, suggestion was put to her that she did not raise any objection that some portion of Khasra No. 252/1 is part of Khasra No. 253. By giving the suggestion, the defendants have clearly admitted that suit land falls in Khasra No. 253. 22. The plaintiff has been able to establish the allegations of encroachment which have been proved by the demarcation report Ext.P-3 and tatima Ext.P-7. The Courts  below  have  concurrently  and  rightly  held  the plaintiff to be entitled for the grant of decree of vacant possession of the encroached portion of the suit land i.e land bearing Khasra No. Khasra No. 252/1/3/1, area measuring 0-00-24 hectares and Khasra No. 252/1/2/1, area measuring 0-00-38 hectares situated at Mohal Lanjot, Mauza Basnoor, Tehsil Shahpur, District Kangra, H.P. which has been depicted in the demarcation report Ext.P-3 and the tatima prepared as Ext.P-7. 23. The Courts below have rightly granted decree of Injunction against the defendants from causing any scope of interference over the remaining portion of the suit land. 24. The Hon’be Apex Court has repeatedly held that while exercising power under Section 100 C.P.C the power of the High Court to interfere in the concurrent findings of fact is very limited. In the present case, both the Courts have recorded the findings of fact which do not call for any interference. The Hon’ble Apex Court in Brij Narayan Shukla (dead) through Legal representatives vs. Sudesh Kumar alias Suresh Kumar (Dead) through Legal Representatives and others (2024) 2 Supreme Court Cases 590 has held as under: “10.2The High Court was hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908 (“CPC’) and it having reappreciated the findings to disturb findings of fact, committed an error.” 25. Similarly, The Hon’ble Supreme Court in Naresh and others vs. Hemant and others (2022) 18 Supreme Court Cases 802 has held as under: “10. The High Court invoked the presumption without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. Similarly, The Hon’ble Supreme Court in Naresh and others vs. Hemant and others (2022) 18 Supreme Court Cases 802 has held as under: “10. The High Court invoked the presumption without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW I in his evidence. The fact remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal. 14. The order of the High Court interfering with concurrent findings of the the trial court and the first appellate court are restored. The suit of the plaintiff Court is consequently set aside. The orders dated 6-3-1998 and 13-6-2012 is dismissed. The present appeal is allowed.” 26. There is no question of law much less any substantial questions of law, which arises in the present appeal for consideration. Therefore, present appeal being devoid of any merit deserves to be dismissed. 27. Ordered accordingly Pending application(s), if any, also stands disposed of.