1. The present regular second appeal has been maintained by the appellant/defendant No. 1 (hereinafter referred to as ''defendant No. 1'') assailing the judgment and decree, dated 20.10.2006, of the learned District Judge, Shimla, H.P. passed in Civil Appeal No. 115-S/13 of 2005, upholding the judgment and decree, dated 01.10.2005, passed by learned Civil Judge (Senior Division) Court No. (II), Shimla, H.P., passed in Civil Suit No. 120-1 of 1999, whereby the suit of the plaintiffs/respondents No. 1 & 2 (hereinafter referred to as ''the plaintiffs'') was decreed.
2. Brief facts giving rise to the present appeal are that the plaintiffs maintained a suit for permanent prohibitory and mandatory injunction against the respondents. The plaintiffs alleged that they are owners of land comprising in Khewat Khatauni No. 99/187, Khasra No. 340/297 (831 new), measuring 143.89 square meters, situate in Mauza Kanlog, Tehsil and District Shimla (hereinafter referred to as ''the suit land''). It was further averred by the plaintiffs that they had purchased the suit land vide sale deed No. 454, Book No. 1, dated 31.12.1994 from Smt. Lalita, Smt. Savita Kumari, Smt. Shobha Kumari, Shri Vipan, Shri Punit and Shiri Vaneet and Mutation No. 114, dated 23.12.1997, was entered in their favour. Defendant No. 1 also purchased adjacent plot, measuring 0.5 biswas, and he constructed a four storeyed building thereon. As per the plaintiffs, defendant No. 1 raised construction of his stairs on their land, thus the plaintiffs requested him to demolish the stairs, however, he asserted that the stairs would be used by both the parties. It was further alleged by the plaintiffs, that due to the construction of the stairs by defendant No. 1, their land became useless, unequal from all sides and house with proper alignment cannot be constructed thereon. It was alleged that the said stairs did not find mention in the map of defendant No. 1, which has been approved by defendant No. 2 (respondent No. 3 herein). As per the plaintiffs, defendant No. 1 did not remove the stairs, hence the present suit.
3. Defendant No. 1, by filing written statement, resisted and contested the claim of the plaintiffs. He took preliminary objections qua maintainability, estoppel and suppression of facts. On merits, defendant No. 1 denied the ownership of the plaintiffs. He contended that stairs have been built on his own land and in natural profile. No portion of the stairs falls in the suit land, thus the plaintiffs have no concern with the same. He further denied that no assurance qua use of the stairs had been given by him. As per defendant No. 1, the suit has been filed just to harass him.
4. Defendant No. 2 (respondent No. 3 herein), by way of filing the written statement, raised preliminary objection, viz., maintainability, cause of action and that the suit is bad for notice under Section 393 of the H.P.M.C. Act, 1994. On merits, it is contended that the spot was inspected by officials of defendant No. 2 and it transpired that stairs have been constructed in natural profile. Lastly, it has been contended that encroachment can only be ascertained in case the land is demarcated by the Revenue Agency and demarcation aspect is only between the plaintiffs and defendant No. 1 and defendant No. 2 has nothing to do with the same.
5. The plaintiffs, by way of filing replication, denied the contents of written statements and reiterated the averments made in the plaint.
6. The learned Trial Court on 16.04.2002 framed the following issues for determination and adjudication:
"1. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction and mandatory injunction against the defendants, as prayed for? OPP.2. Whether the suit is not maintainable? OPD3. Whether the plaintiffs are estopped to file the present suit? OPD-14. Whether the suit is bad for non service of notice under Section 392 of H.P.M.C. Act, 1994? OPD-25. Whether the plaintiffs have no cause of action? OPD-26. Relief."
7. After deciding issue No. 1 in favour of the plaintiffs, issues No. 2 to 5 against the defendants, the suit of the plaintiffs was decreed. Subsequently, defendant No. 1 preferred an appeal before the learned Lower Appellate Court which was also dismissed. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law:
"1. Whether the learned Courts below have committed serious illegality by not considering that the alleged demarcation report, Ex. PW-3/A, and the orders, Ex. PW-3/C passed by the Revenue Officer are in violation and dehors the provisions of Section 107 of the HP Land Revenue Act and Clause 10.2 of the HP Land Records Manual and also in violation to the rules and the instructions issued by the Financial Commissioner (Revenue) to the Government of HP with regard to the carrying out the demarcation in case of boundary disputes?"
8. I have heard the learned counsel/Senior Counsel for the parties.
9. The learned Senior counsel for the appellant has argued that the demarcation was conducted without determining the pucca points and earlier also the land was demarcated, thus the judgments passed by the learned Courts below are required to be set aside. Conversely, the learned counsel for respondents No. 1 & 2 has argued that the judgments and decrees passed by both the learned Courts below are after properly appreciating the facts, which have come on record, to their right perspective. He has further argued that the demarcations have been conducted as per law and the learned Courts below have not committed any violation of the provisions of Section 107 of H.P. Land Revenue Act and Clause 10.2 of the H.P. Land Records Manual and the same have been properly applied while carrying out demarcation. Therefore, there is no question of law involved in the present appeal and the same may be dismissed.
10. The learned Senior Counsel for the appellant, in rebuttal, has argued that when earlier demarcation was not proved on record, then subsequent demarcation could not have been taken into consideration.
11. In order to appreciate the rival contentions of the parties, I have gone through the records in detail.
12. Precisely, the stairs constructed by defendant No. 1 is the bone of contention in the present case. As per the plaintiffs, the stairs have been constructed on their land by defendant No. 1.
13. PW-1, Shri Inder Pal (plaintiff No. 1), has deposed that the defendant No. 1 purchased 163 square meters land adjacent to his land and built a four storeyed house thereon. As per this witness, initially defendant No. 1 constructed stairs on his own land, however, the same were dismantled and new stairs were constructed on his land by defendant No. 1 by encroaching approximately 50 square meters land. PW-1 has further stated that demarcation was applied by him and four notices were issued to the defendant and he was served thrice, however, he did not turn up. Consequently, Kanungo gave his report qua the encroachment of 50 meters by defendant No. 1. He has further deposed that notice was also issued to defendant No. 1 when the land was demarcated.
14. Plaintiffs have examined Shri Raj Kumar, Field Kanungo, as PW-3. He has deposed that after demarcation it was unearthed that there was encroachment to the extent of 50.75 square meters on the land of the plaintiffs. He has also proved the demarcation report, Ex. PW-3/A, and tatima, which was prepared by him. As per this witness, defendant was served with notice to join demarcation and final order, Ex. PW-3/C, dated 18.10.2002, had been passed by the Tehsildar. This witness in his cross-examination has stated that after ascertaining pucca points, demarcation was carried out through triangular method. This witness did not specify the nature of encroachment and he stated that demarcation was carried out as per the settled procedure and instructions issued under the H.P. Land Revenue Manual.
15. The plaintiffs tried to get the benefit of photographs, Ex. PW-1/C to Ex. PW-1/F, of the spot, however, nothing has come in the statement of the plaintiff (PW-1) about when these photographs were taken, who has taken these photographs and these pertain to which land. Certainly, photographs could not establish the exact place where they were taken and moreover construction is always proved by the demarcation report and not by the photographs.
16. Shri Bhavesh Chaturvedi, Junior Engineer, Municipal Corporation, was examined as DW-1 by defendant No. 2. This witness has proved the certified copy of the proposed plan, Ex. DW-1/A, of defendant No. 1. As per this witness, on the spot stairs have been constructed in natural profile, however, this witness did not tell anything about the demarcation. Defendant No. 1 stepped into the witness-box as DW-2 and has deposed that he had constructed stairs about 14/15 years ago. He has further stated that he received a notice qua demarcation and also prayed for change of date. Thus, it is apparently proved that defendant No. 1 had the knowledge that demarcation proceedings are going against him. Defendant No. 1 did not state that he constructed the stairs on his own land after getting his land properly demarcated. Before constructing the stairs, defendant No. 1, did not ascertain whether the land belongs to him or not. He has further denied that it was in his knowledge that the final notice qua demarcation was received by his wife. He has also denied having knowledge that after demarcation encroachment was found to the extent of 50.75 square meters. Thereafter, he came up with the new plea that the land belongs to the State Government, however, this plea was not taken by him in the written statement. Moreover, no evidence qua this fact has come on record. Defendant No. 1 has further stated that he had taken demarcations of the land before starting the construction, but he has not produced on record any such demarcation report.
17. Now when the demarcation report is there and the Kanungo (PW-3) has specifically stated that he has followed the settled procedure while conducting demarcation and it has also come on record that PW-3 he conducted the demarcation on the basis of aks sajra and he was competent to give demarcation. Demarcation report, Ex. PW-3/A, clearly and unequivocally demonstrates the manner in which Field Kanungo (PW-3) carried out the demarcation. PW-3, Raj Kumar, Field Kanungo, was cross-examined at length, however, nothing much to fortify the case of defendant No. 1 could be extracted from him. Field Kanungo prepared the site plan, Ex. PW-3/B, solely on the basis of aks sajra. Apparently, order dated 18.10.2002, passed by Assistant Collector 2nd Grade reveals that defendant No. 1 did not appear before him and the said report was confirmed. On close scrutiny of the evidence on record it has come that defendant No. 1 was having knowledge that demarcation proceedings are pending against him, as notices were issued to him and his wife, however, he did not turn up and chosen not to file any objections in the demarcation proceedings. Defendant No. 1 pleaded that earlier also several times demarcations have been taken, however, no record qua previous demarcations has seen the light of the day. Thus, it can be said that defendant No. 1, without having proper demarcation of his land, started raising construction of stairs. Defendant No. 1 took another plea that the stairs have been constructed in natural profile, however, this plea is also hollow, as defendant No. 1 had no right to raise construction of his stairs on a land which does not belong to him. The plea of defendant No. 1 that stairs have been constructed in the government land is also not proved by him. Defendant No. 1 failed to prove his pleas that he raised construction of his stairs on his own land and if not so, the same was raised on the government land. Therefore, the only conclusion is that defendant No. 1 had made the construction of his stairs on the land of the plaintiffs and this fact is further fortified by demarcation report, Ex. PW-3/A. Now, it can be safely held that defendant No. 1 had no right to raise construction on the land of the plaintiffs. The only question of law, as framed in the present appeal, is answered by holding that both the learned Courts below have committed no illegality in appreciating demarcation report, Ex. PW-3/A, and order, Ex. PW-3/C, passed by the Revenue Officers. The demarcation was also carried out as per the law, after taking pucca points, thus the same is legal and valid.
18. Resultantly, the findings arrived at by both the learned Courts below needs no interference, as the plaintiffs have proved their case that defendant No. 1 has raised construction of his stairs over the land owned and possessed by the plaintiffs. In these circumstances, this Court finds that both the learned Courts below have not committed any illegality while appreciating the demarcation report, Ex. PW-3/A, and order of Tehsildar dated 18.10.2002, Ex. PW-3/C, which are in accordance with law. Thus, the substantial question of law is answered accordingly and the instant appeal, which sans merits, deserves dismissal and is dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs.
19. Pending miscellaneous application(s), if any, also stand(s) disposed of.
