RATTAN CHAND Vs. NANKU

JUDGEMENT

(1.) THIS appeal has been preferred by the plaintiff against the judgment and decree of learned Appellate Court, partly reversing the judgment and decree passed by the learned trial Court decreeing the suit of the appellant -plaintiff restraining the defendant from causing any interference in the ownership and possession of the plaintiff and proforma defendant over the suit land comprised in Khewat No. 43 min Khatauni No. 50 min, Khasra No. 162 measuring 0 -09 -52 hectares situated in village Harlyan Illaqua Hatli, Tehsil Sarkaghat, District Mandi. The learned trial Court further restrained the defendant from raising any construction on the suit land by extending other boundary marks affixed. The revenue authorities were also directed to carry out the necessary corrections in accordance with the . settlement musabi by incorporating the correct karukans of Khasra No. 162.

(2.) THE defendant appealed. The learned District Judge reconsidered and re -appreciated the entire facts and evidence on record. The suit was filed by the plaintiff for permanent prohibitory injunction and in the alternative for mandatory injunction with respect to the suit land comprised in Khasra No. 162, measuring 0 -09 -52 hectare situated in village Harlyan which was earlier recorded in the ownership and possession of Shri Sukh Ram, father of the plaintiff and now inherited by the plaintiff and proforma defendant in equal shares. It was pleaded that adjoining to the suit land, land comprised in Khasra No. 161, measuring 0 -01 -84 hectare is recorded in the ownership of the defendant and his brother deceased Hari Singh. Consolidation proceedings were concluded in the year 1984 -85 and the defendant applied for demarcation of these two Khasra Nos. 161 and 162, which was carried out by the field agency when the plaintiff's area was reduced by one metre in width and 29 metres in length. This demarcation was not accepted nor any report was submitted by the Kanungo. The case pleaded was that taking undue advantage of wrong demarcation, the defendant - respondent wanted to raise construction on the land belonging to the plaintiff for which a decree for permanent prohibitory injunction and decree of mandatory injunction, in case any construction was raised, was prayed for.

(3.) ON the oral evidence, the learned Appellate Court concluded that the suit was rightly filed for permanent prohibitory injunction and for mandatory injunction in case the defendant succeeded in carrying out construction over Khasra No. 162, owned by the plaintiff or the boundary of Khasra Nos. 161 and 162. The Court then proceeds that to prove that construction has been raised by the defendant over the land owned and possessed by the plaintiff, demarcation should have . been obtained from the revenue agency and such report should have been proved in accordance with law to substantiate the submission that construction had been raised over this part of the land of the plaintiff. This course of action was never followed. Instead of applying for demarcation and appointment of the Local Commissioner, the plaintiff filed an amended plaint. The suit was filed for declaration in the form of mandatory injunction for correction of the revenue record. Issues were also settled on these pleadings. The learned Court then considers that the learned trial Court has rendered its findings on some observations made by the Patwari though he was not competent to carry out demarcation with respect to clerical errors that may have crept up in the revenue record during consolidation. The appropriate remedy for the plaintiff according to the learned Appellate Court was to apply to the Consolidation authorities by filing an application or revision before the Consolidation authorities for correction of any clerical error which may have crept up which course was not followed.