HARI SINGH & OTHERS Vs. PIAR CHAND

JUDGEMENT

(1.) The instant Regular Second Appeal is directed against the impugned judgment and decree rendered by the learned Additional District Judge, Chamba, in Civil Appeal No. 12/2013 of 26.10.2013, whereby it set aside the judgment and decree of 17.4.2013 rendered by the learned Civil Judge (Jr. Div), Chamba in Civil Suit No. 15/2009.

(2.) Since the appeal stood admitted by this Court on the following substantial questions of law, consequently this court would confine itself to decide the appeal by merely meteing an answer to them.

(3.) Uncontrovertedly the parties at lis before this Court are holding the suit land as co-owners. The respondent/plaintiff (for short "the plaintiff") herein had instituted a suit against the appellants/defendants (for short "the defendants") both for the relief of permanent prohibitory injunction as well as for the relief of mandatory injunction anvilled on the factum of the defendants raising construction on land held jointly as coowners by the parties at lis, more particularly qua the best and valuable portion of the jointly owned land intra-se them comprised in Khata/Khatoni No. 26/39, Khasra Nos. 308, 337, 338, 339, 342, 695/343 measuring 28-01-00 bighas, situated at Mauja Saladi, Pargna Diur, Tehsil Salooni, District Chamba (for short the "suit land"). The plaintiff omitted to adduce any material before the learned Trial Court in portrayal of the factum of the defendants subjecting the jointly owned suit land to construction. The best evidence in portrayal of the defendants subjecting the best and valuable portion of the suit land jointly owned as co-owners by the parties at lis stood comprised in a valid demarcation held qua the suit land alongwith land contiguous to it by a competent Revenue Officer in sequel whereto a demarcation report stood prepared yet the aforesaid best evidence remained unadduced by the plaintiff obviously besides as a natural corollary the plaintiff also omitted to underscore the factum as contended by the defendants in their written-statement of theirs not subjecting any portion of the jointly owned suit land intra-se them to construction rather theirs utilizing for construction land comprised in Khasra No. 694/343 which occurs in contiguity to the suit land. Construction by the defendants on the land comprised in the latter khasra Nos when manifested in their written-statement to stand exclusively owned and possessed by them would in case proven to stand raised thereon would obviously non-suit the plaintiff. The defendants though to foist tenacity to the contention embodied therein of theirs subjecting the land comprised in khasra Nos. aforesaid to construction, land whereof comprised therein stood contended to be exclusively owned and possessed by them relied upon a demarcation carried out by the demarcating officer concerned who in sequel thereto prepared a demarcation report comprised in Ex.DW-1/A. Even though Ex.DW-1/A unfolds the factum of the demarcating officer holding a demarcation of the land comprised in Khasra No. 694/343 located in contiguity to the suit land and of his on his holding demarcation of land comprised in khasra No. 694/343 besides of suit land located in contiguity thereto his detecting of the defendants utilizing the land comprised in khasra No. 694/343 to construction. However, portrayals therein cannot foist any proven tenacity to the apposite averments embodied in the written-statement of the defendants of the latter subjecting the khasra No aforesaid to construction land borne whereon stands denoted in the apposite revenue record to stand exclusively owned and possessed by them especially no disclosure manifested therein qua the prime factum of the demarcating officer concerned prior to his holding demarcation of the suit land contiguously located with khasra Nos. aforesaid eliciting under the recorded statements of the parties at lis their respective consensus ad idem qua the fixed points wherefrom he held a valid demarcation of the suit land alongwith the land contiguously located with it borne on Khasra No. aforesaid. Since the prior elicitation by the Revenue Officer concerned under a recorded consensus ad idem of the parties at lis qua the fixed points wherefrom he held leverage to hold a valid demarcation, was an enjoined obligation fastened upon him under the apposite Rules, obviously when for the reasons aforestated of none of the parties at lis prior to the demarcating Officer concerned holding demarcation of the suit land alongwith the land contiguously located with it bearing Khasra No. aforesaid meteing under their respective statements recorded in writing by the Officer concerned their consensus ad idem to him qua the fixed points wherefrom the demarcating officer proceeded to hold demarcation of suit land alongwith the land contiguously located with it bearing Khasra No. aforesaid renders it hence to not command any sway for thereupon this Court standing constrained to form a conclusion of any portrayal therein carrying any worth for succoring the contention of the defendants of theirs subjecting to construction the khasra Nos. aforesaid exclusively owned by them. Moreover there is no apt evidence adduced on record in personification of the factum of the Revenue officer concerned before proceeding to hold demarcation of the suit land alongwith the land contiguously located with it bearing Khasra No.aforesaid his concerting to evince under the respective statements of the contesting parties their consensus ad idem qua the fixed points wherefrom he proceeded to hold demarcation besides of his concert not meteing success whereupon alone he held authorization to suo moto fix points from the apposite tenable revenue record also foments a conclusion from this Court of dehors the omission of the demarcating officer qua the facet aforesaid, his yet holding the apposite demarcation on his ascertaining fixed points without prior thereto his recording their respective consensus ad idem qua the fixed points wherefrom he held demarcation besides his omitting to make a concerted endeavor in regard aforesaid which concert standing thwarted alone would give succor to his holding demarcation whereas for the reasons aforesaid his not making any concert to evince the consent of the parties before endeavoring to hold demarcation renders his ascertaining fixed points wherefrom he held demarcation to be inapt rendering the consequential proceedings besides the demarcation report to stand vitiated. In sequel the demarcation report holds no probative vigor.