PREM CHAND Vs. OMA CHAND AND OTHERS

JUDGEMENT

(1.) By way of instant Regular Second Appeal, appellant has laid challenge to the judgment and decree dated 1.8.2009 passed by the learned District Judge, Hamirpur, (H.P.) in Civil Appeal No. 126/2008, affirming judgment and decree dated 28.6.2008 passed by the learned Civil Judge (Junior Division), Nadaun, District Hamirpur, (H.P.) in Civil Suit No. 324/2001, RBT No. 622/2003, titled Prem Chand versus Oma Chand and others, whereby suit filed by the appellant-plaintiff (hereinafter, 'plaintiff') for fixation of boundary by way of demarcation, came to be dismissed.

(2.) Necessary facts, which may be relevant for the proper adjudication of the instant appeal, are that the plaintiff filed a suit in the court of learned Civil Judge (Junior Division), Nadaun, District Hamirpur, Himachal Pradesh, for fixation of boundary by way of demarcation, with consequential relief of permanent prohibitory injunction qua the land denoted by Khata No. 5 min. Khatauni No. 15, Khasra No. 564 measuring 0-02-65 Hectares and Khatauni No. 19 min., Khasra Nos. 5, 7, 90 and 563, measuring 0-14-38 Hectares, situated in Tika Bhyal, Tappa Balduhak, Tehsil Nadaun, District Hamirpur, Himachal Pradesh (hereinafter, 'suit land'), against the respondents-defendants (hereinafter, 'defendants') and also for possession of the suit land by way of demolition, in case same is found in possession of the defendants. Plaintiff averred in the plaint that as per Missal Hakiyat for the years 1992-93, suit land is recorded in the ownership of Tika Maheshwar Chand, and he (plaintiff) subsequently vide sale deed No. 741, dated 18.9.1998 purchased the same from him and thus became owner of the suit land. Plaintiff further averred that though mutation on the basis of aforesaid sale deed was entered in his name but same has been rejected wrongly and illegally. Plaintiff further averred that the defendants, are disputing the boundary of the suit land and they have uprooted the same in the third week of October, 2001. Plaintiff further claimed before the court below that the defendants are threatening to raise further construction over the suit land and controversy inter se parties can not be resolved unless and until demarcation is carried out and boundary is fixed by the competent authority. Plaintiff further averred in the plaint that if defendants are found in possession over any part of suit land during demarcation, he may also be held entitled for possession by way of demolition. While setting up a case that the defendants forcibly and unauthorizedly raised construction over some portion of the suit land, plaintiff also alleged that the defendants got mutation of sale rejected in connivance with the revenue officials. Plaintiff also averred that since he has not claimed any relief against the Public Works Department as well as other estate right holders at this stage, as such they are not necessary and proper parties to the suit.

(3.) Defendants, by way of written statement, refuted the aforesaid claim put forth by the plaintiff taking preliminary objections qua maintainability, non-joinder of necessary parties, limitation, valuation, estoppel etc. On merits, defendants claimed that the land comprising of Khasra No. 564 is a Gair Mumkin Abadi of defendants by way of construction of cattle shed, Khurli, septic tank and courtyard, which is being used for tethering the cattle. Defendants claimed that they are in possession over the suit land since the times of their ancestors and so far remaining suit land is concerned, defendants claimed that the same is recorded as Sarak, which is existing since the years 1953-54. Defendants claimed that the road existing over the remaining portion of the suit land leads to Rangas and Jihan. Aforesaid road is metalled one and is being used by the public at large and the same has been constructed by the Public Works Department. Defendants further claimed that the Raja of Nadaun, Tika Maheshwar Chand was not the resident of the area and he was simply owner. All the rights over the land in question are with the Tikadarans or inhabitants of the area and now the plaintiff can not claim any right, title or interest in the suit land. Defendants further claimed that the sale deed was got effected by the plaintiff just to drag the defendants and other Tikadarans into unnecessary litigation, because, Raja of Nadaun was never in possession of the suit land. Defendants, while claiming that they have become owners of the suit land by way of adverse possession, set up a case that their possession over Khasra No. 564 is for the last 100 years and their possession over the same is continuous, hostile and to the knowledge of the plaintiff. Defendants also averred in the written statement that the previous owner was not having any title over the suit land, and as such, sale deed, if any, made in favour of the plaintiff is void ab initio, because the same was never accompanied by delivery of possession. Defendants claimed that they never disputed the boundary of the suit land, rather, possession and boundaries are quite clear on the spot. Defendants claimed that the construction of cattle shed, Khurli, septic tank and courtyard for tethering of cattle was raised long back and at no point of time, they were objected either by the previous owner or the plaintiff, as such, plaintiff has no right to raise any objection at this stage. With the aforesaid pleadings, defendants prayed for dismissal of the suit. In the replication, plaintiff, while controverting the contentions of the defendants made in the written statement, reiterated the stand taken in the plaint.