CMPMO/357/2015 on 29 December 2016

IN THE HIGH COURT OF HIMACHAL PRADESH

SHIMLA

CMPMO No.357 of 2015

Date of Decision: 29.12.2015

Kusum Lata.

…..Petitioner.

Versus Ran Singh.

….Respondent.

Coram:

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting?1

For the Petitioner: Mr. N.K. Thakur, Senior Advocate

with Mr. Surinder Saklani, Advocate.

For the Respondent: Mr. Rajinder Dogra, Advocate.

Sureshwar Thakur, J (oral)

This petition has arisen from the impugned order of 20.8.2015, passed in CMA No.79/6 of 2015 by the learned Additional District Judge, Sirmaur District at Nahan, H.P., whereby it affirmed the decision recorded by the learned Civil Judge (Jr. Division), Nahan, District Sirmaur, H.P. in Civil Misc. Appl. No.79/6 of 2015 in Civil Suit No.39/1 of 2015, whereby the latter Court had declined the relief 1 Whether reporters of the local papers may be allowed to see the judgment?

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to the plaintiff/petitioner herein of the respondent herein being restrained from carrying out construction over the suit property more especially upon Khasra No.1676. A perusal of the jamabandi qua Khasra No.1676 manifests the fact of it standing recorded therein as gair-mumkin-rasta. Both the Courts below untenably repelled its legal efficacy on the score of a report of the Kanoongo of the Halqua concerned on holding a demarcation of the suit property unfolding therein the factum of the defendant/respondent herein raising construction in commensuration to his share in the undivided holding. In sequel, it was concluded of no construction at the instance of the defendant/respondent herein standing raised or carried out upon Khasra No.1676, recorded as gair-mumkin-rasta in the apposite jamabandi. Any reliance upon the report of the local Kanoongo by either of the Courts below was misplaced, as prima-facie Annexure P-13 omits to bespeak the prime factum of the local Kanoongo holding a demarcation of the entire undivided Khata wherein both the parties therein co-owners or co-sharers, whereas only in sequel thereto truth would stand foisted to the factum recorded therein of the defendant/respondent herein not raising construction in the undivided Khata beyond his recorded share therein rather in

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commensuration to his share therein. The absence of any unfoldments in Annexure P-13 of the local Kanoongo holding a demarcation of the entire Khata for facilitating a firm determination of the defendant/respondent herein constructing within or in excess of his share in the undivided Khata, does not give any leverage to any depiction in Annexure P-13 of the defendant/respondent constructing within or beyond his share in the undivided holdings or whether in his raising any construction upon the undivided Khata he has raised it upon any portion of the gair-mumkin-rasta, comprised in Khasra No.1676. The aforesaid infirmity gripping Annexure P-13, renders reliance, if any, imputed to it being wholly unfounded. Consequently, the findings recorded by the learned Appellate Court cannot stand fastened with any solemnity. The impugned order is set aside and the matter is remanded to the learned Additional District Judge, Sirmaur District at Nahan, H.P. for recording findings afresh qua the factum of whether the defendant/respondent herein has raised any construction upon gair-mumkin-rasta comprised in Khasra No.1676, whereupon the parties at lis are litigating after eliciting a fresh demarcation report from the Revenue Officer concerned. The learned Additional District Judge, Sirmaur District at Nahan, H.P.

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shall render a decision afresh within one month thereafter. The parties are directed to appear before the learned Additional District Judge aforesaid on 1.3.2016.

2. Accordingly, the present petition, as also the pending application(s), if any, stand disposed of.

December 29, 2015.

( Sureshwar Thakur ), (rkv)

Judge.