Gulzari Lal vs Chetu and Others

Deepak Gupta, J.—The short question in this appeal is whether the Defendant has encroached upon the land of the Plaintiff while constructing his house.

The Plaintiff filed a suit alleging that he was owner of khasra No. 623 measuring 7-18 bighas and out of this land the Defendant had encroached upon an area of 10 biswansis reflected as khasra No. 623/1. The learned trial Court came to the conclusion that the demarcation report proved by PW-3 could not be relied upon since it was not a demarcation report, but only a tatima and the Patwari PW-3 had stated that no proper tatima can be made without proper demarcation being carried out. The learned trial Court framed an additional issue and on the basis of the evidence came to the conclusion that the Defendant had in fact encroached upon this land and had constructed a house thereupon. The land in question is only 10 biswansi which works out to approximately 22 1/2 square yards. The land in question is stated to be in an agricultural area where even a slight difference in the musabi or map can bring out a change of about 10 biswansi in the total area of 7 bighas 18 biswas. However, I do not intend to disturb the findings given by the learned lower Appellate Court that the Defendant had encroached upon the land of the Plaintiff.

Be that as it may, should the Defendant be deprived of his home and should the Plaintiff be granted a decree for possession of the suit land after demolishing the house of the Defendant only on the ground that there is encroachment of about 22 square yards. The value of the house which even according to the Plaintiff was constructed about 15 years prior to his making a statement in court would be much more than the value of the land. I am informed by the learned Counsel that efforts were made to reconcile the matter, but for some reasons no amicable settlement could be arrived at.

While granting relief, the Court must act in a just fashion. Assuming for the sake of argument that the tatima prepared by the Patwari is correct and there is encroachment of 22 yards, why cannot the Plaintiff be compensated by giving him the cost of the land instead of demolishing the construction especially when the Plaintiff will still be left with 7 bighas, 7 biswas and 10 biswansis out of his total land.

I find that the parties are poor. The value of the land is low. The area in question is a rural area. Assuming that the cost of land is about Rs. 2 lacs per bigha, it would work out to Rs. 10,000/- per biswa or Rs. 5,000/- for 10 biswansis. Even if some penalty is imposed upon the Defendant for having encroached upon the land, at best the total value can be assessed at Rs. 10,000/- and I am assessing the value as on date and not taking the value of the land when the same was actually encroached upon.

In view of the aforesaid discussion, it will be in the interest of justice in case the decree of the lower Appellate Court is modified to the limited extent that instead of passing a decree for possession after demolition of the structure raised by the Defendant, it is directed that the Appellant shall compensate the Defendant by payment of Rs. 10,000/- towards the value of the land. The Defendant-Appellant is directed to deposit this amount in the trial Court on or before 31.5.2011, failing which the present appeal shall be deemed to have been dismissed and the Respondent shall be entitled to execute the decree passed by the learned lower Appellate Court.

The appeal is disposed of in the aforesaid terms. No order as to costs.