Sohal vs Unknown
2021 Latest Caselaw 5645 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 9th DAY OF DECEMBER, 2021

.

BEFORE

HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,

CHIEF JUSTICE

CIVIL MISC. PETITION MAIN (ORIGINAL) NO. 58 of 2020

Between:

DASS, RESIDENT OF

SH. SOHAN LAL, SON OF SH. CHEPU r VILLAGE

SOHAL, PARGNA TIUN, TEHSIL GHUMARWIN, DISTT. BILASPUR (H.P).

...PETITIONER

(BY SH. MAYANK SHARMA, ADVOCATE)

AND

1. SH. LEKH RAM SON OF SH. CHELA

REM.

2. SH. RAM LAL SON OF SH. CHELA RAM.

3. SMT. BIMLA DEVI WIFE OF SH. PREM LAL.

4. VEENA DEVI WIFE OF SH. LEKH RAM

ALL RESIDENTS OF VILLAGE SOHAL, PARGNA TIUN, TEHSIL GHUMARWIN, DISTT. BILASPUR (H.P.)

..RESPONDENTS/DEFENDANTS

5. VEENA DEVI WIFE OF SH. BAGSHI RAM.

6. AJAY KUMARI DAUGHTER OF SH.

BAGSHI RAM.

7. ASHWANI KUMAR SON OF SH. BAGSHI

.

RAM.

8. SISHU PARVEEN CHANDER SON OF SH. BAGSHI RAMA

ALL RESIDENTS OF VILLAGE SOHAL, PARGNA TIUN, TEHSIL GHUMARWIN, DISTT. BILASPUR (H.P.)

....PROFORMA RESPONDENTS/DEFENDANTS

(BY SH. MALAY r to KAUSHAL, ADVOCATE FOR R-1 TO R-4) _____________________________________________________

This case coming on for orders this day, Hon'ble

Mr. Justice Mohammad Rafiq, passed the following:

O R D E R.

This petition has been filed by plaintiff Sohan Lal

challenging order dated 18.12.2019, passed by Civil Judge,

Court No. 2, Ghumarwin, Distt. Bilaspur, H.P.

2. The said Court, by the aforesaid order, has

disposed of application under Order 26 Rule 9 of the Code of

Civil Procedure, seeking appointment of Local Commissioner

in order to elucidate truth and ascertain as to whether the

respondents have excavated weed and merged the same in

their own field comprising in Khasra No. 29/1, measuring 0.1

biswa, which is the part of the land measuring 4.6 bighas

.

comprised in Khasra No. 29, Khata/Khatauni No. 17/31 min,

situated in Village Sohal, Pargana Ajmerpur, Tehsil

Ghumarwin, District Bilaspur, H.P. The learned Trial Court has

dismissed the said application observing that Order 26 Rule 9

CPC empowers the Court to issue commission to make local

investigation, which may be required for the purpose of

elucidating any matter in dispute, though, the object of the

local investigation is not to collect evidence which can be taken

by the Court, but to obtain such evidence which form its

peculiar nature with a view to elucidate any point which is left

doubtful on the evidence produced before the Court. It was,

therefore, held that the Court cannot create evidence on behalf

of any of the parties to the suit.

3. Mr. Mayank Sharma, learned Counsel for the

petitioner, submits that the Trial Court has wrongly concluded

that the demarcation report was already on record, in fact,

Tatima was placed on record by the applicant/plaintiff which

was incorrectly taken to be the demarcation report. He further

submits that the petitioner/plaintiff had filed the application

under Order 26 Rule 9 of the Code of Civil Procedure before

the Trial Court to demarcate the suit land and to report about

the nature and extent of damage caused to the land of the

.

plaintiff as it could not be proved by leading any evidence. The

stage, at which, the application was filed, could not be termed

as belated. He further submits that the prayer of the petitioner

in the application for appointment of Local Commissioner for

the purpose of demarcation, so as to find out the extent of

encroachment, was genuine and justified, which would

facilitated the Trial Court to decide the matter effectively and

judiciously between the parties. He further argues that no

prejudice could have been caused to the respondents-

defendants in case the said application was allowed. He

further submits that the learned Trial Court was, therefore, not

justified in taking the view that appointment of the Local

Commissioner, at this stage, is tantamount to collecting the

evidence on behalf of the plaintiff.

4. Perusal of the impugned order indicates that the

plaintiff had examined three witnesses, namely Patwari,

Kanungo and the Architect in support of his case. The Spot

Tatia was prepared by the revenue authority at the instance of

the plaintiff, which was placed on record. The Trial Court on

considering the ratio of the various judgments held that there is

no straight jacket formula that in all the boundary disputes, the

Court is bound to appoint Local Commissioner and each

.

application has to be decided on its peculiar facts and

circumstances pertaining to that particular case. In the present

case, the Trial Court noted that it reveled from the perusal of

the case filed that the demarcation of the suit land stands

already conducted by the revenue authorities, which is

admitted by the plaintiff himself. Furthermore, none of the

parties had come up with the fact that the said demarcation

report was ever set aside by any revenue authority and had

not attained finality. The Trial Court was, therefore, of the

view that when the demarcation was already completed by the

revenue authority, there was no question of conducting the

fresh demarcation of the suit land. The Trial Curt had relied

upon the judgment passed by the Supreme Court in case titled

as State of H.P. versus Mangat Ram, reported in AIR 1995 SC

65, wherein it was held that once the demarcation had been

conducted, the same cannot be set aside by appointing

another Local Commissioner to demarcate the same land

again.

5. Considering the matter in totality and the reasons

recorded by the Trial Court, this Court does find any infirmity in

the findings recorded by the Trial Court. Hence, there is no

merit in the petition. Accordingly, the same is dismissed.

.

Pending application(s), if any, also stands disposed of.

( Mohammad Rafiq ) Chief Justice

December 9, 2021

(hemlata)