Bawa Alias Bishan Dass vs (C) Kanta Devi Wd/
2022 Latest Caselaw 3601 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                ON THE 20th DAY OF MAY 2022




                                                        .
                         BEFORE





          HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
     CIVIL MISC. PETITION MAIN (ORIGINAL) No. 829 OF 2019





          Between:-

    1.     BAWA ALIAS BISHAN DASS





           S/O SH. RIKHI RAM, S/O SH. GOKAL.

    2.     LACHMAN S/O SH. RIKHI RAM, S/O SH. GOKAL
           DECEASED THROUGH HIS LR'S NAMELY;

    2A.    BHAGWATI DEVI WD/O LACHMAN;

    2B.    VIVEK PATIAL S/O SH. MALAK RAJ;

    2C.    MANI PATIAL S/O SH. RAMESH CHAND;



    3.     RAJ KUMAR S/O CHUHRA ALIAS CHUHRU RAM
           S/O SH RIKHI RAM S/O SH. GOKAL;




    4.     RAKESH KUMAR S/O CHUHRA ALIAS CHUHRU
           RAM S/O SHRI RIKHI RAM S/O SH. GOKAL;





    5.     SUDESH KUMARI S/O CHUHRA ALIAS CHUHRU
           RAM S/O SH RIKHI RAM S/O SH. GOKAL;





    6.     ANITA DEVI D/O SH CHUHRA ALIAS CHUHRU
           RAM S/O SHRI RIKHI RAM S/O SH GOKAL;

           (PLAINTIFF NO. 3 TO 6 THROUGH THEIR SPA
           PLAINTIFF NO.1 NAMELY BAWA ALIAS BISHAN
           DASS).

           ALL RESIDENT OF VILLAGE AND PO JHALLAN
           MOUZA TEHSIL NADAUN, DISTT. HAMIRPUR H.P.

                                             .....PETITIONER
          (BY SH. BHUVNESH SHARMA, ADVOCATE)




                                       ::: Downloaded on - 20/05/2022 20:07:36 :::CIS
                               2




          AND

    1.     BHAG SINGH ALIAS BHAGIRATH (DECEASED)




                                                          .
           THROUGH LRS.





    1. (A) BISHMAR DASS S/O SH BHAG SINGH ALIAS
           BHAGIRATH.





    1. (B) SUMNA DEVI D/O SH. BHAG SINGH ALIAS
           BHAGIRATH.

    1.(C) KANTA DEVI WD/W/O SH. BHAG SINGH ALIAS
          BHAGIRATH.





    2.     BANSHI LAL S/O SHRI PANJU S/O SH. CHETU;

    3.     PURSHOTAM S/O SHRI BALANDU S/O SHRI NAGINA
           S/O

           SHRI LABHA;

    4A.    TILAK RAJ, S/O RULIA S/O SHRI NAGINA, S/O SH
           LABHA:

    4B.    RAMESH CHAND, S/O SHRI RULIA S/O NAGINA S/O


           LABHA;

    4C.    ASHOK KUMAR, S/O SH RULIA S/O NAGINA, S/O SH.
           LABHA;




    5.     PARKASH CHAND S/O SHRI MODHO RAM.





    6.     SATISH KUMAR S/O SHRI RATTAN S/O SHRI BLANDA
           S/O SHRI NAGINA S/O LABHA;





    7.     RAVI KUMAR S/O SHRI RATTAN S/O SH BLANDA S/O
           SHRI NAGINA S/O SH LABHA;

    8.     SANJEEV KUMAR S/O SH RATTAN S/O SH BLANDA
           S/O SH. NAGINA S/O LABHA;

    9.     PAWAN DEVI D/O SH RATTAN S/O SH BLANDA S/O
           SHRI NAGINA S/O LABHA;

    10.    SUMMAN DEVI WD/O SHRI RATTAN S/O SH BLANDA
           S/O SHRI NAGINA S/O LABHA;

                                             .....RESPONDENT




                                         ::: Downloaded on - 20/05/2022 20:07:36 :::CIS
                                    3




         (BY SH. SUNEET GOEL, ADVOCATE)

         WEATHER APPROVED FOR REPORTING?




                                                                .
     __________________________________________________





                  This petition coming on for hearing this day, the





     Court passed the following:

                               ORDER

Application under Order 26 Rule 9 CPC moved by the

petitioner for appointment of local commissioner has been turned down

by the learned trial Court vide order dated 06.11.2019. The petitioner

has come up in the instant petition against this order.

2. I have heard submissions advanced at bar by learned

counsel for the parties and considered the relevant record.

3. Civil suit was instituted by the petitioners seeking declaration

that they are owners in possession of land measuring 0-30-30 hectares

i.e. 7 kanals 18 marlas bearing Khata No.114/94, Khatauni No.126/105,

Khasra No.1520 instead of 0-22-16 hectares i.e. 5 Kanals- 17 Marlas,

as per jamabandi for the year 2006-07 situated in village Jhallan Mouza

Hathol Tehsil Nadaun District Hamirpur H.P. Consequential relief of

permanent prohibitory injunction was also prayed for.

In their written statement, the respondents/defendants

contested the suit. Following was one of the issues framed on

14.03.2014.

"1. Whether the plaintiffs are owner in possession of the suit land as alleged? OPP."

The parties led their evidence. The evidence in the case was

.

concluded on 28.05.2019. It was thereafter that the application under

Order 26 Rule 9 CPC was moved by the petitioners seeking

appointment of the local commissioner for measuring and calculating

the total area of the suit land existing on the spot as per old and latest

revenue record.

4. The averred ground for moving the application under Order

26 Rule 9 CPC was that the controversy in the suit was regarding

wrong measurement and calculation of total area of the suit land as

against the position existing on the spot. That controversy in the suit

was also regarding preparing of previous as well as present revenue

record on the basis of wrong measurement and calculation, which had

resulted in illegal and wrongful decrease and increase in the shares of

the parties over the suit land. It was pleaded that the plaintiffs had also

led documentary as well as oral evidence to prove their case, but, in

order to appreciate their evidence and to ascertain the exact position on

the spot, appointment of revenue expert as a Local Commissioner was

required for verification of facts and clarification of points. The

measurement of the suit land as per revenue record and position

existing on the spot to be given by the local commissioner in his report

would facilitate the adjudication process and would impart substantial

justice.

.

5. Learned trial Court, as noticed above, has dismissed the

application on 06.11.2019. This order cannot said to be suffering from

any infirmity. The suit was filed by the petitioners seeking declaration to

the effect that they are owners in possession of the land measuring 7

kanals & 18 marlas instead of the land which was recorded in their

possession in the revenue record. Paragraph-9 of the plaint mentions

that the cause of action had arisen to the plaintiffs in the year 1965-66

when consolidation process took place over the land in question and

thereafter in the year 1994-95, when the settlement process took place.

Para-9 reads as under:-

"9. That the cause of action firstly arose to the plaintiffs in the year of 1965-66 when consolidation process took place over the

land in subject matter thereafter in the year of 1994-95 when the settlement process took place over the same land and finally in

the year 2008 onwards when the consolidation authorities return the appeal of appellants while taking plea of "Denotification" of completion of whole consolidation process in respect of the

concern village and also the defendants threatened the plaintiffs to take possession over the suit land forcibly."

It is the pleaded case of the petitioners/plaintiffs that

they moved to the Settlement Authority for rectification of the errors

in the revenue record in the year 2001. That the Settlement

Authority vide order dated 08.01.2004 disposed of petitioners'

application by directing them to approach the concerned

Consolidation Authority. The Consolidation Authority on 08.09.2008

declined to entertain the plaintiffs' application. The plaint reflects

.

that all these facts were in the knowledge of the plaintiffs. The civil

suit was instituted on 07.01.2012. Issues were framed. It was for

the petitioners to prove Issue No.1 as to whether they were owners

in possession of the suit land. Evidence was led by the parties,

which was concluded on 28.05.2019. No steps were taken by the

plaintiffs at the appropriate time, seeking appointment of the local

commissioner. The petitioners are seeking declaration that they are

owners in possession over specific measurements of the suit land

in question. It was for them to prove their case in accordance with

law. The orders had already been passed by the concerned

authorities and these orders were in the knowledge of the

petitioners at the time of filing of the plaint. In the circumstances,

even it cannot be said that some subsequent development

necessitated & compelled the petitioners to seek appointment of

the local commissioner at the stage of argument. In the facts of the

case, the petitioners cannot be permitted to plug the lacuna, if any,

existing in their case at this stage.

For the foregoing reasons, I find no merit in the instant

petition and the same is dismissed. Parties through their learned

counsel are directed to appear before the learned trial Court on

06.06.2022. Registry is directed to return the record of the case to

the learned trial Court forthwith. Pending miscellaneous

applications, if any, shall also stand disposed of.

.

It is clarified that observations made in this judgment

shall remain confined only to the adjudication of this petition.

Learned trial Court shall decide the civil suit on merit without being

influenced by the observations made in this judgment.

Jyotsna Rewal Dua Judge 20th May, 2022 (rohit)