Shiv Ram & Ors vs Karam Chand & Ors
2023 Latest Caselaw 11324 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CMPMO No. 230 of 2020.

Decided on : 9th August, 2023.

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    Shiv Ram & Ors.                                                         ...Petitioners.

                                         Versus





    Karam Chand & Ors.                                                      ....Respondents.
    Coram:

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1

For the Petitioners: Mr. K.R. Thakur, Advocate.

For the Respondents:

r Mr. J.L. Bhardwaj, Senior Advocate

with Mr. Sanjay Bhardwaj, Advocate.

Satyen Vaidya, Judge (Oral).

By way of instant petition, challenge has been

made to order dated 28.12.2019 passed by learned Civil

Judge (Junior Division) Anni, District Kullu, H.P. In Case No.

0100064 of 2013, whereby the application of the petitioners

under Order 26, Rule 9 of the Code of Civil Procedure for

appointment of Local Commissioner has been rejected.

2. The facts necessary for adjudication of the petition

are that the petitioners as plaintiffs have filed a suit for

Whether reporters of the local papers may be allowed to see the judgment?

...2...

permanent and mandatory injunction against the

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respondents/defendants with a prayer in following terms:-

"Suit for permanent prohibitory injunction

restraining the defendant from constructing,

encroaching and changing the nature of land, or

raising any kind of construction upon the suit

land in any way comprised in Khewat No.

1069/1020, Khatoni No.1260/1212, Khasra No.

6098 measuring 00-11-00 Biswas situated in

Muhal Manjha Desh, Tehsil Anni, District Kullu,

H.P. and mandatory injunction to restore the

land in its original position and had over the

possession of the suit land to the plaintiffs."

3. The relief as claimed in the suit is only with respect

to Khasra No. 6098, which the plaintiffs claim to be owned by

them. Before filing the suit, the plaintiffs got the demarcation

to ascertain the boundary of Khasra No. 6098 by making an

application to the revenue authorities. The demarcation

report as Annexure P-2 has been placed on record. It is

revealed from such report that out of Khasra No. 6098,

measuring 11 biswas, about two biswas was in possession of

...3...

respondent/defendant Karam Chand, where he had raised

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construction and about one biswa of land was in possession of

respondent/defendant Govind Ram and remaining 8 biswas of

khasra No. 6098 was vacant. By placing reliance on such

demarcation report, plaintiffs filed the suit.

4. According to plaintiffs, during the pendency of the

suit the defendants applied for demarcation of the same land

at their back and the revenue officer allegedly demarcated

land. The report, Annexure P-3, prepared in pursuance to

such demarcation has also been placed on record. As per this

report, out of 11 biswas of land comprised in Khasra No. 6098

a house belonging to one Madan Lal was found on 10 biswas

and on one biswa of land house of Govind Ram was found.

5. The contention of learned counsel for the

petitioners/plaintiffs is that in view of the contradictory

demarcation reports, plaintiffs had applied for fresh

demarcation which was justified in the facts of the case,

however, the learned trial Court has rejected such prayer by

passing the impugned order in an illegal and perverse

manner.

...4...

6. The discrepancy pointed out by the learned

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counsel for the petitioners/plaintiffs in two demarcation

reports is with respect to the possession of defendant Karam

Chand as suggested in the first report Annexure P-2 and that

of Shri Madan Lal s/o Sangat Ram as mentioned in second

report Annexure P-3.

7. I have given my thoughtful consideration to the

contention raised by learned counsel for the

petitioners/plaintiffs and have also gone through the

documents placed on record.

8. The fundamental principle for appointment of Local

Commissioner is to ascertain any fact which according to

Court may be necessary for elucidation of matter in issue. The

ownership of plaintiffs over khasra No. 6098 is not in dispute.

The case of the plaintiffs is that the defendants have made

encroachment on khasra No. 6098 and are further trying to

interfere therein. The issue, thus, primarily is with

respect to the encroachment made on khasra No. 6098.

This issue can be decided on the basis of evidence to

be led by the respective parties independently. The

...5...

demarcation as envisaged under Section 107 of the Land

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Revenue Act is for the purpose of identification of the

boundaries of land and is not available for creation of any

evidence with respect to possession on any portion of land.

In this view of the matter, the demarcation, in my considered

view, will not be sole criteria for adjudging the issue involved

in the suit. The plaintiffs already have got a demarcation

report in their favour vide Annexure P-2. No new dispute with

respect to the identity of boundaries of suit land has emerged

even after the coming into being of demarcation report

Annexure P-3. Hence, it was not incumbent upon learned trial

Court to have allowed the prayer for the appointment of Local

Commissioner. The validity and legality of both the

demarcation reports Annexure P-2 and P-3 are yet to be

adjudged upon by learned trial Court.

9. I have gone through the impugned order and have

not found any illegality much less perversity in the same. The

discretion, vested in the learned Trial Court, has been

exercised judiciously. No error of jurisdiction has been

pointed out or found in the impugned order.

...6...

10. Learned counsel for the petitioners/plaintiffs has

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placed reliance on a judgment passed by this Court in Bali

Ram vs. Mela Ram, 2002 (3) Shimla Law Cases, 131. The

reliance so placed on the judgment will not serve the cause of

the petitioners in the instant case as the said judgment was

passed in its peculiar facts where the dispute, as to the

boundary, was the prime issue involved in the matter.

11. In result, there is no merit in the instant petition

and the same is dismissed accordingly. Pending applications,

if any, also stand disposed of.

(Satyen Vaidya)

Judge 9th August, 2023.

(jai)