Himachal Pradesh High Court
Ramesh Chand @ Ramesh Kumar vs Kamla Devi & Others on 27 December, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CMPMO No. 107 of 2022
Date of Decision: December 27, 2023
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Ramesh Chand @ Ramesh Kumar ... Petitioner.
Versus
Kamla Devi & others .. Respondents.
of
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
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For the Petitioner: Mr.R.K. Sharma, Senior Advocate,
alongwith Ms.Vidushi Sharma, Mr.Arun
Kumar, Advocates.
For the Respondents: Mr.Ashwani K. Sharma, Advocate.
Vivek Singh Thakur, J.
Present petition has been preferred against order
dated 03.09.2021 passed by Civil Judge, Court No.IV, Hamirpur,
H.P., in CMA No.145 of 2021, in Civil Suit No.487 of 2017, titled
as Ramesh Chand @ Ramesh Kumar vs. Kamla Devi & others,
whereby an application preferred by the petitioner-plaintiff,
under Order 26 Rule 9 of Code of Civil Procedure (in short 'CPC')
read with Section 75 of CPC, has been dismissed on the ground
that in the application petitioner-plaintiff had virtually requested
the Court to collect the evidence and the provisions under Order
26 Rule 9 CPC cannot be used for the said purpose.
1 Whether reporters of the local papers may be allowed to see the judgment?
2. Petitioner-plaintiff has filed suit for declaration that
he is absolute owner in possession of land comprised in Khasra
No.3331/1510, 1511 and has right over the path to this land
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through the land comprised in Khasra No.1521, 1522 and 1523,
situated in Tika Up-Mahal Gaura, Rappa Bajuri, Tehsil and District
Hamirpur, H.P., and for Permanent Prohibitory Injunction against
respondents-defendants from obstructing the path in question
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and for mandatory injunction, if respondents-defendants succeed
in obstructing the said path.
3. During pendency of the suit, an application under
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Order 26 Rule 9 CPC was filed by the plaintiff for appointing Local
Commissioner with averments that despite interim stay order,
respondents-defendants had wrongly and illegally started
construction work of walls over the path over the suit land with
intention to block path leading to the house of the petitioner-
plaintiff duly shown in Site Plans Ex.PW.1/A, Ex.PW.3/A and
Ex.PW.3/B. It was further stated that when respondents-
defendants did not pay heed to the request of the petitioner-
plaintiff to obey the stay order and did not stop work, petitioner-
plaintiff had filed an application in the Police Station Hamirpur,
which was entered as G.D. No.23, dated 04.04.2021, but no
action was taken by the police except directing the petitioner-
plaintiff to approach the Civil Court for redressal of his
grievances.
4. With aforesaid facts, on 06.04.2021, application
under order 26 Rule 9 CPC was filed with prayer to appoint Local
Commissioner with direction to visit the spot and to report about
nature and extent of construction being raised by the
respondents-defendants over the suit land.
.
5. In response to the application, respondents-
defendants had contended that they had their residential house
over the suit land which was inhabited by them and land was
four walled much prior to filing of the suit and there was no
of
passage of the petitioner-plaintiff over the suit land. However,
status quo qua nature and possession passed by the Court was
maintained by them and the application was meritless.
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6. Learned counsel for the petitioner-plaintiff referring
Haryana Waqf Board vs. Shanti Sarup and others, (2008) 8 SCC
671, has submitted that in present case also parties had adjacent
lands and, therefore, appointment of Local Commissioner was
necessary for elucidating the matter in dispute. Further that
application has not been filed for collecting evidence, but for
elucidating the matter in dispute regarding which evidence has
already been placed on record as a Map issued by Municipal
Council, Report of Municipal Council and report of police, wherein
path has been shown in the Map and Municipal Council has
issued notice to the respondents-defendants not to obstruct the
path and the police has advised the petitioner-plaintiff to
approach the Civil Court and, therefore, to make the things more
clearer by explaining it through Local Commissioner, Trial Court
should have allowed the application.
7. Learned counsel for the respondents-defendants has
opposed plea of the petitioner-plaintiff on the ground that
application is not for demarcation or resolving boundary dispute,
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but is for collecting evidence with respect to nature and extent of
construction being raised by the respondents-defendants over
the suit land. Whereas, claim of the respondent-defendants is
that they have already raised construction much prior to filing of
of
the suit.
8. Learned counsel for the petitioner-plaintiff has
submitted that irrespective of prayer made in the application, the
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Court is vested with power for appointment of Local
Commissioner suo motu if it is deemed necessary that a Local
investigation is required and is proper for the purpose of
elucidating any matter in dispute and it is not necessary that
either or both parties must apply for issuance of Commission. It
has been contended that in present case also, to elucidate
matter in dispute with respect to existence of path and to verify
the fact of availability of alternative approach to the petitioner-
plaintiff, Local Commissioner should have been appointed and it
would have facilitated the Court to arrive at a right conclusion.
Further that extent of construction raised by the respondents-
defendants over the suit land is a fact required to be elucidated
by appointment of Local Commissioner.
9. Learned counsel for the petitioner-plaintiff to
substantiate claim for appointment of Local Commissioner, has
also referred judgments in Jeet Ram alias Meet Ram vs. Sita Ram
and others, Latest HLJ 2002 (HP) 1173; Moti Ram vs. Tikam Ram,
Latest HLJ 2010 (HP 711; and Jagdish Ram vs. 1.Vishwamitter,
2.Jawahar Lal, 3 Dev Mitter & others, Latest HLJ 2012 (HP) 1427.
.
10. In Haryana Waqf Board's case, there was boundary
dispute and the controversy between the parties was regarding
demarcation of land, who were having adjacent lands. In present
case, parties are having adjacent lands. Though application has
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not been filed for demarcation of the land to ascertain the
location and existence of path referred in the plaint, but the
application has been filed to report with respect to extent of
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construction being raised by the respondents-defendants in the
suit land. It was alleged that respondents-defendants were
raising construction in violation of order passed by the Court, but
respondents-defendants were claiming no fresh construction and
at one hand they were denying existence of path, on the other
hand, they were claiming that they were maintaining interim
order passed by the Court. Therefore, appointment of Local
Commissioner, as prayed, would be a valid and appropriate
exercise because though prayer in the application may not be
happily worded but report with respect to construction being
raised would have elucidated regarding existence of path. It is
true that as on date there may not be any construction being
raised by the respondents-defendants, but report with respect to
nature and extent of construction raised by respondents-
defendants would definitely help the Court to arrive at right
conclusion.
11. In Bali Ram vs. Mela Ram and another, AIR 2003 HP
87, Local Commissioner was directed to be appointed to
investigate and report about actual and factual position about
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the path, construction etc., if any, on the suit land. The prayer
made in present case though in different words but means the
same.
12. Learned counsel for the petitioner-plaintiff has
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submitted that Court has suo motu power to modify the relief
and to appoint Local Commissioner to verify the existence/non-
existence of path/alternative path available to the petitoner-
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plaintiff.
13. Keeping in view the backdrop of filing the application
and nature of the prayer made in the application, I find favour for
issuing direction to appoint Local Commissioner by exercising
such power vested in the Court.
14. In the given facts and circumstances, prayer made in
the application for appointment of Local Commissioner has not
lost its relevancy as on date and, therefore, I consider it fit to
issue direction to appoint Local Commissioner with respect to
payer made in the application with reference to elucidate the
nature and extent of construction with impact on the rival claim
of parties with respect to existence of path. Because being
adjacent land owners with claim of path on the suit land alleging
obstruction thereon by the respondents-defendants which is
denied by respondents-defendants dispute is akin to boundary
dispute. As Local Commissioner shall investigate and report
about actual and factual position about path, construction, if any,
thereon and non existence or existence of alternative path
leading to the house, if any and such exercise, by elucidating the
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factual position, shall definitely help the Court to adjudicate the
suit efficaciously and properly to substantiate justice.
Accordingly impugned order is set aside. Trial Court is directed
to pass an order for appointment of Local Commissioner, in
of
accordance with law, keeping in view the law laid down by this
Court as well as Supreme Court and considering the provisions
for conferring rt power upon the Court to appoint Local
Commissioner.
15. With aforesaid observations, petition is allowed, so
also pending application(s), if any.
(Vivek Singh Thakur),
Judge.
December 27, 2023
(Purohit)
