Sant Ram vs Kashmir Chand And Others
2023 Latest Caselaw 4948 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

FAO No. 08 of 2022.

Reserved on: 26.04.2023 Decided on:01.05.2023 _________________________________________________________________

Sant Ram ... Appellant/Defendant

Versus Kashmir Chand and others ...Respondents/Plaintiffs

Coram:

The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yess

For the appellant: Dr. Lalit K. Sharma, Advocate.

For the respondents: Mr. K.D. Sood, Senior Advocate, with Mr. Sanjeev Sood, Advocate, for

respondents No. 1 to 7.

                                       Mr. M.A. Safee,                    Advocate,          for
                                       respondent No.8.




                                       Mr. Prashant Sharma, Advocate, for





                                       respondent No.9.

Satyen Vaidya, Judge

The instant appeal has been preferred by the

appellant against judgment and decree dated 31.12.2021

passed by learned Additional District Judge, Sundernagar,

District Mandi, H.P. in Civil Appeal No. 24 of 2020, whereby

judgment and decree dated 07.12.2019 passed by learned Civil

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

Judge (Senior Division), Court No.1, Sundernagar, District

Mandi, H.P. in Civil Suit No.09/2008 has been set-aside and the

.

suit has been remanded to learned trial Court with direction to

appoint fresh Local Commissioner for the purposes of carrying

out demarcation and thereafter decide the matter in light of the

reports submitted by the Local Commissioner.

2. The parties shall be referred to by the same status as

they held before learned trial Court for the sake of convenience

and clarity. The appellant was defendant No.2 and proforma

respondents were defendants No. 1 and 3 respectively before the

trial Court. Respondents No. 1 to 7 were plaintiffs.

3. The plaintiffs had filed a suit for permanent

prohibitory and mandatory injunction in respect of the land

comprised in Khata/Khatauni No. 157/186 min, Khasra No.

274, measuring 04-15-02 bighas, situated in Muhal Khilra,

Tehsil Sundernagar, District Mandi, H.P. (for short the suit land)

and had also sought a decree of possession in alternative on the

premise that in case the defendants succeeded in encroaching

upon the suit land during the pendency of the suit, the same be

restored to the plaintiffs.

4. Undisputed facts are that the plaintiffs were owner of

land comprised in Khata/Khatauni No. 157/186 min, Khasra

.

No. 274, measuring 04-15-02 bighas. Defendant No.1 owned

land comprised in Khasra No.283, out of which she sold two

separate portions measuring 0-5-4 bighas and 0-4-1 bighas

respectively in favour of defendants No. 2 and 3. Initially,

plaintiffs had alleged encroachment over the suit land by

defendant No.3, however, during pendency of the suit, plaintiffs

got the suit land demarcated from revenue agency and thereafter

amended the plaint to plead that it was defendant No.2, who had

encroached upon the suit land to the extent of 0-3-17 bighas by

raising construction thereon. The encroached land was depicted

by Khasra No. 274/1.

5. The plaintiffs placed reliance on the report of

demarcation Ext.PW1/B. However, during the pendency of suit,

plaintiffs and defendant No.2 preferred a joint application before

the learned trial Court seeking orders for appointment of the

Local Commissioner to demarcate the land in question.

Accordingly, the Tehsildar, Sundernagar was appointed as Local

Commissioner. He submitted his report exhibited on record as

Ext.DW-3/A/B. The Local Commissioner had not found any

encroachment on the land of plaintiffs as alleged in the plaint.

.

6. Learned trial Court found the demarcation conducted

by the Local Commissioner to be in accordance with Chapter 10

of the Himachal Pradesh Land Records Manual as also the

instructions issued for guidance of the Revenue Officers by the

Financial Commissioner (Revenue) Himachal Pradesh and

affirmed the same despite objections raised on behalf of the

plaintiffs. Accordingly, the suit was dismissed.

7. In first appeal, learned lower Appellate Court has held

the report of the Local Commissioner Ext. DW-3/1/B to be in

violation of the instructions of the Financial Commissioner

(Revenue). The judgment and decree passed by learned trial

Court has thus been set-aside with direction to appoint the Local

Commissioner afresh and to decide the matter thereafter in

accordance with law.

8. Defendant No.2 has now approached this Court

against judgment and decree passed by learned lower appellate

Court on the grounds firstly that the report of the Local

Commissioner i.e. Tehsildar, Sundernagar, Ext.DW-3/1/B

could not have been set-aside as the Local Commissioner was

appointed with the consent of the plaintiffs and the plaintiffs

had also consented for recognition of permanent points affixed

.

on the spot for the purpose of demarcation and, secondly, the

report Ext.DW-3/1/B was strictly complying with the

instructions issued by the Financial Commissioner (Revenue),

Government of Himachal Pradesh for the guidance of the

revenue officers.

9. On the other hand, the plaintiffs have supported the

impugned judgment and decree and have submitted that the

report Ext.DW-3/1/B was in utter violation of the instructions

issued by the Financial Commissioner (Revenue) and was not

sustainable.

10. I have heard learned counsel for the parties and have

also gone through the records of the case carefully.

11. As a matter of fact, learned lower Appellate Court has

found that the fields required to be demarcated by the Local

Commissioner, did not fall within the triangle formed by the

affixation of permanent points and thus, the report Ext.DW-

3/1/B violated the instruction No. (I) issued by the Financial

Commissioner (Revenue), Government of Himachal Pradesh.

The instruction No. (I) issued by the Financial Commissioner

(Revenue), Govt. of Himachal Pradesh, reads as under:

.

"(I). If a boundary is in dispute, the Revenue Officer or the Field Kanungo should relay it from the Village-map

prepared at the last settlement. If there is a map which has been made on triangulation system (Musalas bandi) he should find three fixed recognizable points

on different sides of the place in dispute as near to it as he can, which are shown in the map. These points should be such as admitted by the parties that have

remained undisturbed since the last settlement."

12. It is not in dispute that the Local Commissioner has

demarcated the disputed fields on the premise that map was

prepared on triangulation system. Evidently, the Local

Commissioner has proceeded to fix three permanent

recognizable points for the purpose of verifying the dimensions

and extent of the boundaries of fields required to be demarcated.

13. It is clearly spelt out in instruction No. (I) noted above,

that three fixed recognizable points have to be on different sides

of the place in dispute and should be as near to it as can be. The

fact that one of the fixed recognized points ascertained by the

Local Commissioner was a corner of Khasra No. 274 has not

been disputed before me by the parties. Such fact is otherwise

evident from the record. The report Ext.DW-3/1/B as also the

copy of Village-map relied at the time of demarcation

.

Ext.DW-3/1/A, clearly evidences such fact. It is also not in

dispute that the permanent fixed recognizable points so

determined at the corner of Khasra No. 274 was determined by

the Local Commissioner in the first instance and on the basis of

such fixed point, other fixed points were ascertained. Khasra No.

274 was one of the fields required to be demarcated. Thus, it

could not have been measured or demarcated by considering

one of its corner as a fixed recognizable point. Such fixed

recognizable point has to be on different sides of the place in

dispute. The purpose is clear and loud that it is only with the

help of fixed recognizable points found away from the field in

dispute, the measurements and boundaries of the disputed field

can be ascertained by carrying out the process of measurement

by drawing perpendicular etc. It is not possible to demarcate

with the ascertainment of any corner of the disputed field as

fixed recognizable point. In such view of the matter, the

impugned judgment and decree passed by learned lower

Appellate Court does not warrant any interference.

14. The nature of dispute suggests that it can be

adjudicated only on the basis of demarcation carried out on spot.

.

The demarcation necessarily has to be in accordance with law.

Since the demarcation Ext.DW-3/1/B carried out by the Local

Commissioner is in violation of instruction No. (I) of the

instructions issued by the Financial Commissioner (Revenue) to

the Government of Himachal Pradesh, the same cannot be

sustained.

15. In Kamal Dev and another vs. Hans Raj, reported in

AIR 2000 (HP), 130, this Court has held that the violation of

instruction No. (I) issued by the Financial Commissioner

(Revenue) vitiates the process of demarcation and such

instruction is mandatory in nature.

16. Learned trial Court had clearly misread and

mis-appreciated the demarcation report Ext.DW-3/1/B. The

learned trial Court was not right in holding that even a corner of

disputed field could be considered as fixed recognizable point.

The instruction No.(I) issued by the Financial Commissioner

(Revenue) to the Government of Himachal Pradesh was also not

considered by learned trial Court in right perspective.

17. As regards the objection of defendant No.2 regarding

the consent given by the plaintiffs to the fixation of recognized

.

fixed point, it can be seen from the statement made by the

original plaintiff Sh. Dhani Ram before the Local Commissioner

that his consent also pertained to fixation of one of the

recognizable points which was a corner of Khasra No. 274. The

point so ascertained may have been fixed recognizable point, but

the question is whether such point could be considered for

demarcating the same field of which it was one of the corners?

As discussed above, the answer has to be in negative. That being

so, the consent of plaintiffs on an issue which was against law

will not create estoppel. Another reason for not countenancing

such a consent on behalf of the plaintiffs is that he was a layman

and would not be knowing the niceties of technical procedure of

demarcation. It was for the Local Commissioner to have carried

out the demarcation in accordance with the instructions issued

by the Financial Commissioner (Revenue) to the Government of

Himachal Pradesh. Further, the learned lower Appellate Court

has also rightly held that the consent of plaintiffs was

immaterial as he had consented for the corner of Khasra No. 18

to be the fixed recognizable point, whereas, the demarcation was

finally carried out by the Local Commissioner on the basis of

some other point as defendant No.2 had raised objection as to

.

authenticity of such point in Khasra No. 18.

18. In view of above discussion, the appeal is dismissed.

The impugned judgment and decree dated 31.12.2021 passed

by learned Additional District Judge, Sundernagar, District

Mandi, H.P. in Civil Appeal No. 24 of 2020 setting-aside

judgment and decree dated 07.12.2019 passed by learned Civil

Judge (Senior Division), Court No.1, Sundernagar, District

Mandi, H.P. in Civil Suit No.09/2008, is affirmed.

19. The appeal is disposed of in the aforesaid terms, so

also the pending miscellaneous application(s), if any.

                                             (Satyen Vaidya)
1st May, 2023                                       Judge
      (GR)