Shri Bansi Lal & Others vs Satish Kumar & Another
2023 Latest Caselaw 18136 HP

                                                                           .

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                             CMPMO No.29 of 2021





                                             Decided on: 20.11.2023



    Shri Bansi Lal & others                                              ...Petitioners.
                      Versus





    Satish Kumar & another                                              ... Respondents.

    Coram
    Hon'ble Mr. Justice Ajay Mohan Goel, Judge.

    Whether approved for reporting? Yes

    _____________________________________________________
    For the petitioners:    Mr. Ashwani K. Sharma, Advocate.
    For the respondents:             Mr.   Vivek    Thakur,    Advocate,                       vice
                                     Mr. Sanjeev Sood, Advocate.



    Ajay Mohan Goel, Judge (Oral)

By way of this petition, filed under Article 227 of the

Constitution of India, the petitioner has challenged order dated

27.11.2020, in terms whereof, learned Trial Court has been pleased

to set aside the report of the Local Commissioner, inter alia, by

holding that the Local Commissioner is not to give any finding with

respect to correctness of the revenue record while carrying out

demarcation under the order of the Court.

2. Having heard learned counsel for the petitioners as well

as learned counsel for the respondents and after carefully going

through the order passed by the learned Court below, this Court

does not finds any infirmity therein.

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

.

3. In terms of the provisions of Order 26, Rule 9 of the Civil

Procedure Code, a Local Commissioner is appointed, inter alia,

where a Court deems a local investigation to be requisite or proper

for the purpose of elucidating any matter in dispute. Herein, on an

application filed by the plaintiffs for demarcation of the land in

issue, learned Trial Court appointed a Local Commissioner, who

submitted a reports dated 21.01.2020 and 20.02.2020, Relevant

portion of report dated 20.02.2020 reads as under:­

"I have also perused the Aks musabi of both the Mohals and compared the shape at adjoining boundary of both

Mohals and found that there is a bend on the corner at point K (17 Karam+73 Karams) on the boundary of

Mohal­Batruda Patiala, but there is no sharp bend in the aks musabi of Mohal Nahalwin at same point K (17

Karam+72 Karam) as shown on map of Batruda Patialan"

4. Objections were filed against the reports by the

respondents herein, inter alia, on the ground that the Local

Commissioner had no business to comment on the record of rights

prepared by the Competent Authority, which stood finalised, as was

done by the Local Commissioner and as the Local Commissioner was

directed to demarcate the suit land as per the Musabi and by

following the instructions of the Financial Commissioner, the

.

unnecessary comments made qua the revenue record and the

findings returned qua encroachment of 6 Karmas of land were self­

contradictory.

5. By way of the impugned order, learned Trial Court set

aside the demarcation reports, i.e. Ext.LC.3/A and Ext.LC.3/B by

returning the following observations:­

"13 I have gone through report Ext. LC.3/C wherein the

Local Commissioner has opined; for necessary correction

on the map with respect to Karukans. He also opined that Aks Musabi of both the Mohals and compared the shape at adjoining boundary of both Mohals and found

that there is a bend on the corner at point K (17 Karam +73 Karams) on the boundary of Mohal­Batruda Patiala,

but there is no sharp bend in the aks musabi of Mohal Nahalwin at sarne point K (17Karam + 72 Karam) as

shown on map of Batruda Patialan"

14. In the cross­examination by Ld. Counsel for plaintiff

LC.3 admitted that demarcation is carried out as per Aks Musabi and Karukans mentioned therein. He also admitted that in case the Karukans as per Aks Muşabi taken then there is encroachment of defendant, but there is tatima to that effect. The Local Commissioner has to act as per the document and not to give any finding with respect to correction of revenue record. In case the revenue record is liable to be corrected, then both the

.

parties are within their right resort before the authorities for the necessary correction.

15. In view of details discussion made herein above in

the light of judicial pronouncement cited above, the report Ext. LC.3/A and Ext. LC.3/D cannot be relied upon. The same are set­aside."

6.

This Court concurs with the findings returned by the

learned Trial Court that the Local Commissioner was not having any

authority or jurisdiction to either make any comment or return any

finding with respect to correctness of the revenue record. When the

Local Commissioner was appointed by the Court on an application

filed by one of the parties and the order was clear and specific, as to

what all the Local Commissioner was to do in compliance to the

order of appointment of Local Commissioner, the observations made

by the Local Commissioner with regard to correctness of the revenue

record were both uncalled for and amounted to exceeding his brief

as the Local Commissioner was bound to have had restricted himself

to compliance of the order passed by the Court on the basis of the

revenue record available, of course by following the instructions

issued by the Financial Commissioner.

7. Further, in terms of the impugned order, learned Trial

Court has appointed another Local Commissioner, who has been

directed to carry out fresh demarcation in terms of the directions

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contained in this order and the same in the considered view of this

Court safeguards the interest of both the parties before this Court,

i.e. the petitioners and the respondents and in fact in this backdrop

also, it cannot be said that the impugned order passed by the

learned Court below suffers from any infirmity.

8.

Accordingly, as this Court does not finds any illegality in

the order impugned, this petition is dismissed, so also the pending

miscellaneous applications, if any. Interim order, if any, stands

vacated.

(Ajay Mohan Goel) Judge November 20, 2023

(Rishi)