Himachal Pradesh High Court

Om Parkash vs Jarnail Singh @ Ricky And Ors on 2 May, 2024

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Civil Revision No: 99 of 2023

                                        Reserved on :                 24.04.2024





                                        Decided on :                  02.05.2024





     Om Parkash.                                                ....Petitioner.

                                        Versus

     Jarnail Singh @ Ricky and Ors.                             ...Respondents.

     Coram

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

Whether approved for reporting?1 Yes

For the petitioner : Mr. Ajay Sharma, Sr. Advocate with Mr. Atharv Sharma,

Advocate.

For the respondents : Mr. Mukul Sood, Advocate.

Satyen Vaidya, Judge

Petitioner has assailed order dated

01.04.2023, passed by learned Senior Civil Judge,

Court No. 1, Amb, District Una, H.P. in CMA No.

81-VI-2023 tagged with Civil Suit No. 209/1 of

2012, by way of instant petition.

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

2. Petitioner herein is the original plaintiff

in Civil Suit No. 209/1 of 2012 before learned Trial

Court. Respondents herein are the defendants.

Respondents No. 1 and 2 herein are the only

contesting defendants before learned Trial Court.

The parties hereafter shall be referred to by the

same status as they hold before the learned Trial

Court.

3. Plaintiff r to filed a suit for permanent

prohibitory injunction against defendants in

respect of land comprised in Khewat No. 68 min.,

Khatoni No. 209, Khasra No. 2372 measuring

0-01-58 Hectares, situated in village Amlehar

Tehsil, Amb, District Una, H.P. (for short "the suit

land") by claiming himself to be a co-owner in

possession thereof. Defendants were initially alleged

to be interfering in the rights of plaintiff qua suit

land and on that basis decree of permanent

prohibitory injunction was sought.

4. During the pendency of the suit, plaintiff

amended the plaint by alleging that after filing of

the suit and despite the passing of interim

injunction order by the Court, defendants had

made encroachment upon suit land and therefore,

a decree for possession by way of mandatory

injunction by demolition and removal of the super

structure/construction raised by defendants and

by restoring the suit land to its original possession

has been sought.

r to Post amendment in the plaint, plaintiff

filed an application under Order 26 Rule 9 of the

Code of Civil Procedure, for appointment of Local

Commissioner to demarcate the land in order to

ascertain the extent of encroachment on the suit

land. Defendants contested the prayer for

appointment of Local Commissioner.

6. Learned Trial Court has dismissed the

application under Order 26 Rule 9 of the CPC, of

the plaintiff, on the grounds firstly, that the plaintiff

had the available remedy to get the demarcation

from Revenue Officer by invoking the provisions of

Section 107 of H.P. Land Revenue Act and

secondly, that the Court was not to be used as an

agency for collection of evidence.

7. I have heard learned counsel for the

parties and have also gone through the record of

the case carefully.

8. Order 26 Rule 9 of the Code, vests the

Court with jurisdiction to issue a commission for

making a local investigation in case the Court

deems such investigation to be requisite or proper

for the purpose of elucidating any matter in

dispute, or to ascertain the market value of any

building, or the amount of any mesne profits or

damages or annual net profits. In the case in

hand, learned Trial Court was called upon to

exercise jurisdiction by ordering local investigation

by appointing a Revenue Officer to demarcate the

suit land. The plaintiff has alleged the

encroachment on the suit land and the defendants

have denied such allegation.

9. In order to prove the allegation of

encroachment, evidence in the shape of

ascertainment of boundaries of suit land and the

extent of encroachment, if any, made thereon is

required. Such evidence can be in the form of

demarcation report prepared by the Revenue

Officer in exercise of powers under H.P. Land

Revenue Act.

10. The impugned order reveals that even

learned Trial Court

to has not held

demarcation was not necessary in the given facts r that the

of the case. What has been held is that the plaintiff

can avail of remedy under Section 107 of H.P. Land

Revenue Act, by getting the suit land demarcated

from the Revenue Officer and since plaintiff has

failed to do so, the Court was not to fill-up the

lacunae by appointing Local Commissioner.

11. H.P. High Court Rules and Orders, Vol.

(I), contains a provision in respect of cases where

boundary dispute is involved as under:-

"1.In "Hadd-Shikni" suits and other suits of boundary disputes of land failing within the jurisdiction of a Civil Court it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways:-

(a) by suggesting that one party or the other should apply to the Revenue Officer to fix the limits under Section 101

.

(1) of the Punjab Land Revenue Act.

Time for such purpose should be granted under Order XVII, Rule 3, of the Code of Civil Procedure,

(b) by appointing a local commissioner, and

12.

Thus, one of the ways prescribed

settlement of boundary dispute is by appointing r for

Local Commission. It, however, does not mean

that the Court is bound to issue commission in

every case of boundary dispute, merely, on the

asking of a party. In exercise of jurisdiction under

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

Court has to see the bonafides of the party

asking for appointment of commission. In assessing

the bonafides one of the parameters can be to see

whether the party applying for appointment of

commission to demarcate the land had sufficient

opportunity to avail the remedy under Section 107

of the H.P. Land Revenue Act. It will be relevant for

the reason that the procedure prescribed under

H.P. Land Revenue Act, for demarcation requires

considerable time. The order passed by the

Revenue Officer on completion of demarcation

proceeding is amenable to appeal and further

revision under H.P. Land Revenue Act. In case

when the alleged encroachment on one's land

precedes the filing

of the suit, plaintiff may not

have reason to file the suit r without firstly

ascertaining the nature and extent of

encroachment, if any, by resorting to the remedy

available under Section 107 of the H.P. Land

Revenue Act. However, if the encroachment is

alleged to have taken place after filing of the suit,

as in the case in hand, different parameters will

apply. In such a situation, in case the party is to

get demarcation under Section 107 of H.P. Land

Revenue Act, the probable time likely to be taken

in such proceedings, may defeat the purpose of

filing civil suit as the proceedings in civil suit shall

come to a stand still to accommodate plaintiff or

for that matter a party seeking demarcation to

avail remedy under aforesaid provisions of H.P.

Land Revenue Act.

13. Thus, in my considered view, while

passing the impugned order, learned Trial Court

has erred in not properly exercising the

jurisdiction vested in it. The refusal of the prayer

the legal vested r to of the plaintiff may have serious consequence on

rights of the parties. The prime

duty of the Court is to arrive at the truth of the

matter and to adjudicate upon the issues brought

before it in light of such truth.

14. As regards, the ground of rejection that

the Court is not to collect evidence, the same

again cannot be applied as a general rule. By

appointing a commission to demarcate the land,

will not amount to collection of evidence in favour of

one party for the reason that the result remains

contingent and may favour either or none of the

parties.

15. In Prithi Singh Vs. Bakshi Ram and

another, Latest HLJ 2006 (H.P) 2006 5, a

Co-ordinate Bench of this Court has already held

as under:-

"7. As referred to above, the dispute between the parties was in fact a boundary dispute. It could be solved only by demarcation, inasmuch as the

land claimed by the plaintiff to be owned and possessed by him as different from the land ss claimed by the defendants to be owned and possessed by them and both the lands were

adjoining each other. In such a situation, the only

course open for the trial deweet was to have appointed a Local Commissioner to visit the spot after issuing notice to both the parties and to

demarcate the suit land in accordance with law. on Instead of ordering the appointment of the Local Commissioner to demarcate the suit land,

the learned trial Court proceeded to dismiss the

application of the plaintiff an under Order 26 Rule 9 CPC by taking the plea that the object of local investigation was not to collect evidence on

behalf of the parties. In my opinion, appointment of a on Local Commissioner to demarcate the suit land, in a case which involves boundary dispute would not amount to collecting on behalf of either party. On the other hand, as referred to above, this would be the only course open to the trial Court to settle the dispute between the parties by appointing a Local Commissioner to visit the spot

and to submit his report after demarcation in accordance with law."

16. In light of above discussion, the petition

is allowed. The order dated 01.04.2023, passed by

learned Senior Civil Judge, Court No.1, Amb,

District Una, H.P. in CMA No. 81-VI-2023 tagged

with Civil Suit No. 209-I-2012, is set aside.

Learned Trial Court is directed to appoint a Local

Commissioner (Revenue Officer) for the purposes of

demarcating the suit land in order to ascertain its

boundaries and extent of encroachment, if any,

made thereon.

16. The petition, is accordingly, disposed of,

so also the pending miscellaneous application, if

any.






                                                  (Satyen Vaidya)
    2nd May, 2024                                       Judge
          (sushma)