Himachal Pradesh High Court

Geeta Ram & Anr vs Kashmiri Lal on 4 September, 2024

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

( 2024:HHC:7856 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA







                                                     Decided on: 04.09.2024

    Geeta Ram & Anr.                                                  ...Petitioners





                                     Versus


    Kashmiri Lal                         ....Respondent.

............................................................................................ Coram Ms. Justice Jyotsna Rewal Dua, Judge Whether approved for reporting?1

For the petitioners: Mr. Mehar Chand Thakur, Advocate.

For the respondent: Mr. P.S. Goverdhan Sr. Advocate with Mr. Rakesh Thakur, Advocate.

Jyotsna Rewal Dua, Judge

Petitioners were the defendants before the learned Trial

Court. They have grievance to the order dated 29.04.2024 passed by

the learned Trial Court allowing an application moved by the

respondent/plaintiff under Order 26 Rule 9, read with Section 151 of

the Civil Procedure Code at the stage of arguments in the civil suit.

Hence, they have invoked jurisdiction under Article 227 of the

Constitution of India by means of present petition.

The parties are hereinafter referred to as they were

before the learned Trial Court.

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

( 2024:HHC:7856 )

2. Facts.

2(i) Civil suit for permanent prohibitory injunction was

instituted by the respondent-plaintiff against the petitioners-

defendants seeking to restrain them from making any sort of

construction over the land comprised in Khasra No. 483/3 and

adjoining khasra numbers. The relief as prayed for by the respondent-

plaintiff reads as under:-

"It is, therefore, prayed that a decree for permanent prohibitory restraining, the defendants from making any sort of construction over their own land comprised in Khasra No.

483/3 and adjoining khasra numbers without leaving/keeping

and providing the one meter wide passage/path adjoining to the newly constructed house of the plaintiff for his use, from their own land in Khasra No. 483/3 and other Khasra

numbers, situated in Mauza Bet Khas, Tehsil and District Solan HP as per the terms and conditions of the above said

compromise exhibit PA and from violating and disobeying the terms and conditions of the compromise exhibit PA either by

themselves or through agents, servants, assigns, family members, attorneys, labourers, contractors, whosoever in

any manner whatsoever may kindly be passed in favour of the plaintiff and against the defendants with costs."

2(ii) The petitioners-defendants contested the civil suit and

filed their written statement. A specific plea was taken that in a

previous civil suit involving the same suit property and between the

same parties, a compromise had taken place; Dispute with regard to

Khasra No. 483 had been fully settled and compromised therein;

( 2024:HHC:7856 )

Prior to the execution of the compromise deed, the parties to the suit

had got divided Khasra No. 483 into three parts i.e. Khasra No.

483/1, Khasra No. 483/2 & Khasra No. 483/3 through revenue

agency; In the compromise, Khasra Nos. 483/1 & 483/2 were given

to the plaintiff, whereas Khasra No. 483/3 was given to the

defendants; That compromise specifically recorded that no path

would be provided to the plaintiff through Khasra No. 483/3.

2(iii) Parties led evidence in support of their respective

contentions; The matter reached the stage of arguments; At that

stage, the plaintiff moved an application under Order 26 Rule 9 read

with Section 151 of CPC seeking demarcation of the suit property

through a Local Commissioner. This application was allowed by the

learned Trial Court on 29.04.2024.

It is in the aforesaid background that the defendants

have instituted this petition.

3. Submissions

3(i) Learned counsel for the petitioners/defendants

contended that there was no occasion for the learned Trial Court to

order appointment of Local Commissioner for demarcating the suit

land i.e. Khasra No. 483/3. It was the pleaded case of the plaintiff that

defendants had raised construction over Khasra No. 483/3; That

there was interference by the defendants over Khasra No. 483/3,

whereas defendants plea was that they were entitled to raise

( 2024:HHC:7856 )

construction over Khasra No. 483/3 in view of the compromise

reached between the parties in the previous suit bearing Civil Suit No.

167/1 of 2013. It was also submitted that the aforesaid fact had been

specifically pleaded by the defendants in their written statements.

Parties had already adduced evidence. The application seeking

appointment of Local Commissioner was moved by the plaintiff, when

the matter was being repeatedly adjourned for arguments. The

application was only a ploy to delay the proceedings in an attempt to

hunt evidence for covering the lacuna in the evidence of the plaintiff.

Hence, prayer was made for setting aside the impugned order.

3(ii) Learned Senior Advocate for the respondent-plaintiff

defended the impugned order. Submissions were made that behind

the garb of compromise deed, the petitioners-defendants had been

interfering/encroaching over the land allotted to the respondent-

plaintiff. That the petitioners-defendants have encroached upon the

path made available to the plaintiff in terms of compromise. Since it

is a boundary dispute, therefore, the learned Trial Court did not err in

law in appointing the Local Commissioner for carrying demarcation of

the suit land.

4. Having heard learned counsel on both sides and

considering the case file, my observations are as under:-

( 2024:HHC:7856 )

4(a) The suit filed by the plaintiff was for decree of

permanent prohibitory injunction to restrain the defendants from

.

interfering over the suit land, in particular specific Khasra No. 483/3.

4(b) The case set up by the defendants was that Khasra No.

483/3 had fallen to their share in terms of the compromise effected

between the parties in Civil Suit No. 167/1 of 2013. That they had

every right to raise construction over Khasra No. 483/3 in the manner

they liked.

4(c) Compromise so executed between the parties in

previous civil suit has been placed on record. In terms of paras-4 & 6

of the compromise, Khasra No. 483/3 had fallen to the share of the

defendants. As per aforesaid compromise, plaintiff has no right,

whatsoever, over Khasra No. 483/3 including the passage stated to

be therein. At the cost of brevity, it may again be emphasized that the

suit filed by the plaintiff was specific that the defendants had raised

construction over Khasra No. 483/3, which amounts to interference

with his right. That the defendants be restrained from raising any sort

of construction over Khasra No. 483/3.

In view of the compromise reached between the parties

in Civil Suit No. 167/1 of 2013 and in view of the case pleaded by

both the parties, it was not a case of boundary dispute. There was no

necessity, whatsoever, for the learned Trial Court to have called for

the report of the Local Commissioner for demarcating the suit land.

( 2024:HHC:7856 )

4(d) The defendants have clearly asserted their rights over

Khasra No. 483/3 and had refuted any rights/title etc. of the plaintiff

.

over Khasra No. 483/3 even inclusive of any passage therein.

4(e) Additionally the fact can not be lost sight of that the

application under Order 26 Rule 9 CPC was moved by the plaintiff,

when the matter was being repeatedly fixed for arguments. In case,

the plaintiff felt any necessity to move for demarcation, it was for him

to take appropriate steps at the relevant time more so when the

objection that Khasra No. 483/3 had been given to the defendants in

terms of the compromise recorded in the previous civil suit between

the parties, had been taken up by defendants at the first available

instance i.e. in their written statement filed on 05.04.2017. The

present application seeking appointment of Local Commissioner was

nothing but an endeavour on part of plaintiff to look for evidence with

the assistance of the Court, which cannot be permitted.