Punjab-Haryana High Court
Hari Singh And Ors vs Gurudwara Sahib Village Chang ... on 8 August, 2023
2023:PHHC:102596
C.R.No.1293 of 2022 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Sr. No.288
Case No. : C.R.No.1293 of 2022
Date of Decision : August 08, 2023
Hari Singh and others .... Petitioners
vs.
Gurudwara Sahib Village Chang
Basoya through its Gurudwara
Prabandhak Committee and others .... Respondents
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Mr. Satbir Rathore, Advocate
for the petitioners.
Mr. Ravi Chadha, Advocate
for respondent no.1.
* * *
GURBIR SINGH, J. :
1. Challenge in this revision petition filed under Article 227 of the
Constitution of India is to order dated 17.02.2022 (Annexure P-6), passed by
learned Civil Judge (Junior Division), Dasuya, whereby the application filed
by the petitioners-defendants (Annexure P-4), for appointment of Local
Commissioner, has been dismissed.
2. Mr. Ravi Chadha, Advocate, has put in appearance on behalf of
respondent no.1, who was proceeded ex-parte on the last date of hearing.
On his request, he is allowed to join the proceedings.
3. The brief facts, which are necessary for just decision of this
revision petition, are that the plaintiff-respondent no.1 filed a suit for
permanent injunction against the petitioners-defendants and other persons,
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restraining them not to demolish and not to change the nature of the
Gurudwara Sahib building and further for restraining them not to remove
any articles of the Gurudwara Sahib from the said premises.
4. The case set up in the plaint is that the plaintiff-Committee was
constituted in the year 2005-06 and the said Committee is managing and
maintaining the affairs of the Gurudwara Sahib since its inception and the
same is duly registered. In the year 2005, defendants Tarlok Singh and
Lashkar Singh filed a Civil Suit for permanent injunction against the
plaintiff-Committee. The said suit was decreed to the effect that nature of the
Gurudwara Sahib would not be changed and the articles of the Gurudwara
Sahib should not be removed. The said decree was upheld by the learned
District Judge. After passing of the above-said judgment and decree, some
of the defendants formed a Committee namely "Purana Gurudwara
Prabandhak Committee" on 05.10.2011. Forming of such Committee was
challenged by the plaintiff-Committee by filing a civil suit (Annexure P-1),
which was decreed by the Court of Civil Judge (Junior Division), Dasuya
and the newly formed Committee, which was formed by some of the
defendants. was declared to be unauthorized, illegal, null and void.
Defendants then preferred appeal against the said order, which was
dismissed by the learned Additional District Judge, Hoshiarpur vide
judgment dated 08.05.2018. The defendants never relished the above-said
decree and are illegally and unlawfully demolishing the existing structure of
the Gurudwara Sahib and are also threatening to remove the articles of the
Gurudwara Sahib.
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5. The defendants contested the suit by filing written statement
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wherein it was stated that there was one old Gurudwara Sahib in the village
since the time of fore-fathers of the parties. In the year 2003, plaintiff and
his party had threatened to demolish the said old Gurudwara Sahib. A civil
suit was filed against the plaintiff which was decreed. Appeal against the
said decree was also dismissed. So, the plaintiff concealed the material facts
from the Court that there are two Gurudwara Sahib and he is only managing
the affairs of new Gurudwara Sahib constructed by them in the year 2003
and the old Gurudwara Sahib always used to be managed and controlled by
the old Gurudwara Prabandhak Committee. With the free consent of the
parties, a compromise was effected on 02.06.2019, whereby plaintiff agreed
that previously constituted Prabandhak Committee of old Gurudwara Sahib
would carry on performing its duties of the old Gurudwara Sahib and in
case, any building is raised in the old Gurudwara Sahib by inhabitants of the
village Managing Committee, then no one would have any objection
whatsoever. The plaintiff agreed not to interfere in any manner in the
working of managing Committee of the old Gurudwara Sahib and further to
withdraw the cases on the basis of compromise dated 02.06.2019. It was
further stipulated that in case of any dispute, the matter would be resolved
by the Gram Panchayat. Since the old Gurudwara Sahib was in dilapidated
condition, therefore, in view of the compromise dated 02.06.2019, the
inhabitants of the village and office bearers of the old Gurudwara
Prabandhak Committee demolished the old structure and constructed the
major portion of the old Gurudwara Sahib well before the filing of the suit
and only lentil was left to be placed on one portion of the Gurudwara Sahib.
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6. Learned counsel for the petitioner has argued that the
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defendants-petitioners filed an application under Order 26 Rule 9 CPC for
appointment of Local Commissioner to inspect the spot and report regarding
actual and factual position of the suit property for proper decision of the
case. The Trial Court dismissed the application mainly on the ground that
the Local Commissioner cannot be sent for ascertaining the possession,
whereas prayer in the application is to ascertain the fact whether old
structure of the Gurudwara Sahib has been demolished or removed and new
construction has been raised or not. A Local Commissioner can always be
appointed to determine the fact as to what portion has been constructed upon
and what not and it would not amount to collection of evidence on behalf of
a party. Learned counsel further submits that he only prays for appointment
of Local Commissioner to visit the spot and to report about the existence of
old structure or as to whether the same is demolished and new structure of
the Gurudwara Sahib is already constructed. Reliance in this regard has
been placed on a judgment of Hon'ble Supreme Court in Ece Industries
Limited (1) vs. S.P.Real Estate Developers Private Limited and another
reported as 2009(12) SCC 773, as also various judgments passed by this
Court in Malwinder Singh vs. Maninder Singh and others reported as
2021(2) RCR (Civil) 849, Deepak Narula vs. Shri Satruhan Dwivedi and
others reported as 2013(33) RCR (Civil) 255, Jitender alias Leela vs.
Rashma reported as 2022(1) Law Herald 178.
7. I have heard learned counsel for the parties and perused the
case file.
8. The suit has been filed for permanent injunction restraining the
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defendants etc. not to demolish and not to change the nature of the
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Gurudwara Sahib building, as shown in the site plan attached with the plaint
with specific boundaries and also not to remove any article of the
Gurudwara Sahib from the said premises. The petitioners filed written
statement wherein it was specifically pleaded that the old Gurudwara Sahib
was in dilapidated condition, so, the inhabitants of the village and the old
Gurudwara Prabandhak Committee have demolished the old structure and
constructed the major portion of the old Gurudwara Sahib well before the
filing of the suit. Learned counsel also referred to the compromise that took
place before the filing of the suit, wherein it was agreed by the parties that in
case, any building is raised in the old Gurudwara Sahib by inhabitants of the
village Managing Committee, then no one would have any objection
whatsoever. The learned Court dismissed the application mainly on the
ground that possession cannot be ascertained by appointment of Local
Commissioner.
9. The learned Court has fallen in error by deciding the application
in the aforesaid manner. A Local Commissioner can definitely be appointed
to make local investigation. Whether old building is existing or a new
building has been constructed there or above the construction existing at the
spot, the said fact can be ascertained by local investigation. It would not
amount to collecting evidence on behalf of a party. So, the impugned order
dated 17.02.2022 (Annexure P-6), passed by learned Civil Judge (Junior
Division), Dasuya, whereby the application of petitioners-defendants
(Annexure P-4), for appointment of Local Commissioner has been
dismissed, is hereby set aside and it is directed that Local Commissioner be
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appointed as per rules for local investigation of spot to ascertain :- (i)
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whether old building is existing?; (ii) new building has been constructed on
that place; (iii) construction existing at the spot. However, Local
Commissioner shall not report as to who is in possession or not in
possession regarding the said property.
10. With the above observations, the present revision petition is
allowed. The petitioners are directed to appear before the concerned Court
on 04.09.2023. The said Court shall pass the order regarding appointment of
Local Commissioner, after giving notice to the other party, in accordance
with law. The Court shall also give directions to the Local Commissioner
which are necessary for local inspection and also shall fix fee of Local
Commissioner.
11. Pending applications, if any, shall stand disposed of along with
this judgment.
August 08, 2023 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
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