Achhar Chand vs Hari Kishan and Others

Rajesh Bindal, J.—The petitioner has challenged the order dated 8.1.2013 passed by the learned Court below vide which the application filed by the petitioner under Order XXI Rule 32 CPC, for disobeying the judgment and decree dated 17.12.1987, was dismissed. Learned counsel for the petitioner submitted that the petitioner filed a suit against respondent No. 1 for permanent injunction restraining him from interfering into the possession of the petitioner-plaintiff on the land measuring 1 kanal, bearing khewat No. 154, khatoni No. 202, khasra No. 327 (1-0), as per jamabandi for the year 1982-83, situated in village Nurpur Kalan, Hadbast No. 394, Police Station Nurpur Bedi, Tehsil Anandpur Sahib, District Ropar. The same was decreed by the Sub-Judge, 1st Class, Anandpur Sahib vide judgment and decree dated 17.12.1987. The aforesaid judgment and decree was challenged by the defendant therein and the appeal was dismissed on 14.9.1990. Respondent No. 1, in connivance with his son-respondent No. 2, who is claiming himself to be NRI, started interfering in the possession of the petitioner in violation of the order of injunction. In connivance with the police, the petitioner was detained in the police station on 2.7.2006. The application under Order XXI Rule 32 CPC was filed by the petitioner on 17.7.2006 alleging violation of the injunction. During the pendency of the aforesaid application, vide order dated 19.11.2009, the learned Court below appointed Naib Tehsildar, Nurpur Bedi, as Local Commissioner to demarcate the property and report about existing position of the suit property. He furnished his report in Court, however, the same was rejected by the learned Court below and as a consequence the application was rejected.

Challenging the aforesaid order, while referring to Order XXVI Rule 14(3) CPC, learned counsel for the petitioner submitted that in case the report of the Local Commissioner is rejected, then another Local Commissioner should have been appointed as without the report of actual position at the site which could be determined only after demarcation of the property, it could not be found as to whether there was violation of the injunction granted in favour of the petitioner. Demarcation of the property could be by some revenue officer. As the learned Court below has failed to exercise the jurisdiction vested in it, the order deserves to be set aside and a direction is required to be issued for appointment of a new Local Commissioner, who should demarcate the property in terms of the instructions applicable.

On the other hand, learned counsel for the respondents submitted that the provisions of Order XXI will not apply in the case in hand, as those are applicable in the case of partition of property. Order XXVI Rule 9 and 10 CPC may be applicable. Once it is found that the report of the Local Commissioner was not in consonance with the revenue record as the dimensions did not tally, the same was rightly rejected. In the absence of any other material on record, the Court had rightly dismissed the application filed by the petitioner. It was for the petitioner to have led any other evidence as the report of the Local Commissioner may not be sufficient. The report of the Local Commissioner is merely a piece of evidence and nothing more than that.

In response to the arguments of learned counsel for the respondents, learned counsel for the petitioner submitted that scope of Order XXVI Rule 9 CPC is also similar to Rule 14 thereof.

Heard learned counsel for the parties and perused the paper book.

The undisputed facts on record are that the petitioner filed a suit against respondent No. 1 for permanent injunction restraining him from interfering into his possession on land measuring 1 kanal, bearing khewat No. 154, khatoni No. 202, khasra No. 327(1-0), as per jamabandi for the year 1982-83, situated in village Nurpur Kalan, Hadbast No. 394, Police Station Nurpur Bedi, Tehsil Anandpur Sahib, District Ropar. The suit was decreed vide judgment and decree dated 17.12.1987. The appeal filed by the defendant against the aforesaid judgment and decree was dismissed on 14.9.1990. It is alleged that respondent No. 1, in connivance with his son-respondent No. 2, started interfering in the possession of the petitioner in violation of the order of injunction. The petitioner was even detained for the whole day in the police station on 2.7.2006. The petitioner filed application under Order XXI Rule 32 CPC alleging violation of the injunction on 17.7.2006.

In the case in hand, the learned Court below vide order dated 19.11.2009, appointed Naib Tehsildar, Nurpur Bedi, as Local Commissioner, with a direction to visit the spot and report about the existing position of the land in dispute and also to report as to whether there is any encroachment thereon. The Local Commissioner was appointed on the application of the petitioner. His allegation is that the respondents have encroached upon the area to the extent of 41/2'' x 66''. The Local Commissioner sub-opining that the dimensions of khasra No. 330 mentioned in the report of the Local Commissioner did not tally with that in the revenue record. The learned Court below found that there being no other evidence on record, except the oral statement of the petitioner, no case for taking action was made out as violation of the injunction was not proved. It is strange to note that the Naib Tehsildar while carrying out inspection of the spot did not even consult the revenue record. May be that is the reason on account of which, there were discrepancies in the dimensions mentioned. Be that as it may, for determination of fact that there is any encroachment or not on a part of the property, the report from revenue officer is always relevant, as demarcation of the property is required.

The provisions of Order XXVI Rule 14 CPC may not be relevant as these provides for appointment of commission for the partition of the property, however, Order XXVI Rule 9 CPC provides for appointment of Commission to make local investigation. Rule 10 thereof provides for the procedure to be followed by the Commissioner. The same is extracted below:-

"10. Procedure of Commissioner.- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him to the Court.

(2) Report and depositions to be evidence in suit.- The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the court or, with the permission of the court, any of the parties to the suit may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Commissioner may be examined in person.- Where the court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."

Order XXVI Rule 10(3) CPC clearly provides that where the Court for any reason is dis-satisfied with the proceedings of the Commissioner, it may direct such further enquiry, as it may think fit. In the case in hand, once the report of the Local Commissioner produced in the Court was not found to be satisfactory, as the dimensions mentioned therein did not match with the revenue record, in my opinion, the learned Court below should have examined the Commissioner in Court to get things clarified or may have appointed a new Local Commissioner. Let the needful be done. For the reasons mentioned above, the impugned order dated 8.1.2013 passed by the learned Court below is set aside. The learned Court below shall proceed with the matter in the manner discussed above.

The petition stands disposed of.