Ajit Singh and Others vs Satpal and Others

Rakesh Kumar Jain, J.—The defendants are in revision against the order dated 18.10.2004 passed by the lower Appellate Court by which application filed by the plaintiff for appointment of Local Commissioner has been allowed. In brief, the plaintiff filed a suit for possession in the year 1979 which was decided on 10.06.2002. During the pendency of the appeal, the plaintiff filed an application for appointment of Local Commissioner, contested by the petitioners and allowed by the lower Appellate Court on 18.10.2004.

At the outset, counsel for respondent No. 1 has raised an objection about the maintainability of the revision petition alleging that the order of appointment of Local Commissioner or declining the appointment of the Local Commissioner is not revisable. In support of his contention, he has relied upon a judgment of this Court in the case of Rambir Singh v. Gram Panchayat, Narhera and others, (2012-1) 165 P.L.R. 429. It is also submitted that the lower Appellate Court had the jurisdiction to appoint the Local Commissioner suo motu if the Court is of the view that the local investigation is required. In this regard, he has relied upon a judgment of this Court in the case of Punjab Wakf Board, Ambala Cantt. v. Shri Neeko, 2004 (3) R.C.R. (Civil) 506.

On the other hand, learned counsel for the petitioners has referred to a decision of this Court in the case of Om Parkash v. Kishan Chand and others, 1996 (3) R.C.R. (Civil) 737 and a decision of the Kerala High Court in the case of Nirmala Ravindran v. Mohanan, 2004 (2) Civ. C.C. 81.

I have heard learned counsel for the parties and perused the record.

The lower Appellate Court, while allowing the application for appointment of the Local Commissioner, made the following observations:-

"21. Without disclosing the khasra numbers and without specifying the genesis of their possession, the contesting defendant No. 3 in association with defendant No. 10 has claimed titled by adverse possession. To achieve this end, they have denied the construction having been raised on the land on lease given by the lessor.

Learned lower Court, appreciating procedure of Consolidation of Holding well, felt that there was a gap in establishing identity of the property in dispute. Learned lower Court had noticed in para No. 29 of the judgment as under:-

"The defendants No. 3 to 10 has only given the municipality number of their shops but they had miserably failed to show the exact-number of the shops i.e. whether the shops in dispute are situated in suit property or not"

It is clear that the defendants are hiding more than they are disclosing. The sale deed is of 18.11.1955 (Ex. P2). The major changes have been noticed from that time till filing of the suit on 24.08.1979. Consolidation of Holdings took place. Many roads have come up. Municipal limits have been extended. The major construction works have come up. Keeping in view the circumstances, notwithstanding the fact that Aks-Sajra for the year 1906 (Ex. P4) and for the year 1957-58 (Ex. P5) is on the file with attending revenue record and there is no attempt on the part of the plaintiff to hide any fact, whereas the defendants, as has already mentioned, had intentionally not given location of the land in their possession with specific khasra numbers etc., interest of justice requires ascertainment of khasra numbers of the suit property, as depicted in Ex. P1 with specific reference to old khasras No. 224 to 226. It is conceded that after Consolidation of Holdings re-allotment of land has been made though physical possession of the land remained undisturbed. Once the identity of the suit property in Ex. P1 is established with reference to its location and with regard to khasra numbers in which it is located and a specific answer is available whether it had formed part of pre-consolidation khasras No. 224 to 226 or not, controversy between the parties would be making a march ahead towards its effective, competent and wholesome resolution.

Less no party should gain wrongfully taking advantage of non-ascertainment of identity and location of the suit property in Ex. P1, interest of justice requires appointment of Local Commissioner to demarcate the property in dispute (Ex. P1) and to ascertain khasra numbers in which the same exists, it is also required to be ascertained by the Local Commissioner as to whether the property in dispute (Ex. P1) formed part of pre-consolidated khasra numbers 224 to 226. Sadar Kanungo, Kurukshetra, is appointed as Local Commissioner who would visit the spot after giving notice to the learned counsel for the contesting parties and would submit his report in the light of the observations made in this order, by 27.10.2004. Fee of the Local Commissioner is fixed as Rs. 2,000/- to be paid by the appellant. Intimation be sent to the L.C. for compliance. He may take the documents from the file required by him for executing the commission against receipt."

On a perusal of the aforesaid finding, I do not find that any error has been committed by the lower Appellate Court in the appointment of Local Commissioner about which the grievance of the petitioners is that he could not have been appointed at the appellate stage. In this regard, the judgment relied upon by learned counsel for respondent No. 1 in Punjab Wakf Board''s case (supra) would be handy.

The main thrust of the argument of the learned counsel for respondent No. 1 is, however, on the issue of maintainability of the present revision petition.

In the judgment relied upon, by learned counsel for the petitioners, in Om Parkash''s case (supra), it has been held by this Court that since the order appointing the Local Commissioner is not strictly under Order 26 Rule 9 of the C.P.C., but its an order under Section 151 of the C.P.C., therefore, the revision petition against such an order is maintainable.

In Nirmala Ravindran''s case (supra), it has been held that while partitioning the immovable property, the report of the Commission is not revisable, but its correctness can be challenged under Article 227 of the Constitution of India.

These two judgments are not at all applicable to the facts and circumstances of this case after the decision of this Court in Rambir Singh''s case (supra), extensively referring to the following judgments:-

Pritam Singh and another v. Sunder Lal and others, (1990-2) 98 P.L.R. 191;

Chand Jain v. Vishnu Bhagwan Mangla, 2006 (2) R.C.R. (Civil) 445;

Harvinder Kaur and Another Vs. Godha Ram and Another, ;

Hari Om v. Minish Kumar, (2005-2) 140 P.L.R. 690;

Bant Singh alias Balwant Singh and another v. Reghubir Singh and others, 2008 (4) R.C.R. (Civil) 260;

Rajiv Kumar Batra v. Kashmiri Lal Sika, (2010-1) 157 P.L.R. 195; and

Surya Dev Rai Vs. Ram Chander Rai and Others, .

In view of the aforesaid discussion, the present revision petition is dismissed being not maintainable. Even otherwise, there is nothing on merits in this case for which interference is called for.