Devi Ram vs Krishan Pal

Deepak Gupta, J.—This appeal is directed against the judgment passed by learned Additional District Judge (Presiding Officer Fast Track Court), Solan camp at Nalagarh in case No. 4 FTN/13 of 2006 decided on 21.3.2007 whereby he allowed the appeal filed by the plaintiff-Krishan Pal, set-aside the judgment and decree of the learned Civil Judge (Senior Division) Nalagarh dated 20.4.2006 in Civil Suit No. 239/1 of 2002 and directed that a fresh Local Commissioner be appointed and remanded the case back to the trial Court.

The undisputed facts are that the plaintiff filed a civil suit claiming that the defendant had encroached upon his land comprised in khasra No. 505. There is no dispute that the defendant is owner of land comprising khasra No. 506 which adjoins this land. At the instance of the defendant a demarcation was carried out by DW-2 on 26th November, 2002 in the presence of both the parties. The said witness was asked to demarcate khasra No. 506. He carried out the demarcation of said khasra number and found that the defendant Devi Ram had constructed a house only on the land comprised in khasra No. 506. This demarcation admittedly was carried out in the presence of the plaintiff and the plaintiff has made a statement which is signed by him to the effect that he was satisfied with the demarcation report given by DW-2.

It appears that thereafter, the plaintiff got another demarcation carried out through PW-2. It is not understood how a second demarcation of the same land was obtained when the earlier report had already been given and the same had not been set-aside. A learned Single Judge of this Court in CMPMO No. 591 of 2009 titled Amar Singh v. Narpat Ram decided on 2.3.2010 held that unless the earlier demarcation report is set-aside second demarcation cannot be carried out.

It would also be pertinent to mention that when the second demarcation was carried out defendant Devi Ram did not agree to the said report and refused to sign the same.

The learned trial Court dismissed the case of the plaintiff relying upon the earlier demarcation report. The learned lower Appellate Court has come to the conclusion that both the reports are liable to be set-aside. The reasons given are as follows:

In the present case, it appears from perusal of both demarcation reports Ex.P1 and Ex.D1 that the Revenue Officer while conducting demarcation did not properly follow the instructions referred to above. Three fixed recognizable points such as admitted by the parties and remained undisturbed since last settlement on different sides of the suit land appear to have not been taken. It has not been explained in detail in none of reports as to how measurement work made. Hence, none of the demarcation reports Ex.P1 and Ex.D1 can be said to have been carried out in accordance with instructions issued by Financial Commissioner (Revenue) referred to above. So, both demarcation reports Ex.P1 and Ex.D1 are held to be incorrect. The findings given by learned trial court that demarcation report Ex.D1 deserves to be given more credence as compared to the demarcation report Ex.P1 does not appear to be legal and valid. Hence, the judgment and decree under appeal dated 20.4.2006 cannot be said to be sustainable in the eyes of law. The same deserves to be set-aside and accordingly the same is set-aside.

I am constrained to observe that the observations of the learned lower Appellate Court are totally uncalled for. Before setting aside a report the Court must give reasons for setting aside the same. All that is stated in para 12 is that "it appears that the Revenue Officer did not properly followed the instructions referred to above." There is no clear-cut finding as to which instructions were not followed. A report cannot be set-aside without clear-cut findings. Further more the earlier report dated 26.11.2002 had been accepted by the plaintiff. Even while appearing in the witness box the plaintiff admitted that the demarcation was conducted in his presence and he had accepted the report. Therefore, there was no reason for setting aside the same.

In view of the above discussion, I am of the opinion that the direction given by the learned trial Court to appoint a fresh Local Commissioner is totally uncalled for. The learned lower Appellate Court was not at all justified in remanding the case back to the trial Court. Even assuming for the same of argument that fresh Local Commissioner was to be appointed then also no case was made out for wholesale remand of the case.

In view of the above discussion, the appeal is accepted, the judgment of the learned lower Appellate Court dated 21.3.2007 is set-aside and the matter is remanded to the Additional District Judge (FTC), Solan to decide the same on merits after hearing the parties. Both the parties are directed to appear before the learned Appellate Court (FTC) Solan on 6th December, 2010. The Registry shall ensure that the record of the case reaches the Court below before the said date.No costs.