Liaq Ram Chauhan vs Shanta Sharma and Others

Deepak Gupta, J.—This second appeal is directed against the Judgment of the learned District Judge, Shimla in Civil Appeal No. 68-S/13 of 1998 whereby he dismissed the appeal of the plaintiff-appellant and affirmed the Judgment and decree dated 28.3.1998 passed by the learned Sub Judge, Shimla dismissing the suit of the plaintiff.

The plaintiff-appellant filed a suit for issuance of a decree of permanent prohibitory injunction restraining the defendants from raising any construction on or over the set-back area left by them and from making any encroachment in the land of the plaintiff comprised in Khasra No. 545/246 measuring 214 square yard 6 square feet in Anand Bhawan Estate, Shimla-3.

Undisputedly, the plaintiff is the owner of the aforesaid land and has constructed a three storeyed house on a portion of the suit land. The allegation is that the respondents-defendants have purchased the adjoining plot and raised construction thereupon. It is the case of the plaintiff that he had left appropriate set-backs but the defendants while raising construction has left iron bars towards the property of the plaintiff with a view to raise a lintel thereupon. It is alleged that the defendants want to encroach upon the land of the plaintiff. The defendants contested the suit. There case was that the plaintiff had not left any set-backs while constructing his house and according to the defendants they had left 121/2 feet width vacant space towards the property of the plaintiff. The learned trial Court dismissed the suit of the plaintiff but it would be pertinent to mention that while dismissing the suit it held that the dispute between the parties was basically a boundary dispute and that it was necessary to get the boundaries demarcated to prove the case. The learned trial Court came to the conclusion that though the plaintiff and the defendant both had made reference to the demarcation report and the plaintiff while appearing as PW-3 had stated that he had got the demarcation of the land done but no demarcation report was produced by him. It would be pertinent to mention that during the course of trial the plaintiff moved two applications for appointment of a local commissioner to demarcate the land. The first application was moved on 18.1.1994 which was rejected on the ground that the plaintiff had still not led any evidence. The second was moved on 14.11.1996 and this was rejected on 12.12.1997 on the ground that the land had been demarcated by the revenue authorities and the report is on the file, therefore, the application was dismissed.

After dismissal of the suit, the plaintiff filed an appeal and even in the appeal he filed an application for demarcation of the land and on 29.7.1997 the learned District Judge passed the following order:

No reply to the application for appointment of Local Commissioner is intended to be filed. But at the same time the learned Counsel for the respondents says that the respondents oppose the prayer for appointment of Local Commissioner on the same grounds as in the trial Court. Now put up for arguments on the application as also in the main appeal on 22.9.1999.

Despite such order being passed while disposing of the appeal no order was passed on the application for appointment of Commissioner to demarcate the land. Here, it may be pertinent to refer to certain observations of the learned District Judge:

The two points being inter-connected and co-related are taken up together for discussion and determination. It may be stated at the very outset that the plaintiff has not led any definite evidence in support of his allegation that the iron bars allegedly left loose, if straightened would extend over the set back area of the defendants house and/or his adjoining property. Such a fact could have been proved only by getting the boundary of the properties of the parties delineated. Plaintiff took no steps to get the boundary delineated. He did not seek the appointment of any Local Commissioner for the demarcation of the properties of the parties nor did he place on record any demarcation report, though from his oral testimony, which he made as PW-2, it appears that the demarcation was carried out on the spot on this asking and a report was also prepared. No explanation has been put forward by him for not producing the demarcation report. Unless the common boundary of the properties of the parties is delineated and known to the court it cannot be said that the iron bars allegedly left loose by the defendants, if straightened would extend over the set back area and/or the area of the plaintiff beyond the set-back area. Similarly there is no evidence with respect to the plaintiff''s plea that the dry latrines allegedly constructed by the defendants are over the set back area or his adjoining vacant area. This fact could have also been determined only by getting the common boundary of the properties of the parties fixed on the spot.

At this stage, I am not going into the merits as to whether the application for demarcation filed by the plaintiff should have been allowed or not. This is something which the learned lower Appellate Court should have decided. However, it is more than apparent that this application was required to be decided especially in view of the observations of the learned District Judge quoted here-in-above.

In view of the fact that an important application has not been decided, I am of the considered view that the Judgment and decree passed by the learned lower Appellate Court has to be set-aside and the matter remanded to the learned District Judge for decision afresh. Therefore, the Judgment and decree passed by the learned lower Appellate Court is set-aside and the matter is remanded to the learned District Judge, Shimla who shall also decide the application for demarcation moved by the plaintiff. Parties through their counsel are directed to appear before the learned District Judge on 13.12.2010. Since the matter is a very old one, the learned District Judge is directed to dispose of the same as early as possible and in any event not later than 31st May, 2011.