Om Parkash and Others vs Chuni Lal and Others

Deepak Gupta, J.—By means of this petition the Petitioners (here-in-after referred to as the Defendants) have challenged the order dated 24.02.2011 whereby the learned Civil Judge (Senior Division) Nadaun has allowed the application filed by the Plaintiffs under Order 26 Rule 9 CPC for appointment of Local Commissioner to demarcate the suit land.

The undisputed facts are that the Plaintiffs filed a suit praying that they are owners of Khasra Nos. 489, 490, 491, 496, 497, 498, 499, 500, 501, 502, 503, 504, 505, 508, 509, 510, 511, 512, 513, 514 kita 20 measuring 2028-03 sq.mts. situate in Tika Doli Gharana Mouza Kohla, Tehsil Nadaun District Hamirpur and prayed that the boundary of these khasra numbers be fixed by way of demarcation and the Defendants be restrained from raising any construction or interfering in the land in question.

The Defendants filed written statement. They claimed that out of the suit land they are in possession of Khasra Nos. 504, 505, 508, 509, 510, 511, 512, 513, 514 measuring 1117.40 sq.mts. and they have constructed houses and cattle shed and have fenced the remaining portion of this land. The parties led evidence and when the case was fixed for arguments the Plaintiffs filed this application praying that a revenue expert be appointed to demarcate the suit land and to find out the exact dimension, measurement and nature of the exact encroachment made by the Defendants.

It was contended before the learned trial Court and has been contended before me by the learned Counsel for the Defendants that the Defendants are claiming their ownership by way of adverse possession and therefore there is no boundary dispute and as such the learned trial Court should not have allowed the application.

This aspect of the matter has been considered by the learned trial Court. As observed by the learned trial Court the Defendants do not claim adverse possession in respect of the entire land. They claim adverse possession over the part of the suit land. The Plaintiffs have not admitted the adverse possession or in fact the possession of the Defendants over all these nine khasra numbers. The learned trial Court has exercised jurisdiction vested in it by allowing the application. It cannot be said that there is any jurisdictional error or such a mistake has been committed by the learned trial Court which calls for interference in proceedings under Article 227 of the Constitution of India.

Shri Neeraj Gupta, learned Counsel for the Petitioners has placed reliance on a judgment of this Court in CMPMO No. 365 of 2010 titled as Krishna Devi v. Hukami Ram and Ors. decided on 20.10.2010. In my view the facts of that case are totally different. In that case the Defendants had claimed adverse possession over the entire suit land and therefore, this Court held that there is no need for appointment of the Local Commissioner. When the Defendants claim adverse possession on a part of the suit land the appointment of the Local Commissioner may help the trial Court to determine what is the exact portion which is in the possession of the Defendants and whether they are entitled to claim that they have become owners by way of adverse possession. In fact the Commissioner can, in his report, also indicate how old are the structures raised in the said khasra numbers, which would help the Court in determining whether the case of the Defendants that they have become owners by way of adverse possession is made out or not.

Therefore, the petition is rejected. It is, however, made clear that any observation made here-in-after will have no impact on the merits of the case. No costs.