Rikhi Ram vs Pratap Chand

Dharam Chand Chaudhary, J.—Challenge herein is to the order dated 4.2.2014, passed by learned Civil Judge (Junior Division), Court No. 2, Hamirpur, in an application under Order 26 Rule 9 CPC, whereby the prayer for appointment of local commissioner has been declined and the application dismissed.

The subject matter of dispute is the land entered in Khata No. 56 min, Khatauni No. 70 min, Khasra No. 1530/317 measuring 1K-6M and Khasra No. 1545/317 measuring 6K-1M situated in Tikka Dhirar, Mauza Mewa, Tehsil Bhoranj, District Hamirpur (H.P.)

The complaint is that the respondents-defendants are trying to take forcible possession of the suit land and threatening to raise construction thereon. The respondents have, however, denied the claim so laid in the plaint being wrong.

The petitioner-plaintiff had earlier filed an application for appointment of Local Commissioner, which was ordered to be dismissed on 17.2.2011 on the ground that the parties at that time had not led the evidence. Now the petitioner-plaintiff has produced the evidence. He himself has stepped in the witness box and examined Shri Surjit Kumar PW-2, a retired Kanoongo. The plaintiff and also Surjit Kumar have admitted that on account of overlapping of land on the spot, it is not possible to conduct the demarcation. PW-2 Surjit Kumar has further stated that it is he who had carried out the demarcation during his posting as Kanoongo in Nagrota circle and submitted the report Ex. PW-2/B. As per his version, though efforts were made to demarcate the land, however in view of the overlapping, which according to him, caused due to preparation of improper settlement record and that such overlapping is qua Tika Nagrota, villages Ghilar and Sauta, therefore, it was not possible to demarcate the land.

In such a situation, I am in agreement with learned trial Judge that when it is not possible to demarcate the land on the spot, no useful purpose is likely to serve by way of appointment of Local Commissioner.

True it is that it is obligatory on the part of the Court seized of the matter to appoint commission to settle the boundary dispute, however, when in a situation like the one in the present case, it is not possible to conduct demarcation on account of improper preparation of revenue record and overlapping of area, on account of that an order to appoint a commission would be nothing but merely a futile exercise. An order, which on the face of the record cannot be executed, should not be passed.

There cannot be any quarrel with respect to the legal principles settled by a Coordinate Bench of this Court in Bali Ram Vs. Mela Ram and Another, , however, the same is not applicable in the given facts and circumstances of this case.

If coming to the law laid down by the Hon''ble apex Court in Subhaga and Others Vs. Shobha and Others, and Haryana Waqf Board Vs. Shanti Sarup and Others, , with due regards thereto, being distinguishable on facts, is not attracted in this case.

The present in the given facts and circumstances, therefore, is a case where learned trial Court has not committed any illegality or irregularity in dismissing the application filed for appointment of local commissioner. The judgment rendered by a Coordinate Bench in RSA No. 641 of 2012, titled Prabal Singh versus Kallu @ Kali Ram and Others, is also not applicable in this case. However, this Court leaves it open to the trial Court to look into the question of asking for a report from the Revenue Agency, in case the petitioner makes out any case in this behalf and obtaining of such report is deemed appropriate for the advancement of justice and fair play.

In view of the discussion hereinabove, I find no merit in this petition and the same is accordingly dismissed. Pending application(s), if any, shall also stand disposed of.

The parties to appear in the trial Court on 18th July, 2014. The record be returned forthwith so as to reach in the trial court well before the date fixed.