Satish Chand vs Manoj Kumar and Others

Deepak Gupta, J.—This petition under Article 227 of the Constitution of India is directed against that portion of the order dated 14.5.2010 passed by the learned Additional District Judge, Shimla whereby the application filed by the Petitioner for appointment of the Local Commissioner was rejected.

Briefly stated the facts of the case are that the Respondent Manoj Kumar filed a suit against the Petitioner Satish Chand for mandatory and permanent prohibitory injunction with respect to the land comprised in Khasra No. 705. Thereafter, amendment was carried out and a grievance was also raised in respect of Khasra No. 706 and it was alleged that the Petitioner-Defendant had encroached upon the land comprised in Khasra Nos. 705/1 and 706/1. The suit was filed in the year 2002. Thereafter, parties led evidence and finally the suit was partly decreed and the Defendant was directed to remove the super structure raised by him in land comprising Khasra No. 705/1 as described in Naksha Tafawat, Ext. P.W. 4/B attached with demarcation report, Ext. P.W. 4/A measuring 0-00-72 hectares and thereafter, deliver the vacant possession thereof to the Plaintiff. Defendant No. 1 was also restrained from interfering in the suit land in any manner.

The Defendant filed an appeal and in the appeal, he filed an application for appointment of fresh Local Commissioner. This application was rejected by the impugned order. Hence the present petition.

Sh. B.S. Chauhan, learned Counsel for the Petitioner has taken me through the entire record including the demarcation report. According to him, though the application for demarcation was only in respect of Khasra Nos. 655 and 705, the revenue officer has wrongly stated that there is encroachment on Khasra No. 706 also. He also contended that in the Naksha Tafawat, no measurements with regard to the Khasra No. 706 or 706/1 have been given.

Sh. Chauhan has tried to show that the demarcation report is incorrect and cannot be relied upon. I am afraid that this question cannot be looked into at this stage.

It would also be pertinent to mention as noted hereinabove that the decree has been passed against the Defendant-Petitioner only in respect of Khasra No. 705/1 and not in respect of Khasra No. 706/1.

There is no explanation as to why such application was not filed before the learned Trial Court and was filed only when the appeal was virtually ripe for hearing. In the present case, the demarcation has also already been carried out and unless the said demarcation report is set aside or not relied upon by the Court, no fresh demarcation can be ordered.

A learned Single Judge of this Court in Amar Singh v. Narpat Ram 2010 (1) Him.L.R. 474 has clearly held that once a demarcation has been carried out by a Revenue Court, no fresh Local Commissioner can be appointed unless the report is set aside or is not accepted by the Court.

Therefore, the petition is rejected. It is however, made clear that if at the time of hearing of the appeal, the learned Lower Appellate Court comes to the conclusion that no reliance can be placed on the demarcation report Ext. P.W. 4/A then he may consider the question of appointing a fresh Local Commissioner.

The petition is disposed of in the aforesaid terms. No order as to costs.