Shiv Ram & Ors vs Karam Chand & Ors

Satyen Vaidya, J

By way of instant petition, challenge has been made to order dated 28.12.2019 passed by learned Civil Judge (Junior Division) Anni, District Kullu, H.P. In Case No. 0100064 of 2013, whereby the application of the petitioners under Order 26, Rule 9 of the Code of Civil Procedure for appointment of Local Commissioner has been rejected.

The facts necessary for adjudication of the petition are that the petitioners as plaintiffs have filed a suit for permanent and mandatory injunction against the respondents/defendants with a prayer in following terms:-

“Suit for permanent prohibitory injunction restraining the defendant from constructing, encroaching and changing the nature of land, or raising any kind of construction upon the suit land in any way comprised in Khewat No. 1069/1020, Khatoni No.1260/1212, Khasra No. 6098 measuring 00-11-00 Biswas situated in Muhal Manjha Desh, Tehsil Anni, District Kullu, H.P. and mandatory injunction to restore the land in its original position and had over the possession of the suit land to the plaintiffs.”

The relief as claimed in the suit is only with respect to Khasra No. 6098, which the plaintiffs claim to be owned by them. Before filing the suit, the plaintiffs got the demarcation to ascertain the boundary of Khasra No. 6098 by making an application to the revenue authorities. The demarcation report as Annexure P-2 has been placed on record. It is revealed from such report that out of Khasra No. 6098, measuring 11 biswas, about two biswas was in possession of respondent/defendant Karam Chand, where he had raised construction and about one biswa of land was in possession of respondent/defendant Govind Ram and remaining 8 biswas of khasra No. 6098 was vacant. By placing reliance on such demarcation report, plaintiffs filed the suit.

According to plaintiffs, during the pendency of the suit the defendants applied for demarcation of the same land at their back and the revenue officer allegedly demarcated land. The report, Annexure P-3, prepared in pursuance to such demarcation has also been placed on record. As per this report, out of 11 biswas of land comprised in Khasra No. 6098 a house belonging to one Madan Lal was found on 10 biswas and on one biswa of land house of Govind Ram was found.

The contention of learned counsel for the petitioners/plaintiffs is that in view of the contradictory demarcation reports, plaintiffs had applied for fresh demarcation which was justified in the facts of the case, however, the learned trial Court has rejected such prayer by passing the impugned order in an illegal and perverse manner.

The discrepancy pointed out by the learned counsel for the petitioners/plaintiffs in two demarcation reports is with respect to the possession of defendant Karam Chand as suggested in the first report Annexure P-2 and that of Shri Madan Lal s/o Sangat Ram as mentioned in second report Annexure P-3.

I have given my thoughtful consideration to the contention raised by learned counsel for the petitioners/plaintiffs and have also gone through the documents placed on record.

The fundamental principle for appointment of Local Commissioner is to ascertain any fact which according to Court may be necessary for elucidation of matter in issue. The ownership of plaintiffs over khasra No. 6098 is not in dispute. The case of the plaintiffs is that the defendants have made encroachment on khasra No. 6098 and are further trying to interfere therein. The issue, thus, primarily is with respect to the encroachment made on khasra No. 6098. This issue can be decided on the basis of evidence to be led by the respective parties independently.The demarcation as envisaged under Section 107 of the Land Revenue Act is for the purpose of identification of the boundaries of land and is not available for creation of any evidence with respect to possession on any portion of land. In this view of the matter, the demarcation, in my considered view, will not be sole criteria for adjudging the issue involved in the suit. The plaintiffs already have got a demarcation report in their favour vide Annexure P-2. No new dispute with respect to the identity of boundaries of suit land has emerged even after the coming into being of demarcation report Annexure P- 3. Hence, it was not incumbent upon learned trial Court to have allowed the prayer for the appointment of Local Commissioner. The validity and legality of both the demarcation reports Annexure P-2 and P-3 are yet to be adjudged upon by learned trial Court.

I have gone through the impugned order and have not found any illegality much less perversity in the same. The discretion, vested in the learned Trial Court, has been exercised judiciously. No error of jurisdiction has been pointed out or found in the impugned order.

Learned counsel for the petitioners/plaintiffs has placed reliance on a judgment passed by this Court in Bali Ram vs. Mela Ram, 2002 (3) Shimla Law Cases, 131. The reliance so placed on the judgment will not serve the cause of the petitioners in the instant case as the said judgment was passed in its peculiar facts where the dispute, as to the boundary, was the prime issue involved in the matter.

In result, there is no merit in the instant petition and the same is dismissed accordingly. Pending applications, if any, also stand disposed of.