Shri Shashi Pal. vs Shri Kuldeep.

Dharam Chand Chaudhary, J.

1.Order dated 10.6.2016 passed by learned Civil Judge (Junior Division)-II, Dharmashala is under challenge in this petition. As a matter of fact,

learned trial Court has dismissed an application under Order 26 Rule 9 read with Section 151 CPC filed by the petitioner-plaintiff with a prayer to

appoint local commissioner for demarcation of the land entered in Khata No. 24, Khatauni No. 51, Khasra No. 1843/298 situate in Mohal Gabli Dar,

Mauza Ghaniyara, Tehsil Dharamshala, District Kangra (hereinafter referred to as ‘suit land’ in short) vide the order under challenge in this

petition. The suit has been filed for permanent prohibitory injunction restraining the respondent-defendant from causing interference in the suit land in

any manner whatsoever. The respondent-defendant in the written statement has denied the claim of the plaintiff being wrong. He has also placed on

record the report qua the demarcation conducted on 20.12.2010 and on the basis thereof it is claimed that he has nothing to do with the suit land nor

has caused any interference therein. Replication also stands filed. On the completion of the pleadings, issues were framed and the plaintiff evidence

has also been recorded partly. The suit presently is at the stage of recording plaintiff’s remaining evidence. It is at this stage the application under

Order 26 Rule 9 CPC came to be filed for appointment of local commissioner on the grounds, inter alia, that the respondent-defendant has made

encroachment upon the suit land and hence is in unauthorized and illegal possession thereof.

The application was, however, resisted and contested on the grounds, inter-alia, that the report qua the demarcation of the land conducted

previously on 20.12.2010 is already produced on record and until and unless the said report is quashed and set aside by the competent Authority, no

fresh demarcation of the land can be ordered.

Admittedly, the suit land was demarcated on 20.12.2010 and the report has been placed on record by the defendant. There is again no controversy

so as to the demarcation so conducted was even acceptable to the plaintiff also. However, now he claims that the demarcation so conducted was not

in accordance with the instructions issued by the Financial Commissioner. It is for this reason the plaintiff has filed an application under Section 107 of

the Land Revenue Act registered as case No. 137/12 before Assistant Collector Ist Grade, Dharamshala. The local commissioner has been appointed

by the Assistant Collector Ist Grade to conduct the demarcation, who has submitted his report that there being difference of Karukans in Aks Musabi

and Aks Momi, it is not possible to demarcate the land on the spot. Acting on the report so submitted by the local commissioner, the Assistant

Collector vide order dated 6.3.2012 has observed that in view of such difference in Karukans the matter need to be examined and necessary

correction ordered by the competent court. These documents produced during the course of arguments have been perused and returned to learned

Counsel for the petitioner-plaintiff after perusal.

Learned Counsel submits that demarcation report already placed on record by the defendant cannot be relied upon being contrary to the instructions

issued by the Financial Commissioner. Such submissions, however, are contrary to the law laid down by the Apex Court in State of H.P. vs. Mangat

Ram, AIR 1995 SC 665 and Radha Swami Satsang Veas vs. State of H.P. ILR 1984 HP 317 which has been considered by learned trial Judge while

arriving at a conclusion that unless and until the demarcation conducted earlier is not set aside by appointing another revenue official, no fresh

demarcation can be ordered. Whether the demarcation report already on record is contrary to the instructions or the law applicable has to be seen by

learned trial Court at an appropriate stage during the course of further proceedings in the suit. Therefore, at this stage when the demarcation report

dated 20.12.2010 already exist on record, no fresh demarcation of the land could have been ordered, more particularly, when the demarcation

conducted previously was acceptable to the petitioner-plaintiff also. Learned trial Court, therefore has rightly dismissed the application filed by the

petitioner with a prayer to appoint local commissioner for demarcation of the suit land. The impugned order, therefore, neither suffers from any

illegality nor infirmity. The same rather being legally sustainable is accordingly up-held and this petition dismissed.

The petitioner-plaintiff in the changed circumstances, if any, however, may approach the trial Court for appointment of the local commissioner and

in that event the prayer so made shall be considered in accordance with law and appropriate orders passed after affording the parties due opportunity

of being heard.

Pending application(s), if any, shall also stand disposed of.

An authenticated copy of this judgment be sent to learned trial Court for record and compliance.