Shri Thakur Singh And Another vs Shri Puran Sukh

Sureshwar Thakur, J.

The plaintiff’s suit for injunction, vis-à -vis, the suit property stood dismissed. The aggrieved plaintiff, hence preferred a first appeal, before the

learned District Judge, Kinnaur, Rampur at Bushahr, and, also the defendants, being aggrieved from certain adversarial findings recorded, upon,

certain issues, hence preferred cross-objection, before the learned first appellate Court. The cross-objections, preferred by the defendants, before the

learned first appellate Court, were dismissed, and, the learned first appeallate Court, rather allowed the first appeal, preferred therebefore, by the

aggrieved plaintiff. The reasons ascribed by the learned first appellate Court, are anchored, upon, the controversy(s), (i) besetting the litigating parties,

hence being amenable, for being put to quietus, only through appointment of a Local Commissioner, (ii) whereafter, for facilitating the aforesaid

resting, of, the apt controversy(s), engaging the parties at contest, an order of remand, was, made by the learned first appellate Court, to, the learned

trial Court.

The afore occurring observation(s), in, the verdict, pronounced by the learned first appellate Court, appertaining to the necessity, of, appointment, of,

a Local Commissioner, appears to be just, given its facilitating, the, resting of controversy(s), engaging the parties at contest, (i) moreso, when the

learned trial Judge, had tenably discarded the report of the Local Commissioner, as stood purveyed to him, (ii) reiteratedly, also since the dispute with

respect, to, encroachments, purportedly made, upon, the respective contiguous estate(s), of, the contesting parties, is, amenable for its apt resting , only

upon, valid demarcation, of the contigous estate, of, the litigating parties, hence being conducted by the Local Commissioner, thereupon also the afore

occurring observations, in the impugned verdict, are tenable and just.

Be that as it may, the afore occurring necessity, for appointment, of, a Local Commissioner, though, appears to be just, and, in accordance with law,

nor it suffers with any stain, of, illegality or gross impropriety. However, the appointment, of, a Local Commissioner, as directed, by the learned first

appellate Court, to be made by the learned trial Judge, upon, the latter receiving the lis, upon its remand, qua it, besides also the report, as tendered by

him, hence would also enable recording, of, clinching findings, only, vis-Ã -vis issues No. 1 and 2, issues No. 1 and 2, whereof stand extracted

hereinafter:

“1.Whether the plaintiff is entitled for decree restraining the defendants from causing any sort of interference on the suit land by way of perpetual

injunction, as alleged ?OPP

Whether the plaintiff entitled for decree of mandatory injunction against the defendants on the ground that in case Khasra No. 852 being forcibly

occupied, decree for removal ofsuch occupation be passed, as alleged ? OPP

However, issues No. 3, 4 and 5, whereon, findings stood returned by the learned trial Judge, were yet, not enjoined to be quashed and set aside, by the

learned first appellate Court. Contrarily, the learned first appellate Court, in making an order, of, wholesale remand, hence also vis-a-vis issues No.3, 4

and 5, (i) whereas, the afore issues rather not appertaining to the domain, of, an apt report of the Local Commissioner, has obviously untenably

proceeded to quash the findings, recorded thereon, (ii) and hence has committed a gross illegality, in making a wholesale remand, (iii) whereas, the

issue(s) whereon, an apt order of remand was renderable, appertain, only, vis-Ã -vis issues No. 1 and 2, (iv) issue(s) whereof tritely appertain, to, a

valid demarcation, being conducted by the Local Commissioner concerned, of, the contiguous estate(s) of the litigating parties. Consequently, the order

of wholesale remand, is, quashed and set aside, and, the instant appeal is allowed.

However, for obviating an imminent uncalled for prolongation(s), of, litigation, the learned first appellate Court, shall proceed to suo motu appoint a

Local Commisisoner, and, shall elicit from the Local Commissioner concerned, a report with respect, to, a valid demarcation conducted by him, of, the

contiguous estate(s) of the litigating parties. The apt report of the Local Commissioner, be promptly instituted before the learned First appellate Court,

and, the latter Court, shall permit the aggrieved therefrom, to submit before it, their respective objection(s) thereto (iii) objection(s) whereof, shall be

considered, and, decided, in accordance with law, by the learned first appellate Court. The fee of the Local Commissioner, shall be decided by the

learned first appellate Court, and, shall be proportionately, borne, by the litigating parties. The parties are directed to, record their respective

appearance(s), before the learned District Judge, Kinnaur at Rampur Bushahr, on 28.9.2018.

Civil appeal No. 6 of 2017, and cross-objections No. 9 of 2017, are ordered to be restored to their original number(s), and, the learned District

Judge, Kinnaur, at Rampur Bushahr, is directed to, within three months, in view of the aforesaid observations, render, a fresh decision thereon.

In view of the aforesaid observations, the instant petition is disposed of. All pending application(s), if any, are also disposed of. No costs.