Smt. Geeta Devi vs Devi Ram & Ors.

Sureshwar Thakur, J.

The plaintiffs' suit for rendition of a decree, for permanent prohibitory injunction besides for rendition of a decree, for possession, stood partly

decreed by the learned trial Court. In an appeal carried therefrom, before the learned First Appellate Court, by the defendants, the latter Court

allowed their appeal besides obviously reversed the trial Court's judgment and decree.

Briefly stated the facts of the case are that the plaintiff had instituted the suit for permanent prohibitory injunction and for possession wherein, it

was pleaded that the plaintiff and proforma defendants were owners in possession of the land measuring 1-11 bigha, comprising khasra No.276/255,

situated in village Jandot. The defendants had no right, title or interest in the suit land. The defendants had threatened to raise construction on the suit

land. On 19.5.1993, the defendants had started digging the suit land with a purpose to raise construction thereon. Hence the suit.

The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections of maintainability, locus standi, cause

of action valuation of the suit and estoppel. On merits, it was alleged that the defendants were owners in possession of land bearing Khasra

No.378/260, situated adjoining the suit land. The defendants had constructed the house only on their own land. It was denied that the defendants had

started digging the suit land with a purpose to raise construction on the same. In nutshell the defendants refuted the entire case of the plaintiff and they

had prayed for dismissal of the suit.

The plaintiffs filed replication to the written statement of the defendant(s), wherein, she denied the contents of the written statement and re-

affirmed and re-asserted the averments, made in the plaint.

On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-

Whether the plaintiff is owner in possession of the suit land along with proforma defendant, as alleged?OPP.

Whether the plaintiff is entitled to the relief of permanent injunction, as prayed? OPP.

Whether the plaintiff is entitled for possession of the suit land in alternative?OPP.

Whether the suit is not maintainable? OPD.

Whether the plaintiff has no locus standi to file the suit? OPD

Whether the plaintiff has no cause of action to file the suit? OPD.

Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD.

Whether the plaintiff is estopped to file the suit due to his own act and conduct?OPD.

Relief.

On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court partly decreed the suit of the plaintiff/appellant herein. In

an appeal, preferred therefrom, by the defendants/respondents herein, before, the learned First Appellate Court, the latter Court allowed the appeal,

and, reversed the findings recorded by the learned trial Court.

Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein she assails the findings, recorded in

its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, admitted the appeal

instituted, by the plaintiff/appellant, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted,

substantial question of law:-

Whether the rejection of the application filed by the plaintiff before the lower Appellate Court under Order 26, Rule 10(2) for examination of the

local commissioner as witness is wrong, illegal and the impugned judgment and decree deserves to be set aside on this very ground alone?

Substantial question of Law No.1:

The learned trial judge, had, partly decreed, the plaintiff's suit, and, in his rendering the apposite decree, he relied, upon, the apt demarcation report,

borne in Ex.PW2/A, wherewith tatima borne in Ex.PW2/B, stood, hence, appended. However, in an appeal, carried therefrom, by the aggrieved

defendants, before the learned first appellate Court, the latter Court, upon, an application moved therebefore, by the defendants, AND, cast under the

provisions of Order 26, Rule 9 of the CPC, proceeded to hence appoint, Tehsildar, Ghumarwin, (i) to determine the boundaries of the adjoining estates

of the contesting parties, (ii) and, upon the aforesaid, executing the apposite commission, he submitted his report, before the learned Appellate Court,

whereon, the latter Court, hence, placed reliance, and, reversed the findings recorded, by the learned trial Court. The learned Appellate Court also by

recording a detailed disaffirmative order, upon, CMP No. 5 of 2006, carrying the apposite objections, preferred therebefore by the plaintiff, vis-a-vis,

the report of the demarcating officer, besides also, upon an application preferred, before it, by the plaintiff under Order 26, Rule 10(2) of the CPC, for,

calling the Local Commissioner as a witness, hence, dismissed both the apposite objection, AND, rejected the plaintiff's prayer, for, summoning the

Local Commissioner, as a witness, (iii) by making a firm conclusion, that, the report furnished by the Tehsildar, Ghumarwin, being a sequel, of, his

meteing absolute adherence, vis-a-vis the apt procedure prescribed in the H.P. Land Records Manual, (iv) adherence whereof, is, ad nauseum

delineated therein, to be comprised, in the apt ascertainments of pacca points, by the demarcating officer, bearing evident consonance, with, the apt

musabi, carried thereat by him. The learned counsel appearing for the appellant/plaintiff, has submitted, before, this Court that (v) in the learned first

Appellate Court, hence, rejecting the application preferred thereat, by the plaintiff, AND, cast under the provisions of Order 26, Rule 10(2) of the

CPC, it has thereupon infracted the mandate borne therein, infraction of mandate whereof, hence, has caused great prejudice, to, the right(s) of the

plaintiff/appellant herein. The validity of the aforesaid espousal, made ,by the counsel for the aggrieved plaintiff, before this Court, qua hence, the

mandate of Order 26, Rule 10(2) of the CPC, provisions whereof stand extracted hereinafter, being not meted the apt fullest adherence, is to be hence

gauged besides fathomed, by making an incisive, and, circumspect reading thereof:-

“10. Procedure of Commissioner.- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the

evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the court.

(2) Report and depositions to be evidence in suitâ€"The report of the Commissioner and the evidence taken by him (but not the evidence without the

report) shall be evidence in the suit and shall form part of the record; but the court or, with the permission of the court, any of the parties to the suit

may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or

as to the manner in which he has made the investigation.

(3) Commissioner may be examined in personâ€"Where the court is for any reason dissatisfied with the proceedings of the Commissioner, it may

direct such further inquiry to be made as it shall think fit. A specific mandate is enshrined therein, of, the report furnished, by the local commissioner

concerned, and, the evidence taken by him, being construable to be evidence, hence, in the apposite lis, and, it also forming part of the record, (i) yet

the court also being conferred with a discretion, given the occurrence therein, of, coinage “mayâ€, to, on any of the litigant, making, a scribed

motion before it, for personally examining, the local Commissioner, vis-a-vis, the recitals occurring, in his report, deny or grant, the apposite

permission,besides for its being facilitated, to, ascertain, vis-a-vis, the validity(ies) or truth thereof. However, a perusal of the demarcation report,

submitted by the Tehsildar, Ghumarwin, bespeaks of his prior, to hence demarcating, the, contiguous estates of the litigating parties, his ascertaining,

the relevant pacca points, and, qua ascertainments of pacca points, by the Local Commissioner, the litigating parties also purveying their written

consent. He, in his report, unravels, qua his carrying, (a) detailed demarcation, of, various apt khasra numbers, whereat, at some places, a difference

of ½ Karam being found, yet it being ignored. There, also, occurs a candid, and, clear recital, in, the report of the demarcating officer qua the

plaintiff along with her son, being present, on the spot, and, hers, on conclusion of the demarcation, without making any objections qua it, rather leaving

the spot. A close and circumspect perusal of the demarcation report, reveals, of the local commissioner concerned, hence, carrying the demarcation,

of, the contiguous estates, of, the litigating parties, hence, in accordance with law. Consequently, in the learned Appellate Court, hence, dismissing, the

objection preferred therebefore, by the plaintiff, vis-a-vis, the demarcation report, as also, in its dismissing the application preferred thereat, by her,

under Order 26, Rule 10(2) of the CPC, has hence not committed any legal error. The reason being (a) the drawing, of the apt subjective satisfaction

being well merited, arising, from, the rejection, of, the apt objections as reared therebefore by the objector/plaintiff, being founded upon, sound, good

and tangible reason(s), (b) thereupon with non surfacing, of, any iota of evidence, vis-a-vis, hence for eroding, the apt validity thereof or truth thereof;

(c) for emergence whereof, alone the exercising, of, the apt discretion, for summoning the Local Commissioner concerned, was imperative, (d)

besides, rather when the summoning, of, the local commissioner, would be facilitative of his being meted suggestion(s), all, bearing compatibility with

the apt objections, objections whereof rather stood tenably dismissed, (e) thereupon, the summoning, of, the Local Commissioner, was, unnecessary,

AND, also redundant.

Even, though, at this stage, the learned counsel appearing, for the plaintiff/appellant, has contended with vigour, that, with a clear pronouncement

hence occurring, in, Section 107 of the H.P. Land Revenue Act, provisions whereof stand extracted hereinafter, (i) AND, with the Revenue Officer

concerned,on anvil thereof, hence preparing the demarcation report, borne in Ex.PW2/A, whereto apt tatima borne in Ex.PW1/B stood appended,

hence, absolute reliance thereupon, rather, was placeable, (ii) hence, he contends that the appointment, of, a local commissioner, by the learned First

Appellate Court, was outside, the statutory domain, of Section 107, of, the H.P. Land Revenue Act, provisions whereof read as under:-

“107. Power of Revenue Officers to define boundaries. - (1) A Revenue Officer may, for the purpose of framing any record or making any

assessment under this Act or on the application of any person interested, define the limits of any estate, or of any holding, field or other portion of an

estate, and may, for the purpose of indicating those limits, require survey marks to be erected or repaired.

(2) In defining the limits of any land under sub-section (1) the Revenue Officer may, cause survey-marks to be erected on any boundary already

determined by, or by order of any Court, Revenue Officer or Forest Settlement Officer, or restore any survey-marks already set up by, or by order of

any Court or any such Officer.†In making the aforesaid submission, he has also placed reliance, upon, a decision of this Court, rendered, in a case

titled as Ram Lal vs. Krishan Dutt, reported in Latest HLJ 2012 (HP) 633, the relevant paragraph No.5 whereof stand extracted hereinafter:-

“5. The issues were framed and the parties led their evidence. When the suit was listed for final arguments, an application under Order 26, Rule 9

of the Code of Civil Procedure was moved by the petitioner/defendant to appoint the Local Commissioner on the ground that the demarcation was not

conducted by the Revenue Officer in accordance with the instructions of the Financial Commissioner and also that his application was rejected by the

Assistant Collector 1st Grade for re-demarcation. Learned counsel for the petitioner also submitted that there was a boundary dispute, as such, the

demarcation was required to be got conducted by the Revenue Expert, thus the impugned order is wrong. A perusal of the pleadings of the parties

does not show any-where that the petitioner herein had raised boundary dispute. The respondent/plaintiff alleged encroachment on the basis of the

demarcation report of the Assistant Collector 1st Grade, who had already conducted the demarcation in the presence of the parties. Such a

demarcation under Section 107(1) of the H.P. Land Revenue Act, 1954, is quasi-judicial in nature and, statutory function, therefore, even the Collector

in his supervisory jurisdiction under Section 12 of the Act can also not set aside the demarcation given by the Assistant Collector, but however, if after

notice to the affected parties, the Collector is satisfied that the order requires modification or reversal, he is to report the case to the Financial

Commissioner, who alone is empowered to pass such order as he think fit under Section 17(4) of the Act. Therefore, the demarcation already given

by the Assistant Collector earlier in the presence of the parties which was not assailed cannot be upset by a Local Commissioner.†However, this

Court, is in, total disagreement with the aforesaid submission also the aforesaid judgment relied, upon, by the learned counsel for the plaintiff, is not

applicable vis-a-vis the facts of the case at hand, (i) the reason being, the verdict supra recorded in Ram Lal's case (supra), being per incuriam vis-a-

vis, the, provisions borne, in, Section 171 of the H.P. Land Revenue Act, provisions whereof, ad nauseam, hence, delineate(s) the arenas and fronts,

whereupon, the Civil Courts, are, barred to exercise jurisdiction, the apt clause (xix) whereof, stands extracted hereinafter:-

“171. Exclusion of jurisdiction of civil Courts in matters within the jurisdiction of Revenue Officers.- Except and otherwise provided by this Act-

…........................ (xix) any question connected with or arising out of or relating to any proceedings for the determination of boundaries of estates

subject to river action under sections 108, 109, 110 and 111 respectively of Chapter VII;†whereto an allusion is imperative. The hereinabove

extracted, apt appertaining hereat clause, squarely oust(s) the jurisdiction, of, Civil Courts, vis-a-vis “any question connected with or arising out of

or relating to any proceedings for the determination of boundaries of estates, subject to river action, under, sections 108, 109, 110 and 111â€.

However, yet, the provisions, borne in Section 107 of the H.P. Land Reenue Act, do not occur therein, whereas, if the legislative intent, was, also to

include, them, within, clause (xix) to Section 171 of the H.P. Land Revenue Act, its occurrence therein was imperative, alongwith, all succeeding

therewith provisions, borne, in Chapter-VIII of the Act. Contrarily, hence the specific exclusion, of, section 107, of, the Act, in clause (xix) to Section

171, of, the Act, gears, an inference of the apt exclusionary mandate embodied therein, not, being extendable, vis-a-vis, the determination, of

boundaries by the Revenue Officer concerned, on an apt application preferred, by the litigant concerned, under Section 107 of the H.P. Land Revenue

Act. Consequently, the Civil Court concerned, enjoys, the apt jurisdiction, upon, a motion being made before it, AND, cast under the provisions of

Order 26, Rule 9 of the CPC, to hence appoint a Local Commissioner, for determining, the boundaries of the contiguous estates, of the litigating

parties, AND, as a natural corollary thereof, the civil court, is also bestowed, with an apposite jurisdiction, to, for valid reasons, hence impute sanctity

thereto, AND, to also benumb the demarcation report prepared by the revenue officer, exercising power under Section 107 of the Act, given the

predominant jurisdiction, for, testing the validity of, one or the other squarely vesting, in a civil Court. In sequel, the aforesaid submission addressed

before this Court, by, the learned counsel appearing for the plaintiff/appellant, is rejected.

The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court being based upon a proper and mature

appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material

from consideration. Substantial questions of law No.1 is answered in favour of the respondent, and, against the appellant.

In view of above discussion, there is no merit in the instant appeal and it is dismissed accordingly. Consequently, the judgment and decree rendered

by the learned First Appellate Court in Civil Appeal No. 123/13 of 2004/2000 is affirmed and maintained. Decree sheet be prepared accordingly. All

pending applications also stand disposed of. No order as to costs.