Himachal Pradesh High Court
Sant Ram And Anr vs Nikra Ram on 1 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 73 of 2008.
Reserved on : 11/7/2016
.
Date of Decision: 1.8. 2016
______________________________ _________________________
[
Sant Ram and Anr. .........Appellants.
Versus
Nikra Ram ..........Respondent.
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
rt
For the appellants: Mr. Malay Kaushal, Advocate vice
counsel.
For the respondent: Mr. Rajnish K. Lall, Advocate.
_________________________________________________________
Sandeep Sharma, J.
Present regular second appeal filed under Section 100 of CPC is directed against the judgment and decree dated 23.11.2006, passed by the learned District Judge, Bilaspur, HP, in Civil Appeal No. 78 of 2003, reversing the judgment and decree dated 28.6.2003, passed by learned Sub Judge, Ist Class, Bilaspur, H.P. in Civil Suit No. 3/1 of 2000.
Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:56:00 :::HCHP -2-2. The key facts necessary for adjudication of the present appeal are that the respondent/plaintiff filed suit for .
permanent prohibitory and mandatory injunction restraining the appellants/defendants from interfering or raising any construction over the suit land comprising of Khata Khatoni No. 4/6 min, Khasra No. 193 land measuring 5.14 Bighas of situated in village Delag, Pargna and Tehsil Sadar, District Bilaspur, HP, in any manner by themselves or through their family rt members or in alternative if the appellants/defendants succeed in raising construction, to pass decree for demolishing the structure, in favour of the plaintiff and possession be restored to its original plaintiff-
Nikra Ram.
3. Respondent/plaintiff, in the averments made in the plaint, claimed himself to be joint owner in possession of land comprised in Khata Khatauni No. 4/6 min Khasra No. 193, measuring 5.14 bighas, situated in village Delag, Pargna and Tehsil Sadar, District Bilaspur, HP along with other co-
sharers. He also averred that defendants, who are also resident of the same village, have no right title over the suit ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP -3- land in any manner. As per plaintiff, the defendants, who are forceful persons intending to raise construction over the .
suit land by grabbing the land of the plaintiff and they have already collected the construction material near the suit land. Plaintiff averred that despite several requests, defendants are adamant to raise construction over the suit of land and on the basis of aforesaid submissions having been made in the plaint, plaintiff claimed for decree of permanent prohibitory rt injunction restraining the defendants from interfering and raising construction over the suit land. Plaintiff also stated that cause of action arose to him on 5th January, 2000, when the defendants forcefully tried to raise construction over the suit land despite repeated requests of the plaintiff.
4. Defendants by way of written statement refuted all the averments contained in the plaint filed by the plaintiff and stated that they are not raising any construction over the suit land as alleged by the plaintiff. Defendants claimed themselves to be owner in possession of the adjoining land comprising of Khasra No. 191, where they raised boundary ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP -4- walls. Defendants also stated that land was demarcated by the revenue officials. Defendants categorically stated that .
neither they raised any construction nor they have any intention to raise the same over the suit land and alleged that plaintiff has filed the suit with malafide intention solely with a view to harass them unnecessarily. If the written of statement filed by the defendants is read in its totality, it emerge that defendants denied the claim of the plaintiff in toto. They rt specifically denied that no construction, whatsoever, has been raised upon the land of the plaintiff, plaintiff filed replication to the written statement filed by the defendant, wherein while denying the contents of the written statement, plaintiff reasserted averments contained in the plaint. Learned trial Court on the basis of pleadings available on record framed following issues:-
1. Whether the plaintiff is entitled for permanent prohibitory injunction? OPP.
2. Whether the plaintiff is entitled for the mandatory injunction as prayed for? OPP
3. Whether the suit was not maintainable, as alleged? OPD.
4. Whether the plaintiff has no legally enforceable cause of action, as alleged? OPD.
5. Relief.::: Downloaded on - 15/04/2017 20:56:00 :::HCHP -5-
5. On the basis of evidence available on record, learned trial Court decided issue Nos. 1 and 2 against the .
plaintiff, whereas issue Nos. 3 and 4 were decided in favour of the defendants. Learned trial Court vide judgment and decree dated 28.6.2003 dismissed the suit of the plaintiff and held that plaintiff is not entitled for permanent prohibitory of and mandatory injunction.
6. Feeling aggrieved and dis-satisfied, plaintiff filed rt appeal under Section 96 CPC read with Section 21 of H.P. Courts Act, against the judgment and decree dated 28.6.2003, passed by learned trial Court, which was registered as Civil Appeal No. 78 of 2003. Learned District Judge vide judgment dated 23.11.2006 accepted the appeal preferred by the plaintiff and concluded that plaintiff is joint owner as well as co-sharer with Garja Ram and is in possession of the suit land except one biswa of land as shown in Tatima Ext.RW1/B comprising Khasra No. 193/1, which has been encroached upon by the defendants and is being used as Sehan (courtyard) and Haudi. The learned appellate Court while allowing the appeal of the plaintiff ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP -6- also restrained the defendants from causing any interference in the ownership and possession of the plaintiff except Khasra .
No.193/1, measuring one biswa part of the suit land, which has been encroached upon by the defendants and also decree for possession of one biswa of land, as shown in Tatima Ext.RW1/B and report of Local Commissioner of Ext.RW1/A.
7. Being aggrieved and dis-satisfied with the rt judgment and decree dated 23.11.2006 passed by the learned appellate Court, present appellants-defendants in Civil Appeal, filed the instant regular second appeal under Section 100 CPC before this Court. This Court vide order dated 28.2.2008 admitted the instant appeal on the following substantial question of law:-
"3. Whether the ld. first appellate Court is right in allowing the application under Order 26 Rule 9 of CPC at the appellate Stage?"
8. Mr. Malay Kaushal, Advocate vice counsel appearing on behalf of appellants-defendants vehemently argued that impugned judgment and decree passed by the learned first appellate Court is not sustainable in the eye of ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP -7- law as the same is not based upon the correct appreciation of evidence available on record. He contended that bare .
perusal of the judgment and decree passed by the learned first appellate Court suggests that same has been passed in whimsical grounds merely on conjectures and surmises, and as such, same deserves to be quashed and set-aside. It is of also contended on behalf of the appellants-defendants that respondent-plaintiff could not establish his case for rt permanent prohibitory and mandatory injunction since there was nothing in the pleadings to suggest that at any point of time, defendants/appellants have encroached upon the land of the plaintiff and raised construction over the same.
Hence, finding of the learned Appellate Court holding the respondent-plaintiff entitled for permanent prohibitory and mandatory injunction is totally against the facts of the case as well as law and as such, is not sustainable in eye of law.
During arguments having been made by Mr. Kaushal, he invited attention of this Court to the evidence available made available on record to demonstrate that no cogent and convincing evidence was led on record by the ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP -8- respondent-plaintiff, which could make him entitled to the decree of permanent prohibitory and mandatory injunction.
.
He also stated that respondent-plaintiff himself admitted in his cross-examination that land of appellants-defendants is adjacent to his land but he showed ignorance about his khasra numbers, which are owned by defendant, meaning of thereby, he was unable to point out that which khasra numbers have been encroached by the defendants. It is rt also contended on behalf of the appellants-defendants that learned appellate Court mis-construed and mis-read the contents of tatima Ext.RW1/B and, as such, judgment passed by the learned first appellate Court cannot be allowed to be sustained. Mr. Kaushal forcefully contended that learned first appellate Court fell in grave error in as much as allowing application under Order 26 Rule 9 CPC at the appellate Stage that too despite being specifically objected by the appellants-defendants. As per Mr. Kaushal, by allowing application under Order 26 Rule 9 CPC, learned first appellate Court afforded an opportunity to the plaintiff to create evidence in his favour, which caused ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP -9- great prejudice to the appellants-defendants and, as such, judgment passed by the learned first appellate court, .
deserves to be quashed and set-aside.
9. On the other hand, Mr. Rajnish K. Lall, learned counsel, appearing for the respondent/plaintiff supported the judgment passed by the learned first appellate Court of and stated that no interference, whatsoever, of this Court, is warranted in the present facts and circumstances of the rt case, where it stands proved on record that same is based upon the correct appreciation of the evidence available on record. He also contended that learned trial Court while dismissing the suit filed by the respondent-plaintiff miserably failed to appreciate the evidence adduced on record by them and wrongly concluded that the tatima filed by the plaintiff does not show that land measuring one biswa is in possession of the defendant. Similarly, statements made by the plaintiff witnesses were not dealt with in its right perspective while passing the judgment and decree dated 28.6.2003. During arguments having been made by Mr. Lall, he made this court to travel through the oral as well as ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 10 -
documentary evidence made available on record by the plaintiff to substantiate his claim put forth in the plaint filed in .
the civil suit that plaintiff is the owner in possession of the suit land along with his brother and defendant has no right, title or interest over the same. He stated that it had categorically come in the statement of PW1 that the defendants have of uprooted the boundary marks and as such plaintiff had taken demarcation of the land, wherein defendants were rt found to have encroached upon one biswa of land and as such, learned court below erred in not granting the decree of permanent prohibitory injunction restraining the defendants from interfering in the suit land. Mr. Lal further stated that learned trial Court similarly ignored the categorical statement given by PW 2 Hariman Kanungo, while proving the tatima Ext.PW2/A, that on Khasra No. 193/1, measuring one biswa land was found in possession of the defendant as courtyard (Sehan). Mr. Lall forcefully contended that though plaintiff had led cogent and convincing evidence to prove the contents of the plaint but now on the top of it, Local Commissioner appointed by the ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 11 -
ld. first appellate court submitted his report Ext.RW1/A and Tatima Ext.RW1/B, wherein he has stated that defendant .
Sant Ram has encroached upon one biswa of land, which clearly suggests that learned trial Court while dismissing the suit of the plaintiff miserably failed to place reliance on Ext.PW2/A tatima filed by the plaintiff at the time of filing the of suit to demonstrate that land measuring one biswa is in possession of the defendants. Mr. Lall also contended that rt record nowhere, suggests that defendants ever objected to appointment of Local Commissioner in terms of order 26 Rule 9 CPC by the learned appellate Court and, as such, defendants cannot be allowed to raise plea of appointment of Commissioner under Order 26 Rule 9 at the stage of second appeal. He also invited attention of the Court to the objections filed by the defendants to the report filed by the Local Commissioner to demonstrate that no objection, whatsoever, was ever taken by the defendants that demarcation was not carried out in accordance with law and as such, present appeal deserves to be dismissed being devoid of any merit.
::: Downloaded on - 15/04/2017 20:56:00 :::HCHP- 12 -
10. Since, instant appeal has been admitted on the following substantial question of law, this Court while .
adverting to the grounds taken in the appeal as well as arguments advanced by both the parties at the time of hearing, needs to ascertain whether learned first appellate Court was well within its right/jurisdiction to order for of appointment of Local Commissioner in terms of Order 26 Rule9 CPC during the pendency of the first Appeal or Not?
11. rt Careful perusal of the pleadings available on record depicts that plaintiff claiming himself to be joint owner in possession of the suit land filed suit for permanent prohibitory and mandatory injunction against the defendants by stating that defendants have no right or interest over the suit land but they are trying to raise construction over the suit land by collecting construction material and as such, prayed decree for restraining defendants from carrying out construction, if any, on the suit land. Record further reveals that defendants denied the claim of the plaintiff in toto and stated that they are in possession of the adjoining land comprising khasra No. 191, wherein they have raised ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 13 -
boundary wall that too after demarcation by the revenue officer.
.
12. To prove its case, plaintiff appeared as PW1 and stated that disputed land is measuring 5-14 bighas and he is owner in possession of the land along with brothers, whereas defendants have no right over the said land. He of categorically stated that defendants uprooted the boundary marks and despite repeated requests having been made by rt him, defendants collected construction material on the site and as such, he was compelled to file the suit. He categorically stated in his examination-in-chief that he got the joint demarcation done of the suit land, wherein defendants were found in possession of one biswa of land.
Though in his cross-examination, he admitted that defendants are owner of the land adjoining to it but he was unable to disclose the khasra numbers of land owned and possessed by the defendants. In his cross-examination, he denied the suggestion that defendants had not accepted the demarcation carried out at his behest. Learned trial Court while examining the statement of PW1 concluded that ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 14 -
plaintiff while stating that defendants have uprooted the boundary marks, nowhere stated that he collected .
construction material on the spot. Similarly, learned trial Court also took note of the omission made on behalf of the plaintiff in his statement that how and in what manner, defendants interfered in the suit land and as such, learned of trial Court concluded that there is contradiction in the statement of plaintiff vis-à-vis pleadings of the plaint.
13. rt PW2 Hariman, Kannungo, stated that he prepared tatima Ext.PW2/A of Khasra No. 193/1 and had found defendant in possession of the land. He categorically stated that he had issued tatima Ext.PW2/A however, in his cross-examination stated that no construction whatsoever, was found on khasra No. 193/1 and there was Sehan(Courtyard). He also admitted that tatima was prepared on 19th July, 2000 and he had given demarcation on verification and then gave the tatima. It appears that learned trial Court after perusing the demarcation report concluded that actual demarcation was given on 23rd July, 2002. PW2 also admitted that no notice was given to the ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 15 -
defendants before demarcation and no copy of tatima was given to defendants but he stated that area of courtyard .
was 22 biswansi but he was not aware the total area of Khasra No. 193. He also admitted that he does not have any record, from where he started demarcation since PW1 had stated that boundary marks of consolidation were intact.
of Learned trial Court after perusing the statement of PW2, wherein he stated that he had no record from where he had rt started demarcation, concluded that there is contradiction in the statements of PW No. 1 and PW No. 2 and as such, statement made by them cannot be relied upon, whereas defendant No.1 stated that he owns the adjacent land to the land of plaintiff but denied that he ever raised any construction of house on the land of the plaintiff i.e. Sehan as per demarcation. He stated that only Patwari had come on the site for demarcation but he also stated that he has not encroached upon any portion of the land of the plaintiff and boundary marks were fixed from time to time by the ancestors and he was in possession of the land for last 25-26 years back. In his cross-examination, he admitted that ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 16 -
patwari had come on the site on 19.7.2002 and measurement was done in his presence, however, he denied .
that on 25.7.2002, Kanungo had come on the site for verification but very importantly, he stated that he was ready to give one biswa of land in exchange to the plaintiff for adjoining land.
of
14. Careful perusal of the statement of DW1 corroborates the statement of PW 1and PW2 to certain rt extent, where they had stated that on 19.7.2002, patwari had come on the spot and measurement was done in the presence of defendants. Though, defendant No. 1 has denied that on 25.7.2000, Kanungo had come on the site for verification but fact remains that on 19.72002, patwari had demarcated the land in the presence of defendants.
Similarly, statement given by defendant that he is ready and willing to give one biswa land in exchange to the plaintiff is also of great significance, which really points towards the fact that some land/portion of the plaintiff has been encroached by the defendants. That is why, he made an offer to give some land in exchange. DW2 Sukh Ram also ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 17 -
stated that the land of the parties is adjoining and he also admitted that defendant Sant Ram constructed the house .
but on his own land, however, he could not state anything qua the Khasra number on which house and Sehan of the defendant is situated. Similarly, he could not state anything with regard to khasra Number on which, boundary mark, if of any, was fixed. Plaintiff made available on record Ext.PW2/A Sajra Tatima, to demonstrate that there is gair mumkin sehan rt in khasra No. 193. Though, perusal of aforesaid document suggests that it is gair mumkin sehan in Khasra No. 193 but there is no mention with regard to possession, if any, of defendant. But fact remains that learned trial Court rejected Ext.PW2/A solely on the ground that tatima of demarcation filed by the plaintiff was never verified by kanungo as per jamabandi for the year, 1994-95 and as such, same could not be given any effect to, whereas, learned trial Court took cognizance of Ext.DA, wherein defendant Sant Ram has been shown to be joint owner in possession of Khasra No.
191. Learned trial Court while rejecting the suit of the plaintiff concluded that he has not been able ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 18 -
to prove on record that defendant uprooted the boundary marks because PW2 in his statement categorically stated .
that boundary marks were intact on spot. But it appears that learned trial Court while returning aforesaid finding failed to appreciate that PW2 had stated that he had verified tatima Ext.PW2/A of khasra No. 193-1 but in his cross-examination, he of admitted that on spot, area of the sehan was 22 biswansi and khasra No. 193/1 was found in the possession of defendant.
rtSimilarly, it is also undisputed that defendant himself admitted that demarcation was carried on the spot by Patwari and, as such, in the absence of any tatima or report placed on record by the defendant, learned trial Court should have lent some credence to the Ext.PW2/A sajra tatima prepared on the basis of demarcation verified by PW2 Kanungo. Since factum of demarcation, if any, as put forth by the plaintiff, was admitted by the defendant, learned trial Court had no option but to ascertain the correctness of the demarcation report by ascertaining from the records whether demarcation was carried out in accordance with law or not. But careful reading of the ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 19 -
judgment rendered by the learned trial Court suggests that while dismissing the suit of the plaintiff learned trial Court .
though discussed the demarcation report Ext.PW2/A but ultimately, concluded that plaintiff has not been able to prove that on which portion of suit land, defendant is in possession and has carried construction. Learned trial Court of also concluded that plaintiff has not been able to lead any evidence on record that defendant raised any construction rt on the suit land during the pendency of the suit and, as such, dismissed the suit.
15. In the present case, plaintiff filed the suit against the defendant seeking decree for permanent prohibitory injunction praying therein that defendants may be restrained from interfering or raising any construction on the suit land in any manner. Plaintiff specifically averred that he is joint owner in possession of the suit land along with one Shri Garja Ram and defendants have no right, title or interest over the suit land in any manner. Since there was a boundary dispute between the parties to the lis, courts below had two options either to rely upon the revenue record, if any, made ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 20 -
available on record by respective parties to ascertain correctness of the claim put forth on behalf of the plaintiff or .
to look into the report of demarcation, if any, carried on spot either at the behest of one party or at the request of both the parties to lis. But in the present case, as emerge from the judgment rendered by the learned trial Court, plaintiff, by of way of Ext.PW2/A i.e. sajra tatmia led evidence on record to demonstrate that defendant has encroached upon some rt portion of the land of the plaintiff. PW2, who had prepared the Tatmia Ext.PW2/A of Khasra No. 193/1 specifically stated that he had conducted demarcation of the khasrs No. 193/1 and found defendant in possession of the land. In his cross-
examination, though, he stated that there was no construction on khasra No. 193-1, but admitted that there was sehan, meaning thereby, defendant actually encroached upon some portion of land comprising khsara No. 193/1, which is admittedly owned by the plaintiff.
16. Record further reveals that learned first appellate Court realizing that it is a boundary dispute, appointed the Local Commissioner in terms of Order 26 Rule ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 21 -
9 CPC, taking cognizance of averments contained in application moved under Order 26 Rule 9 CPC by plaintiff .
praying therein appointment of Local Commissioner to demarcate the suit land and to ascertain the nature and extent of encroachment made by the defendant on the suit land. It may be pointed out at this stage that since of defendant had taken specific plea in the written statement filed before the learned trial Court that they never interfered rt in the suit land, proper course for learned appellate Court to adjudicate the matter for all times to come was to appoint Local Commissioner under Order 26 Rule 9 CPC. This Court had an occasion to peruse the record of the courts below during the hearing of the case, while scrutinizing the record of learned District Judge, this Court could lay its hand to order dated 6.1.2006, wherein learned District Judge allowed the application under Order 26 Rule 9 CPC made on behalf of the plaintiff for appointment of Local Commissioner to demarcate the land measuring 5.14 bighas comprised khasra No. 193, Khata Khatoni No. 4/6 min. This Court also perused the application filed on behalf of the plaintiff for ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 22 -
appointment of Local Commissioner under Order 26 Rule 9, wherein in para 2 it has been mentioned that "in the cross-
.
examination defendant has stated that he is ready to give the land to the plaintiff and he is prepared to give one biswa of land in exchange to the plaintiff. It is also stated that patwari Kanungo had also visited the site and prepared of tatmia." Defendant also filed reply to the application moved on behalf of the plaintiff for appointment of Local Commissioner rt but interestingly, no legal objection, whatsoever, was ever taken in the reply to the application moved on behalf of the plaintiff. Careful perusal of the reply which is available at page No. 51 of the record of learned District Judge, suggests that all the averments contained in the application have been simply denied and no reason /legal ground have been raised in the reply to oppose the appointment of the Local Commissioner, meaning thereby, the defendant had no objection, whatsoever, at the time of appointment of Local Commissioner by the first appellate Court. If the reasoning given by the learned appellate Court while allowing the application moved on behalf of the ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 23 -
plaintiff under Order 26 Rule 9 CPC for appointment of Local Commissioner is seen, it clearly emerges that learned first .
appellate Court ordered for appointment of Commissioner in view of the admission made by the defendant in his cross-
examination, wherein he stated that he is ready to give land in exchange of the land of the plaintiff, which is in his of possession. Learned first appellate Court solely with a view to avoid multiplicity of litigation and to put an end to rt controversy for all times to come appointed the Local Commissioner. Learned Commissioner submitted his report Ext.RW1/A dated 29.3.2006, wherein he reported that defendant Sant Ram has encroached upon one biswa of land as shown in aks tatima, Ext.RW1/B on khasra No. 193/1.
Record further suggests that appellant-defendant being dis-
satisfied with the aforesaid report Ext.RW1/A also filed objections to the report given by the Local Commissioner.
But careful perusal of the objections filed by the defendant against the report of Local Commissioner, which is available at page 60 of the record of learned District Judge, also nowhere disclose that in what manner report Ext.RW1/A and ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 24 -
RW1/B is not correct because defendant vide para 3 of the objections simply stated that report of Local Commissioner is .
not complete as same does not disclose that how the demarcation was started and how three confirmed points were located. Defendants also stated that before confirming the confirmed points, statement of parties of were not recorded. It also emerges from the record that learned appellate Court though had allowed defendants to rt file objections to the report but had ordered that same would be decided along with the main case at the time of hearing of the appeal. As has been discussed above that by way of objections, defendant objected to the report by stating that report is not complete since it does not show that how the demarcation was started and how three permanent points were located. Interestingly, when Sant Ram appeared as DW1 during the pendency of the first appeal stated that land of both the parties is adjacent to each other and Tehsildar was appointed as Local Commissioner, who had gone to the spot. He stated that he has not demarcated khasra No. 191 and 193 and demarcated the ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 25 -
land only from one side and submitted his report to the Court. He also stated that he has not encroached upon the .
land of the plaintiff. In his cross-examination, he admitted that it almost took one and half hour for the Local Commissioner to give demarcation and thereafter his as well as statement of plaintiff Nikra Ram and Bhandari Ram were of recorded by the Local Commissioner. He also admitted that he had given statement Ext.RW1/A. He also admitted in his rt cross-examination that during demarcation, he had not filed any objections that these khasra numbers were not demarcated on the spot. Rather, in his cross-examination, he stated that if the report of Local Commissioner and tatima prepared are found to be in accordance with law and correct, then he is ready and willing to give one biswa in exchange. Similarly, Dilip Singh AW2 also stated that he was present at the time of demarcation of disputed khasras. But as per him, no demarcation of disputed khasra numbers was conducted by the Local Commissioner. In his cross-
examination, he also categorically admitted that Niab Tehsildar started giving demarcation from a point, which was ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 26 -
not objected by the parties and after the completion of demarcation, statements of parties were recorded to which .
both the parties admitted to be correct. Similarly, Niab Tehsildar who gave the demarcation appeared as RW1 stated that pursuant to order dated 29.3.2006, he had taken the demarcation of the land along with kanungo and of patwari and demarcated khasra Numbers 191 and 193. He stated that during demarcation, he found defendant namely rt Sant Ram and Bhandari Ram in possession of the khasra No. 193 owned by Nikra Ram. He also stated that the tatima and report Ext.RW1/A and Akas Tatima Momi Ext.RW1/B are correct as per demarcation. He categorically stated in his cross-examination that he started the demarcation from pucca point, which was agreed by the parties and before demarcating the entire land, permanent points were ascertained and same were demarcated. Demarcation was given on the basis of Aks Musabi. He denied the suggestion that on the direction of Nikra Ram, he prepared wrong tatima and he has given demarcation of all khasra Numbers.
::: Downloaded on - 15/04/2017 20:56:00 :::HCHP- 27 -
17. Conjoint reading of the aforesaid evidence adduced on record at the stage of first appeal clearly .
suggests that demarcation given by Naib Tehsildar appointed by first appellate Court was in accordance with law and as such, there was no violation of instructions issued by the learned Financial Commissioner in this regard. Since, of as per report given by Ext.RW1/A and RW1/B, it stands established on record that defendant encroached upon the rt land of the plaintiff i.w. khasra No. 193, learned first appellate Court rightly concluded that plaintiff is joint owner as co-
sharer with Garja Ram and is in possession of the suit land except one biswa of land as shown in Ext.RW1/B khasra Number 193, which has been encroached upon by the defendant and is being used as court yard. Moreover, as clearly emerge from the statement given by defendant, where he himself stated that he is ready and willing to give land in exchange to the plaintiff, is also suggestive of the fact that defendant has encroached upon certain portion of the land of the plaintiff Nikra Ram. At this stage, it may be noticed that at trial stage, plaintiff with a view to prove his ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 28 -
case placed reliance upon the tatima Ext.PW2/A of khasra No. 193/1 prepared by Mr. Hariman Kanungo PW2 to .
demonstrate that defendant has actually encroached upon the Khasra No. 193-1 but same was not relied by the learned trial Court. But fact remains that defendant has encroached upon Khasra No. 193-1 owned by the plaintiff as has been of further proved on record on the basis of report and tatima Ext. RW1/A and Ext.RW1/B given by the Local Commissioner rt appointed by the first appellate Court.
18. It is also crystal clear from the pleadings available on record that fresh demarcation, if any, was carried out as per procedure and manner to which the parties were fully agreed. Perusal of Ext.RW1/C and Ext.AW1A clearly suggests that during demarcation defendants were found in possession of one biswa of land bearing khasra No. 193/1, which was being used as Sehan and Gair Mumkin Haudi as shown in tatima Ext.RW1/B. It also stands proved on record that demarcation has been given by the Local Commissioner on the basis of musabi, which is a basic document for giving the demarcation. Though, ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 29 -
defendant during arguments having been made before the first appellate Court tired to suggest that demarcation was .
not conducted in accordance with law and procedure laid down for giving valid and effective demarcation but it has been nowhere stated by the defendants that in what manner, procedure, if any, has been not followed at the of time of carrying out demarcation in terms of the order passed by the ld. First appellate Court. Rather, careful rt perusal of the statements recorded by Local Commissioner before conducting demarcation clearly suggests that Local Commissioner had followed instructions issued by the learned Financial Commissioner from time to time and gave the demarcation report in accordance with rules in vogue.
Hence, no fault, if any, can be found with the report i.e. Ext.RW1/A, which was carried out by the Niab Tehsildar in accordance with law.
19. As far as appointment of Commissioner by the learned first appellate Court is concerned, it would be apt to reproduce provision of order 26 Rule 9 CPC, as under:-
::: Downloaded on - 15/04/2017 20:56:00 :::HCHP- 30 -
9. Commissions to make local investigations.- In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or .
of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court:
Provided that, where the State Government has of made rules as to the persons to whom such commission shall be issued, the court shall be bound by such rules
20. rt Careful perusal of the aforesaid provision suggests that court is empowered to issue commission to make local investigation, which may be required for the purpose of adjudication of any dispute, which is left out in the evidence produced before the Court. In the present case, as has been observed, careful perusal of the pleadings on record clearly suggests that actual controversy is/was with regard to boundary dispute between the parties. Report of demarcation, if any, could be best piece of evidence along with other evidence adduced by the parties on record to settle the dispute for all times to come. In the present case, learned first appellate Court taking cognizance of the ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 31 -
averments contained in the application moved under Order 26 Rule 9 CPC filed by the plaintiff appointed Local .
Commissioner but at that stage, no objection qua the appointment of Local Commissioner was raised by the defendants, in any manner, save and except giving vague reply denying all the averments contained in the application.
of If defendants were really aggrieved by the appointment of the Local Commissioner, they could file revision against order rt passed by learned first appellate Court by invoking provisions of Section 115 CPC before appropriate Court. But fact remains that order dated 6.1.2006 passed by the learned first appellate Court was never challenged, rather, defendants subjected themselves to the demarcation proceedings conducted by the Local Commissioner appointed by the Court. Similarly, perusal of the objections filed by the defendants to the report of the Local Commissioner nowhere suggests that they ever objected to the procedure, if any, adopted by the Local Commissioner while carrying out demarcation. In objections filed by the defendants, there is no whisper, if any, with regard to violation of instructions ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 32 -
issued by the learned Financial Commissioner for carrying out demarcation and as such, they cannot be allowed to .
dispute the report of the Local Commissioner at this stage.
Very purpose of appointment of Local Commissioner under Order 26 Rule 9 CPC is to ascertain the correctness of the claim of the party that another party has encroached upon of the land and as such, courts are well within its right to appoint Local Commissioner in terms of aforesaid provision of rt law either on the application moved by any party to lis or taking suo-moto action. In the present case, as clearly emerge from the pleadings on record as well as judgment rendered by the learned trial Court that plaintiff with a view to prove his case had placed on record Ext.PW2/A i.e. tatima prepared by PW2 depicting that defendant has encroached upon the khasra No. 193 and the correctness of the same was not disputed by the defendants, however, they disputed the same on the ground that same was not verified by the kanungo on 23.7.2002 as alleged by the plaintiff.
::: Downloaded on - 15/04/2017 20:56:00 :::HCHP- 33 -
21. This Court is of the view that, learned first appellate Court rightly resorted to provisions of order 26 Rule .
9 CPC and appointed Local Commissioner to adjudicate the boundary dispute for all times to come. Otherwise also plain reading of aforesaid provision of law nowhere suggests that learned first appellate Court is/was not empowered to of appoint Local Commissioner in terms of the order 26 rule 9 CPC. This Court is of the view that there is no bar at all for the rt appellate Court to appoint Local Commissioner during the pendency of the appeal but in this case, defendants are estopped from their conduct from raising this plea because if they were really aggrieved with the appointment of Commissioner, they had an alternative remedy of assailing the same before the competent court of law by resorting to provisions of 115 CPC, which they never invoked. Similarly, objections filed by them to the report itself suggest that no procedural irregularity was committed by the Local Commissioner at the time of carrying out demarcation in terms of order passed by the first appellate Court.
::: Downloaded on - 15/04/2017 20:56:00 :::HCHP- 34 -
22. In this regard, reliance is placed on judgment rendered by the High Court of Himachal Pradesh in case .
titled Bali Ram v. Mela Ram and another, AIR 2003 Himachal Pradesh 87, which reads as follows:-
12. It may also be pointed out that the lower appellate Court appears to have given preference to the Tatimas prepared by DW-3 for of the reason that he is a Kanungo whereas PW-4 Amar Singh, who has prepared Tatimas Ex.
PWL4/A is a Patwari. This reasoning of the lower appellate Court cannot be accepted for the rt reason that when Tatimas Ex. DW-3/A was prepared by DW-3, he himself was a Patwari and not a kanungo. In view of the confusion created, it was necessary for the just and final decision of the dispute between the parties that the proper picture regarding possession over the land khasra No. 151/1 as depicted in Tatimas Ex. PW-4/A was brought on record. It is not always possible to bring the exact position of the spot on record by way of oral evidence or evidence other than the documents prepared after investigation on the spot. That, however, has not been done in this case.
13. Rule 9 of Order 26 of the Code of Civil Procedure (hereafter referred to as 'the Code'), empowers the Court to issue commission to make local investigation which may be required for the purpose of elucidating any matter in dispute. Though the object of the local investigation is not to collect evidence which can be taken in the Court, but the purpose is to obtain such evidence, which from its peculiar nature, can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court. To issue a commission under Rule 9 of Order 26 of the ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 35 -
Code, it is not necessary that either or both the parties must apply for issue of commission. The Court can issue local commission suo motu, if, in the facts and circumstances of the case, it is .
deemed necessary that a local investigation is required and is proper for the purpose of elucidating any matter in dispute. Though exercise of these powers is discretionary with the Court, but in case the local investigation is requisite and proper in the facts and circumstances of the case, it should be exercised so that a final and just decision is rendered in the of case.
14. In Braham Datt v. Prem Chand, (2000 (1) SLJ 431), this Court held as under :--
rt "14. Be it stated that whatever was within the power of the plaintiff to show that a piece of land owned by him has been encroached upon by the defendants, has been done by him. If the revenue agency has prepared a report which may not be according to rules, the case of the plaintiff could not have been thrown out simply for the lapses committed by the revenue agency/Tehsildar in carrying out the demarcation. No amount of oral evidence which could be led by the plaintiff, would have established the identity of the encroached land. To identify it the only way was to get it demarcated. The plaintiff adopted that course and nothing more could have been done by him. In case the appellate Court entertained any doubt about the correctness of the demarcation and the report, the prayer of the plaintiff for appointment of Local Commissioner for demarcation of the suit land to find out the extent of the encroachment, if any, ought to have been acceded. It is the duty of the Courts to ensure that substantial justice is delivered to the parties and that for the mistake of any Government agency in ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 36 -
demarcating the land, a party should not be deprived of the justice on merits by taking recourse to technicalities.
.
15. Once the learned District Judge had entertained doubt about the correctness of the demarcation given by the Tehsildar, he ought to have appointed a Local Commissioner to demarcate the disputed area to find out whether there was any encroachment and if so, to what extent, instead of proceeding to dismiss the suit.
of The impugned judgment and decree, therefore, cannot be sustained."
23. Reliance is also placed on judgment rendered rt by the High Court of Allahabad titled Gajraj and Ors. v.
Ramadhar and Ors., AIR 1975 Allahabad 406, para No. 4 of which is reproduced herein below:-
4. Having considered the matter I feel that Sri Chaudhary is right in his contention that there was no occasion for a remand of the suit under Order 41. Rule 23, Civil Procedure Code. It is well known that a remand of the entire suit under the said provision should be an exception and should be taken recourse to only as a last resort. In the normal course the court should decide the case on the basis of the record in existence. However, the Appellate Courts have been given power to entertain additional evidence, if necessary, or to remit an issue for enquiry and report to the trial court under Order 41, Rule 25, Civil Procedure Code. There is a long catena of case law which has laid down that the provision of remand is not to enable the parties to have a second innings with a view to fill UD the lacuna in the pleadings ::: Downloaded on - 15/04/2017 20:56:00 :::HCHP
- 37 -
or evidence. I do not propose to refer to these cases as the law is well understood in this respect. The lower appellate court in the instant case felt that without a clear demarcation of the land in .
dispute, it was not possible to give any finding on the question of title or ownership of the disputed land and, therefore, the suit was remanded to the trial court with a direction that the trial court should issue a fresh survey commission for the demarcation of the disputed land and for ascertaining the number of the plot in which ,it of fell. In my view, for that limited purpose, it was not necessary to remand the entire suit under Order 41, Rule 23, Civil Procedure Code. The said purpose could be well achieved by the issuance rt of such a commission by the lower appellate court itself. I do not agree with Sri Chaudhary that the issuance of such a commission can only be done by way of the reception of additional evidence under Order 41, Rule 27, Civil Procedure Code. In my view that provision will not be applicable to a case where the Court itself desires a local inspection of the spot to be made and in such a situation the court can act under Order 26, Rule 9, Civil Procedure Code. It cannot be denied that an appellate Court has the power to issue a commission for local inspection in the same manner in which a trial court can act under Order 26, Rule 9, Civil Procedure Code. This follows from Section 107, Civil Procedure Code and if any authority be needed, then a reference can be made to Ram Dihal Lal v. Lakhpal Lal, (AIR 1932 All 270). In my view 1971 All LJ 244 (supra) does not support the contention raised by Sri Chaudhary. It was observed there as under:--
::: Downloaded on - 15/04/2017 20:56:00 :::HCHP- 38 -
"Issue of a commission is something which is quite different from production of a document or examination of a witness. Provisions regarding issue of a commission are .
to be found in Order 26 of the Code. Rule 9 of Order 26 provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the of court."
24. Hence, in view of the aforesaid discussion as well as law referred herein above, this Court sees no illegality rt and infirmity in the order of the first appellate Court where he ordered for the appointment of Local Commissioner in terms of Order 26 Rule 9 during the pendency of the appeal before the learned first appellate Court and as such substantial question of law is answered accordingly.
25. Consequently, in view of the aforesaid discussion, judgment passed by the learned First Appellat Court below is upheld being based on correct appreciation of evidence available on record and appeal is dismissed.
1st August, 2016 (Sandeep Sharma),
manjit Judge.
::: Downloaded on - 15/04/2017 20:56:00 :::HCHP