Himachal Pradesh High Court
Manta Devi vs Of on 28 August, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.372 of 2008 Reserved on :10.08.2023 Date of Decision : 28.08.2023 .
Manta Devi ....Appellant Versus of Kamla Devi & Another ....Respondents Coram rt Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? Yes For the Appellant : Mr.J.L.Bhardwaj, Senior Advocatewith Ms.Dhanvanti, Advocate.
For the Respondents : Mr.Neeraj Gupta, Senior Advocate, with Mr.Pranjal Advocate.
Rakesh Kainthla, Judge.
The present appeal is directed against the judgment and decree passed by the learned Additional District Judge, Fast Track Court, Kullu, District Kullu, H.P., vide which the appeal filed by the appellant (the plaintiff before the learned Trial Court)was dismissed and ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 2 the judgment and decree passed by the learned Civil Judge, Junior Division, Manali, Camp at Kullu, District Kullu, H.P. was upheld. (Parties .
shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
of
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned rt Trial Court seeking a declaration that she is an owner in possession of the land measuring 4 Biswas bearing Khasra no.3392/559, comprised in Khatauni no.780, Khata no.610, situated in Phati Dhalpur, Kothi Maharaja, Tehsil & District Kullu, H.P. as per the copy of Jamabandi for the year 2001-2002,(hereinafter referred to as the "suit land"). The Tatima drawn by the Revenue Authorities is contrary to the factual position on the spot, the length on the western side of the suit land is 10 Karam +6 Karam and the same is wrongly recorded as 6 Karam +3 Karam. Similarly, the land on the ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 3 Eastern side is 12 Karam long and it is wrongly recorded as 9 Karam. A decree for possession of the land owned by the plaintiff .
depicted in the site plan by the letters EBCF, encroached by the defendant was sought by demolition of the construction raised by the defendant. It was pleaded that the plaintiff is of the recorded owner in possession of the suit land. The suit land was part of Khasra no.559, rt measuring 2-11-0 bigha. It was jointly owned and possessed by Sh. Narayan Dass Chela Kali Dass to the extent of 47/51 share equivalent to 2-7-0 bighas and Ram Krishan to the extent of 4/51 share equivalent to 0-4-0 bigha. A private partition took between Narayan Dass and Ram Krishan in the year 1989. Khasra no.559/1, measuring 4 biswa fell in the share of Ram Kishan; while Khasra no.559/2, measuring 2-7-0 bigha was allotted to Narayan Dass. Mutation No.3055 was attested based on the partition.
Narayan Dass divided Khasra no.559/2 into 10 plots and provided 2 paths for the common use ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 4 and enjoyment of the purchasers. He sold 4 Biswas of land comprised in Khasra no.559/2/10, to Chetan Singh. Mutation no.3111 was sanctioned .
on 28.01.1989. However, Tatima was not correctly prepared. The Northern-Eastern plot, measuring 4 biswa was allotted Shikmi Khasra no.559/2/1 in the Tatima, which was subsequently changed to of Khasra no.3392/559. The length of the side of the aforesaid plot was not correctly entered.
rt The Western side of the plot was 6 Karam + 10 Karam but it was wrongly recoded as 6 Karam + 3 Karam. The Eastern side of the land is 12 Karam but it was wrongly recorded as 9 Karam. Narayan Dass sold Khasra no.559/2/1 to the husband of the plaintiff. The total area sold by Narayan Dass and purchased by the husband of the plaintiff was 4 biswa. The possession of 4 Biswas was also delivered on the spot. The dimensions were not correctly shown in the mutation. The husband of the plaintiff and the plaintiff orally exchanged the land on 16.08.1992. He gave 4 biswa to the plaintiff ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 5 and the plaintiff gave Khasra no.705 to him.
Possession was also delivered to the parties and mutation No.3586 was sanctioned on 24.08.1992.
.
The plaintiff became owner in possession of 4biswa of land comprised in Khasra no.559/2/1 (new Khasra no.1392/559). The plaintiff constructed a cemented building on a portion of of the land and the rest of the land was kept vacant. Defendants No.1 and 2 jointly purchased rt the adjoining plots bearing Khasra no.559/2/2 measuring 5 biswa from Narayan Dass in the year 1989. They constructed a building. Defendants no.1 and 2 started interfering with the vacant portion of the suit land. The plaintiff filed a Civil Suit for an injunction against them, which was decreed. The defendants encroached upon the portion of the suit land by constructing a boundary wall. The plaintiff filed an execution petition against the defendants. The defendants filed objections claiming that there was no vacant land. The plaintiff obtained the revenue record and found that the length of the Eastern ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 6 boundary was wrongly depicted. The plaintiff filed an application for demarcation. The Field Kanungo demarcated the land and confirmed the .
mistake in the record. The defendants encroached upon the suit land by extending the Northern boundary of their plot. Their encroachment is depicted by the letters EBCF in of the map prepared by the plaintiff. The plaintiff requested the defendants to remove the rt encroachment but in vain. Hence, the suit was filed to seek the relief mentioned above.
3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and locus standi, the plaintiff being estopped by her act and conduct to file the present suit, improper valuation and the plaintiff having not come to the Court with clean hands. The contents of the plaint were admitted to the extent of the revenue record and sale by Narayan Dass. It was asserted that a common path was provided between various plots for common enjoyment. Correct ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 7 dimensions were recorded in the mutation. There is no infirmity in the revenue record. The exchange was also denied. It was asserted that .
the defendants purchased plot bearing Khasra no.559/2/2 measuring 0-5-0 bigha from Narayan Dass vide sale deed no. 1461 dated 19.09.1989.
Narayan Dass also delivered the possession. The of defendants constructed a boundary wall around the land purchased by them in the year 1990. The rt defendants completed their construction in the year 1993. The defendants are owners of Khasra no.559/2/2 (new Khasra no.3393/559). The plaintiff filed a false suit earlier. It was specifically denied that the defendant had encroached upon the suit land. It was asserted that the demarcation obtained from the revenue authorities was not correct. The suit was filed without any basis; hence, it was prayed that the same be dismissed.
4. A replication denying the contents of the written statement and affirming those of the plaint was filed.
::: Downloaded on - 28/08/2023 20:34:39 :::CIS 85. Learned Trial Court framed the following issues on 19.01.2006:-
1. Whether the plaintiff is owner in .
possession of the suit land, as alleged? OPP
2. Whether tatima of the suit land as entered in the revenue record is wrong and contrary to the factual position on the spot as of alleged? OPP
3. Whether the defendants have rtencroached upon the suit land as alleged? OPP
4. If issue No.3 is proved whether the plaintiff is entitled for possession of the suit land? OPP
5. Whether the plaintiff has no locus standi to file the present suit? OPD
6. Whether the plaintiff is estopped from filing of this suit by his act and conduct? OPD.
6. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD.
7. Relief.
::: Downloaded on - 28/08/2023 20:34:39 :::CIS 96. The parties were called upon to produce the evidence and the plaintiff examined Chetan Singh (PW-1), Ashok Kumar (PW-2), Churu Ram (PW-
.
3), herself(PW-4), Umawati (PW-5), Khimi Ram (PW-6), Uttam Ram (PW-7) and Suresh Chand, Patwari (PW-8). Defendants examined Om Parkash, Special Power of Attorney,(DW-1) and Salig Ram of (DW-2).
7. The learned Trial Court held that the rt ownership and possession of the plaintiff over the suit land were not specifically denied. The plea of the plaintiff regarding the discrepancy was established on the balance of probabilities.
However, the report of the demarcation was not as per the law. The site plan showing the encroachment was also not prepared after the demarcation. The site plan filed by the plaintiff was not reliable; hence, the learned Trial Court answered issues no.1 and 2 in affirmative, issues No.3 to 7 in negative and partly decreed the suit for declaration but dismissed the suit for possession.
::: Downloaded on - 28/08/2023 20:34:39 :::CIS 108. Being aggrieved from the judgment and decree passed by the learned Trial Court, an appeal was filed before the learned Additional .
District Judge. Learned First Appellate Court held that the demarcation was not conducted as per the procedure prescribed under Chapter 10 of the H.P. Land Record Manual. The statements of of the parties were not recorded regarding the permanent points and the correctness of rt demarcation. The site plan filed by the plaintiff was rightly rejected by the learned Trial Court. Hence, the appeal was dismissed.
9. Being aggrieved and dissatisfied with the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed asserting that the learned Courts below had not properly appreciated the evidence placed before them. It was wrongly held that the decree could not be passed in the absence of Tatima prepared after demarcation. It was specifically mentioned in the report that defendant no.1 had constructed a house on the ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 11 land measuring 7 biswas; whereas she was the owner to the extent of 6 Biswas; hence, the encroachment was duly proved on record. The .
learned Trial Court held that the Tatima of the suit land recorded in the revenue record is wrong and contrary to the factual position. A consequential relief of injunction was also of granted to the plaintiff. These findings were not challenged by the defendants. The report of rt the demarcation was accepted by the learned AC IInd Grade, and this order was not challenged.
The report was final and the Court had no authority to reject the report of the demarcation. Hence, it was prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below declining the relief of the possession be set aside.
10. The appeal was admitted on 06.08.2008 on the following substantial questions of law:-
1. Whether the Learned Lower Appellate Court is right in holding that the demarcation is not carried out after ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 12 following the instructions issued by the Financial Commissioner (Revenue), especially when the demarcation report Exhibit PW-6/A was upheld by the Assistant Collector, IInd Grade, .
who is the competent authority and respondent No.1 and her husband was present on the spot at the time of demarcation and further they did not challenge the same?
2. Whether the findings recorded by the of Learned Courts below are right to the extent that the appellant has not proved the encroachment while placing rt no Tatima or site plan prepared by an expert, whereas the demarcation report Exhibit PW-6/A and site plan Exhibit PW-4/A clearly depicts that the encroached land is shown as EBCF in red ink?
3. Whether the findings recorded by the learned Courts below to the effect that the appellant has not proved encroachment is sustainable, especially when the PW-6 has deposed that respondent No.1 has raised a house on 7 Biswas of land, whereas she is the owner of land measuring 6 Biswas of land only?
11. I have heard Mr.J.L. Bhardwaj, learned Senior Advocate assisted by Ms. Dhanvanti, Advocate for the appellant and Mr. Neeraj Gupta, ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 13 learned Senior Advocate assisted by Mr. Pranjal Munjal, Advocate, for the respondents.
12. Mr. J.L.Bhardwaj, Senior Advocate, .
learned counsel for the appellant/plaintiff submitted that the learned Courts below erred in discarding the report of the demarcation. This of report was upheld by the Revenue Authorities and has attained finality. It was improper for the learned Courts below to discard the report. He rt submitted in the alternative that in case the report is held to be bad, a Local Commissioner be appointed for the demarcation of the land to finally settle the dispute between the parties.
The encroachment was proved by the statement of the demarcating official and the report of the demarcation wherein it was established that the construction was raised by defendant No.1 on 7 biswa of land whereas she is the owner of only 6 biswa of land. The learned Courts below could not have discarded the site plan prepared by the plaintiff. Hence, he prayed that the present ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 14 appeal be allowed, and the judgments and decrees passed by the learned Courts below be set aside.
13. Mr Neeraj Gupta, learned Senior .
Advocate, for the respondents/defendants supported the judgment and decree passed by learned Courts below and submitted that no of interference is required with the same. He submitted that Local Commissioner cannot be appointed in the present case because the rt plaintiff had relied upon the report of the demarcation, as a piece of evidence and when the learned Courts below rejected the same, they could not have helped the plaintiff in the collection of evidence; hence, he prayed that the present appeal be dismissed.
14. I have given considerable thought to the rival submissions at the Bar and have gone through the records carefully.
Substantial question of law No.1
15. It was submitted on behalf of the plaintiff/appellant that the learned AC IInd ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 15 Grade confirmed the report of the demarcation., The order was not challenged before the competent authorities, and it was not .
permissible for the learned Courts below to discard this report. This submission cannot be accepted. The report was produced before the Civil Court as a piece of evidence and the Civil of Court was within its jurisdiction to evaluate the report to determine its probative value. The rt submission that the Civil Court does not have the jurisdiction to go into the validity of the report confirmed by the revenue authorities, if taken to its logical conclusion, can result in passing a decree on a report, which is found to be contrary to the instructions issued by the Financial Commissioner as interpreted by this Court from time to time. This would also amount to abdicating the core function of the Civil Court to evaluate the evidence placed before it to the revenue authorities and will make the Civil Court an Executing Court for the orders passed by the Revenue Authorities. Such a ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 16 conclusion is unacceptable. The fact that the report was upheld by the Revenue Authorities can be one of the factors while evaluating the .
probative value but cannot be the sole factor to hold that the report has to be accepted without going into the validity of the procedure adopted by the Revenue official while conducting the of demarcation. Hence, the submission that the Civil Court cannot go into the validity of the rt report of the demarcation is rejected.
16. The process of demarcation was explained by this Court in the State of H.P. v.
Laxmi Nand, 1992 SCC OnLine HP 41 = 1992(2) Sim.
L.C 307, wherein after considering the instructions issued by the Financial Commissioner, it was held as under:-
"17. It is the admitted case of the parties that in so far as the three revenue estates are concerned, the maps prepared during the last settlement were not on the square system. Accordingly, the determining officer was required to relay the boundaries of the fields sought to be demarcated from the Shajra (village map), prepared at the last settlement. He was required to ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 17 locate three permanent points on three different sides of the area sought to be demarcated. The three points so selected and to be taken as a basis must be those, which are admitted to .
have remained undisputed from the last settlement. The officer is thereafter required to chain these three points on the spot and then compare the result with the distance given as per the scale on the Shajra. It is only when of distance, so compared, agree that the Revenue Officer can proceed with the further work of measurement. A pencil line is supposed to be drawn joining these rt three permanent points and thereafter perpendiculars are supposed to be drawn from these lines to each of the points, which are required to be located on the spot, in order to enable him to find out the exact distance from these points to the point sought to be demarcated, and then tally the result with the help of the scale on the Shajra, which can be drawn only with the help of the scale on the Shajra, which can be drawn only with the help of a crossed staff. The result is to be finally checked by measuring on the help of a scale on the Shajra. Since this report of demarcation is liable to scrutiny, by way of evidence, it is required that the report of the concerned officer on the face of it must explain the details and the manner as to how he made his measurements, which report must accompany a copy of the relevant portion of the Field Book ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 18 of current settlement of the village showing Karu Kans (dimensions) of the fields of which he took measurements as also a map showing therein the three permanent points, the fields measured .
and the boundary in dispute. As per the instructions, this is one of the necessary requirements to enable the Court to follow the method adopted and also in order to find out the veracity of the proceedings. The other of requirement, while submitting the report is to record the statements of interested parties before taking the three permanent points to the effect rt that all of them agreed and accepted the three points as permanent points on three different sides of the property. In case any objection is raised as to the manner in carrying out the demarcation, the said objection is required to be reduced into writing, so as to avoid the possibility of raising any question specifically and also to enable the Court to decide such objections. In case, an objection is raised on the spot, the demarcating officer is also required to submit his opinion on such objections. In case, while carrying out the demarcation, any discrepancy is noticed in the area of the fields abutting on the boundary in dispute as recorded in the last settlement and the one arrived at as a result of the actual measurement on the spot, the report is required to incorporate the same with an explanation as to the cause of increase ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 19 or decrease, if any, discovered on the spot. All these requirements, in our opinion, have been incorporated in the instructions with the ultimate object of ascertaining that while carrying out .
the demarcation correct method was adopted and no mistake committed."
17. This judgment was followed by this Court in State of H.P. v. Sher Singh, 1996 SCC of OnLine HP 71= 1998 Cr.L.J. 3191, Hari Dass vs. State 1996 (2) Sim. L.C. 370, State vs. Sher rt Singh 1998 Cr.L.J. 3191 State v. Mangat Ram, 1997 SCC OnLine HP 116= 1999 (2) Chand. L.R. 129, and Kamal Dev v. Hans Raj, 1999 SCC OnLine HP 39 =2000 (1) Sim. L.C. 192. This judgment was approved by the Hon'ble Supreme Court in Ram Lal v. Salig Ram, (2020) 11 SCC 590= 2019 SCC OnLine 121.
18. The report of the demarcation has to be seen in view of these precedents.
19. Report (Ext. PW-6/A) reads that the demarcating official prepared the Tatima of the site plan attached to Sale Deed no.84 and Mutation no.3111 on a tracing paper. It was ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 20 found from the perusal of the tatima that Khasra No.559/2/1 was 12 and 16 (10+6) Karam in length and 8 + 4 Karam in width, in the Sale Deed, .
however, it was changed to 9 and (6+3) karam in length and 10+5 karam in width in the mutation.
In this manner, length was reduced by 7 and 3 Karam. Similarly, there was a discrepancy in of Khasra nos.559/2/2 and 559/2/3. The area of the land of the plaintiff was kept as 4 biswa, rt whereas the area of the defendants' land was changed to 9 biswa. The permanent points were located. There was a passage on the western side of Khasra no.557. The boundary of Khasra no. 560 & 561 was measured with the help of Khasra no.562 and it was found to be correct. It was mentioned as point "A". Thereafter, point "B" was found towards the Northern side of Khara No. 559, 560 and 562. Its correctness was verified with reference to point "A". The North Western side of Khasra no.561 and South Western side of Khara no.560 was towards North to the extent of 22 Karam and it was found to be ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 21 correct. 32 Karam was measured from point "A", 15 and 13 Karams were measured towards the East of Point "B" and this was found to be the .
northeast side of Khasra no.560. The passage was available on Khasra no.557. This point was marked as Point "C". Thereafter, the Eastern Southern side of Khasra No. 584 was marked as of Point "D", the Eastern South side of Khasra No.558 was marked as Point "E" and in this rt manner, points ABCDE were located. The measurement of Khasra no.3392/559, 3393/559, and 3394/559 was carried out with the help of these points. The dimensions mentioned in the Sale deed and Mutation were checked. It was found that the possession of the parties was as per mutation no.3111 but the same did not tally as per the Tatima attached to the Sale deed. It appeared that the Tatima attached to the mutation was wrongly prepared and there was a mistake while calculating the area.
20. There are many infirmities in the report of the demarcation. The learned First ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 22 Appellate Court had correctly pointed out that the Local Commissioner had not recorded the statements of the parties regarding the .
permanent points. The Local Commissioner can locate three permanent points on three sides of the field sought to be located by way of demarcation but he has to be satisfied that of these points have remained unchanged since the last settlement. There is nothing in the report rt to show that permanent points taken by the demarcating official had remained unchanged since last settlement.
21. The demarcating official was supposed to join three permanent points taken by him and to tally the distance on the spot and the map before proceeding further. If the map was prepared by the triangular method and four points if the map was prepared by a square method. The demarcating official had taken five points ABCDE, which is not provided in the instructions. He had not joined them to verify the distance on the spot and the map.
::: Downloaded on - 28/08/2023 20:34:39 :::CIS 2322. The map attached to the report or the copy of Aks Shajra Kistwar (Ext. P-3) does not mention the other Khasra numbers; therefore, .
there is nothing on record to verify whether the permanent points were taken towards three sides of the field sought to be demarcated or not. The instructions interpreted by this Court of specifically provided that three points have to be taken towards three different sides of the rt field sought to be located by demarcation. Thus, the report was rightly discarded by the learned Courts below.The learned Courts below could not have accepted the report of the demarcation simply because it was upheld by the learned AC IInd Grade, hence the substantial question of law no.1 is answered accordingly.
Substantial Question of Law No.2
23. The plaintiff relied upon the site plan (Ext.PW-4/A) prepared by her. The learned Trial Court discarded this site plan on the ground that this site plan is not sufficient to prove the exact encroachment made by the ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 24 defendants/respondents, especially, when the report does not mention the exact area encroached by the defendants/respondents. The .
learned First Appellate Court upheld those findings and held that in the absence of a properly conducted report of the demarcation, it was highly unsafe to rely upon the map prepared of by the plaintiff to order the demolition of the encroached portion. There is no infirmity in rt this finding recorded by the learned Courts below. The plaintiff was required to prove exact encroachment and this could have been done only by the report of the expert. The site plan (Ext.
PW-4/A) is not on the scale. It mentions the encroachment of 9 Karam and 2 Karam towards one side and 2 Karam on the other side. It is an admitted case of the plaintiff that she sought demarcation after an objection was raised by the defendants that they had raised construction on their land. This shows that the plaintiff was not sure about the encroachment and that is why she had sought the demarcation. In such a ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 25 situation, the plaintiff cannot held to be competent to determine the encroachment on the suit land. Further, she has not mentioned her .
qualification in her affidavit to establish that she was competent to carry out the demarcation and detect the encroachment; hence, the learned Courts below had rightly discarded the site plan of prepared by the plaintiff. The demolition could not have been ordered based on the site plan rt prepared by a lay person without their being proof of her expertise. Hence, the substantial question of law no.2 is answered accordingly.
Substantial question No.3.
24. A heavy reliance was placed upon the fact that Khimi Ram (PW-6), found that the house of Kamla was constructed on 7 biswa of land whereas she was entitled to 6 biswa of land. It has been found out above that demarcation conducted by this witness was not conducted as per law. Therefore, the conclusion drawn by him that defendant no.1 had constructed the house over the 7 Biswas of land cannot be accepted.
::: Downloaded on - 28/08/2023 20:34:39 :::CIS 26Moreover, the mere fact that defendant no.1 has raised construction of her house over 7 biswa of land whereas she is the owner of 6 biswa of land .
cannot lead to any inference that she has encroached upon the land of the plaintiff when it is not the case that the land of the defendant is surrounded by the land of the of plaintiff alone and not any other person. This was the fact to be established by the plaintiff rt by legally admissible evidence. When there was no legally admissible evidence to prove the encroachment, the demolition, could not have been ordered on the basis that the defendants no.1 had raised construction over the excess land; hence the learned Courts below had rightly discarded this evidence. Therefore, substantial question of law is answered accordingly.
Consequences of the rejection of the demarcation report.
25. Learned Trial Court granted a decree for a declaration that the plaintiff is owner in possession of the land comprised in Khasra No.3392/559, wherein the length of the Western ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 27 side of the suit land is 10+6 Karam instead of 6 Karam + 3 Karam and the length of Eastern side of the suit land is 12 Karam instead of 9 Karam.
.
This was not disturbed by the learned First Appellate Court. Both the learned Courts below declined the relief of possession on the ground that the report of the demarcation was not of proper and no site plan was prepared after the demarcation. This was not proper.
rt
26. It was laid down by this Court in Braham Datt Vs. Prem Chand 2000(1) S.L.J. 431 that where the plaintiff had done everything within his power, but the revenue agency had not prepared the correct report, the suit of the plaintiff could not have been dismissed. The Court should have appointed another Local Commissioner. It was observed: -
"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 the rules, the case of the plaintiff ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 28 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 of entertained any doubt about the correctness of the demarcation and the report, the prayer of the plaintiff for the appointment of a Local Commissioner rt 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 demarcating the land, a party should not be deprived of justice on merits by taking recourse to technicalities.
15. Once the learned District Judge had entertained a 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. The impugned judgment and decree, therefore, cannot be sustained."::: Downloaded on - 28/08/2023 20:34:39 :::CIS 29
27. Similarly in Bali Ram v. Mela Ram, 2002 SCC OnLine HP 28=AIR 2003 H.P. 87, a Tatima prepared by the Patwari was produced but was .
not accepted. It was laid down this High Court that if the Tatima was not in accordance with the instructions, the remedy was to appoint a Local Commissioner to carry out fresh of demarcation. It was observed:-
"15. In the case in hand, as already rt stated, the preparation of the Tatima correctly was not within the powers of the parties and they did whatever was possible on their part. Therefore, after coming to the conclusion that a part of the suit land is in possession of the plaintiff and the defendant is interfering with his possession, it is necessary for a fair and just decision of the case to ascertain the actual position of the spot which can be best ascertained by the issue of a commission at the cost of the parties."
28. In Ram Lal (supra), this Court had found that the demarcation was not conducted in accordance with the Rules and dismissed the suit. It was held by the Hon'ble Supreme Court that the suit should not have been dismissed, ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 30 but another Local Commissioner should have been appointed to bring the true facts before the Court. It was observed:-
.
"19. The fact that the Local Commissioner's report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the of order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues rt were remitted for finding on the basis of Local Commissioner's report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner's report was found wanting in compliance with applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 31 order requiring the appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of the .
High Court, where after rejecting the Commissioner's report, the High Court straightway proceeded to dismiss the suit."
29. Therefore, the learned Trial court was of bound to appoint another Local Commissioner after holding that the report of the Local rt Commissioner was not in accordance with the Rules. The submission that the Court was not bound to assist the parties in the collection of the evidence by appointment of a Local Commissioner and that the report was merely a piece of evidence cannot be accepted in view of the precedents of this Court and the Hon'ble Supreme Court.
30. Thus, the learned Courts below had erred in declining the relief after finding that the report of the demarcating official was not as per law. They could not have non-suited the ::: Downloaded on - 28/08/2023 20:34:39 :::CIS 32 plaintiff in view of the binding precedent of this Court and the Hon'ble Supreme Court.
Final order:
.
31. In view of the above, the present appeal is allowed, and the judgments and decrees passed by the learned Courts below declining the of relief of possession are set aside. The matter is remitted to the learned Trial court with the rt direction to appoint a Local Commissioner to carry out demarcation as per the decree passed by it for declaration as per the law and thereafter decide the prayer of the plaintiff to seek possession as per the report. The parties through their counsel are directed to appear before the learned Trial Court on 25th September 2023. Pending miscellaneous applications, if any, also stand disposed of.
(Rakesh Kainthla)
August 28,2023 Judge
(ravinder)
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