Himachal Pradesh High Court
Kangru Ram vs Sriram on 21 March, 2018
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 261 of 2017 Reserved on 17.03.2018 Decided on: 21.03.2018 .
_______________________________________________________________ Kangru Ram .....Petitioner Versus Sriram ......Respondent _______________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
_______________________________________________________________ For the petitioner: Mr. K.D. Sood, Sr. Advocate with Mr. Het Ram Thakur, Advocate.
For the respondent: Mr. Surinder Saklani, Advocate. _______________________________________________________________ Chander Bhusan Barowalia, Judge.
The present petition, under Article 227 of the Constitution of India, is maintained by the petitioner/plaintiff (hereinafter to be called as "the plaintiff"), for quashing the order dated 19.05.2017, passed by learned Civil Judge (Jr. Div.), Court No. 4, Hamirpur, H.P., in CMA No. 375 of 2013, Civil Suit No. 120 of 2012, whereby an application, under Order 26, Rule 9, read with Section 151 CPC, for appointment of the Local Commissioner, was dismissed.
2. Briefly stating facts giving rise to the present 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 21/03/2018 23:16:44 :::HCHP 2petition are that the plaintiff filed an application before the leaned Court below, under Order 26, Rule 9, read with Section 151 CPC, wherein he alleged that the .
respondent/defendant is adjoining owner, having Khasra No. 208 and he dug the suit land and raised construction in the shape of steps and also blocked the drain/challa of the plaintiff. It has been further averred in the application that since main dispute inter se the parties is boundary dispute, the appointment of Local Commissioner is necessary as it will enable the Court to give specific findings. Lastly, the plaintiff prayed that the present application may be allowed and Local Commissioner to demarcate the suit land and to report the nature and extent of encroachment, may be appointed.
3. In reply to the application, the respondent/defendant has averred that this application is not maintainable, as the plaintiff has not produced any evidence and now moved the application. Further the application of the plaintiff cannot be allowed, as the same will amount to create evidence in favour of the plaintiff.
Lastly, the respondent/defendant prayed for dismissal of the application with costs.
::: Downloaded on - 21/03/2018 23:16:44 :::HCHP 34. Learned Court below vide its order dated 19.05.2017, dismissed the application, so filed by the plaintiff, hence the present petition.
.
5. I have heard the learned counsel for the parties and have gone through the record carefully.
6. Learned Senior Counsel appearing on behalf of the petitioner has argued that the application, under Order 26, Rule 9, read with Section 151 CPC, was required to be allowed in order to decide the real controversy inter se the parties, as it is a boundary dispute and it cannot be decided without there being report of the Local Commissioner. He has further argued that as per the law laid down by Hon'ble Supreme Court and this Hon'ble Court, when there is a boundary dispute, the Local Commissioner is required to be appointed to resolve that dispute. In support of his contentions, learned Senior Counsel has placed reliance upon the following judicial pronouncements:
1. 2008 (8) SCC 671, titled as Haryana Waqf Board vs. Shanti Sarup and others.
2. 2002 (3) SLC 131, titled as Bali Ram vs. Mela Ram and another.
3. Latest HLJ 2006 (HP) 5, titled as Prithi Singh vs. Sakshi Ram and another.::: Downloaded on - 21/03/2018 23:16:44 :::HCHP 4
7. A Division Bench of Hon'ble Supreme Court in Haryana Waqf Board vs. Shanti Sarup and others, (2008) 8 .
SCC 671, have held as under:
5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorised possession in respect of the suit land by them as per Para 3 of the plaint.
But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial Court was wrongly rejected.
6. It is also not in dispute that even before the appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.
7. For that reasons aforesaid, we are of the view that the High Court ought to have considered this aspect of the matter and then decided the second appeal on merits. Accordingly, we set aside the judgment and decree passed in the second appeal and the second appeal is restored to its original file.
8. The High Court is requested to decide the second appeal in the light of the observations made hereinabove within six months from the date of supply of a copy of this order to it. The appeal is thus allowed. There will be no order as to costs"
::: Downloaded on - 21/03/2018 23:16:44 :::HCHP 58. A co-ordinate Bench of this High Court in Bali Ram vs. Mela Ram and another, 2002 (3) SLC 131, has held .
as under:
"13. Rule 9 of Order 26 of the Code of Civil Procedure (hereinafter 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 r Order 26 of the 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 circumstance 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 case."
9. A co-ordinate Bench of this High Court in Prithi Singh vs. Bakshi Ram and another, Latest HLJ 2006 (HP) 5, has held as under:
"7 As referred to above, the dispute between the parties was in fact a boundary dispute. It could be solved only by demarcation, inasmuch as the land claimed by the plaintiff to be owned and possessed by him as different from the land ::: Downloaded on - 21/03/2018 23:16:44 :::HCHP 6 claimed by the defendants to be owned and possessed by them and both the lands were adjoining each other. In such a situation, the only course open for the trial Court was to have appointed a Local Commissioner to visit the spot after issuing notice to both the parties and to .
demarcate the suit land in accordance with law.
Instead of ordering the appointment of the Local Commissioner to demarcate the suit land, the learned trial Court proceeded to dismiss the application of the plaintiff under Order 26 Rule 9 CPC by taking the plea that the object of local investigation was not to collect evidence on behalf of the parties. In my opinion, appointment of a Local Commissioner to demarcate the suit land, in a case which involves boundary dispute would not amount to collecting on behalf of either party. On the other hand, as referred to above, this would be the only course open to the trial Court to settle the dispute between the parties by appointing a Local Commissioner to visit the spot and to submit his report after demarcation in accordance with law."
10. Learned Senior Counsel has also placed reliance upon a Procedure in "Hadd-Shikni cases", as prescribed in Volume (I), H.P. High Court Rules and Orders, which is as under:
"1. In "Hadd-Shikni" suits and other suits of boundary disputes of land failing within the jurisdiction of a Civil Court it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways:-
(a) by suggesting that one party or the other should apply to the Revenue Officer to fix the limits under Section 101 (1) of the Punjab Land Revenue Act. Time for such purpose should be granted under Order XVII, Rule 3, of the Code of Civil Procedure,
(b) by appointing a local commissioner, and (C) by the Court itself making a local enquiry."::: Downloaded on - 21/03/2018 23:16:44 :::HCHP 7
11. On the other hand, learned counsel for the respondent has argued that trial in the present case is .
pending since long and the petitioner has not filed the application in question earlier and now when he comes to know about the fate of his case, the present application has been filed by him. In support of his contentions, learned counsel for the respondent has placed reliance upon the judgment of a Co-ordinate Bench of this Hon'ble High Court, Latest HLJ 2016 (HP) 831, titled as Liaquat Ali vs. Amir Mohammad and others. The relevant extracts of the judgment are reproduced hereinbelow:
"5. What is the measurement of the suit passage and whether the same has been obstructed or encroached upon are matters which were required to be proved by the petitioner by leading cogent and convincing evidence to this effect and, therefore, recourse to the appointment of Local commissioner for demarcating the suit land at this stage is impermissible as both the parties have led their evidence. Obviously the application now preferred by the petitioner is mischievous as the petitioner wants the court to collect evidence for him through the Local commissioner."
12. To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail.
::: Downloaded on - 21/03/2018 23:16:44 :::HCHP 813. In the present case the land is adjoining and case of the parties is that when partition took place one .
Khatti alongwith the land came to the possession of one party and one khatti alongwith land came to the possession of other party. Now the khatti of the plaintiff has been polluted due to the construction and foul discharge of water (A word "Khatti" means source of water for drinking purpose, which comes from the small hillock, adjoining the back side of the house).
14. This is definitely a boundary dispute inter se the parties and in these circumstances, report of the Local Commissioner is very material and res integra to decide the dispute between the parties. It has come on record that the plaintiff has approached to the Revenue Authorities for demarcation. It has also come on record that earlier the demarcation was not possible due to wrong Karukans. In these circumstance, this Court finds that the application though not moved at the earliest and as argued by the learned Senior Counsel for the plaintiff, it was maintained late, as the plaintiff first of all wants to establish by leading evidence with respect to the boundary and boundary ::: Downloaded on - 21/03/2018 23:16:44 :::HCHP 9 dispute.
15. This Court after going through the records and law, cited by the learned Senior Counsel for the .
plaintiff/petitioner, finds that present is a fit case where the learned Court below should have appointed a Local Commissioner to give a demarcation report with regard to the land and structures of the parties, however the learned Court below has not exercised the jurisdiction vested in it.
16. Now coming to the law relied upon by the learned counsel for the respondent/defendant in Liaquat Ali vs. Amir Mohammad and others case. This Court finds that the facts of the case in hand are totally different from the case cited by the learned counsel for the respondent, as in above cited case, there existed a passage at the first instance and whether passage is there or not, is not a boundary dispute, so this judgment is not applicable to the facts of the present case.
17. The net result of the above discussion is that the learned Court below was required to exercise its jurisdiction by appointing a Local Commissioner to demarcate the land as per the procedure and it cannot be said that if the Local Commissioner is appointed, the same will create evidence ::: Downloaded on - 21/03/2018 23:16:44 :::HCHP 10 in favour of the plaintiff. Accordingly, the present petition is allowed and order dated 19.05.2017, dismissing the application of the petitioner/plaintiff, under Order 26, Rule .
9, read with Section 151 CPC, is set aside and it is ordered that learned Court below will appoint a Local Commissioner by allowing application of the petitioner/plaintiff. Parties through their counsel are directed to appear before the learned Court below on 2nd April, 2018.
18. In view of the aforesaid terms, the petition, so also pending application(s), if any, shall stand(s) disposed of.
(Chander Bhusan Barowalia) Judge 21st March, 2018 (raman) ::: Downloaded on - 21/03/2018 23:16:44 :::HCHP