Himachal Pradesh High Court
Jagdish Singh (Deceased) Through Lrs vs . Roshan Lal on 2 August, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
Jagdish Singh (deceased) through LRs vs. Roshan Lal .
Civil Revision No. 25 of 2019 02.08.2024 Present: Mr. Praveen Chauhan, Advocate vice Mr. Y.P. Sood, Advocate for the petitioner.
Mr. Ashok Kumar, Advocate vice Mr.V.D. Khidtta, Advocate for the respondent.
CMP No.10907 of 2021 A Civil Suit bearing No. 39-1/2017 titled Jagdish Singh vs. Roshan Lal filed for permanent prohibitory injunction, for restraining the defendant/respondent from interfering or constructing the residential house roof projection or enhancing countilevel/projection in the suit land, has been decreed restraining the defendant from interfering or extending the roof projection of his residential house over the suit land.
Thereafter, Execution Petition, bearing Civil Misc.
Application No. 5-10/2018, titled Jagdish Singh vs. Roshan Lal, preferred by the plaintiff/petitioner, has been dismissed by the Executing Court on the ground that there was no evidence of extension of roof projection by defendant/respondent over the suit land and thus, the petitioner had failed to prove that respondent had violated the injunction order passed by the Court.
Aforesaid dismissal of Execution Petition has been assailed in the present Civil Revision Petition.
During pendency of petition, respondent claimed that decree passed by the Trial Court stands satisfied even prior to April, ::: Downloaded on - 05/08/2024 20:31:06 :::CIS 2021 by submitting that construction made in violation of decree passed .
by the Trial Court had been demolished. The said contention of respondent was disputed by learned counsel for petitioner, according to instructions imparted to him, with submission that only partial construction had been removed but not the entire construction which has been raised in violation of decree passed by Trial Court.
In aforesaid circumstances, petitioner has filed this application for appointment of Local Commissioner, to ascertain the truth and verify the veracity of submissions made by parties, for carrying the demarcation of suit land, with further submission that in view of conflicting statements of parties, there is no other way to ascertain the facts.
Though learned counsel for respondent has agreed for appointment of Local Commissioner but with assertion that Local Commissioner should not be a Revenue Officer but an Advocate, practicing in the Court, with further submissions that in case the Revenue Officer is appointed as Local Commissioner, then it would amount to create the evidence in favour of petitioner.
There is claim of petitioner is that respondent has not vacated the entire land belonging to petitioner and construction raised in violation of order passed by Court is existing on the spot, whereas learned counsel for respondent is denying the same.
Copy of demarcation report along with statements of parties and other villagers including Pradhan has also been placed on record. In these documents, there is reference of ::: Downloaded on - 05/08/2024 20:31:06 :::CIS fixation of boundary marks of respective Khasra number owned and .
possessed by parties, but this report is completely silent about existence or removal of structure from land belonging to petitioner.
To ascertain this fact, there is no other option except to demarcate the land through Revenue Officer and to ask the said Officer to submit the report with respect to status of suit property in reference and existence of construction thereon, if any, with details that who has raised such construction as there is no other way to ascertain the aforesaid facts and therefore, it will not amount to creation of evidence in favour or against the either party particularly keeping in view the respective stands of parties.
In aforesaid circumstances, the application is allowed and the Tehsildar, Jubbal, District Shimla is directed to visit the spot and conduct the demarcation of land comprised in Khasra No. 203, Khata/Khatauni No. 100 min/255 min, measuring 00-03-09 hectare situated in Mauja Khatasu, Tehsil Jubbal, District Shimla with the help of Revenue Officials and others, and to verify the fact as to whether respondent has removed the entire construction from the land belonging to petitioner or not in terms of decree passed by the Trial Court and if there is construction raised by respondent in the land of petitioner, then to report extent and nature thereof.
Learned counsel for parties are also at liberty to remain associated, if desired so, during demarcation proceedings. The Local Commissioner's fee is assessed as Rs.10,000/- payable by petitioner to the Local Commissioner on the spot before demarcation. The ::: Downloaded on - 05/08/2024 20:31:06 :::CIS demarcation be conducted within one month from today and the Local .
Commissioner shall submit his report in the Court through the Officer of Advocate General or in person on or before 16th September, 2024.
Registry to transmit the copy of this order to Tehsildar, Jubbal to ensure compliance.
Parties are also directed to inform him about this order by producing downloaded copy of this order by appearing before him on 5th August, 2024.
Application is allowed and disposed of.
Civil Revision No. 25 of 2019List for consideration on 20th September, 2024.
August 02, 2024 (Vivek Singh Thakur)
(ms) Judge
::: Downloaded on - 05/08/2024 20:31:06 :::CIS