Himachal Pradesh High Court
Sahi Ram vs Of on 21 November, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. No. 578 of 2009 Reserved on: 16.10.2023 .
Date of Decision: 21st November,2023 Sahi Ram ....Appellant Versus of Asha Rani & another ....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt Whether approved for reporting? Yes For the Appellant : Mr. G.D.Verma, Senior Advocate with Mr. Sumit Sharma, Advocate.
For the Respondents : Respondents ex parte vide order dated 11.10.2011.
Rakesh Kainthla, Judge.
The present appeal is directed against the judgment and decree dated 31.08.2009, passed by the learned District Judge, Solan, H.P, vide which, the appeal filed by the present appellant (plaintiff before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
__________________ Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 21/11/2023 20:33:19 :::CIS 2
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a Civil Suit before the learned .
Trial Court for seeking a permanent prohibitory injunction restraining the defendants from interfering with the land comprised in Khata Khatauni No.3min/122, Khasra No. 1394/ 681/1, measuring 15 sq. meters situated in Mauza of Lower Bazar Solan, Tehsil & District Solan, H.P. (hereinafter referred to as the suit land). It was pleaded that the plaintiff is a rt co-owner in possession of the suit land. The suit land was transferred to the plaintiff by Sh. Dantu Ram and mutation No. 806 of exchange was attested. The suit land leads to Khasra No. 1396/681/2, on which the house of the plaintiff is situated. The suit land is the only way to reach the house of the plaintiff. The defendant has no right, title or interest over the suit land. He is threatening to interfere with the same by raising a retaining wall.
He was requested not to do so but in vain. Hence, the suit was filed for seeking the relief mentioned above.
3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and the plaintiff being estopped from filing the present suit by his ::: Downloaded on - 21/11/2023 20:33:19 :::CIS 3 act and conduct. The contents of the plaint were denied on merits.
It was asserted that the defendant is owner in possession of the .
land bearing Khasra No. 1212/680 measuring 100Sq. meters, which is located adjacent to the suit land. The defendant has constructed a boundary wall on his land. The plaintiff is discharging the water towards the boundary wall. The boundary of wall collapsed in September 1999. The defendant has a right to reconstruct his damaged wall. The plaintiff is trying to encroach rt upon the land of the defendant without any right to do so. Hence, it was prayed that the suit be dismissed.
4. A counterclaim was filed for seeking permanent prohibitory injunction for restraining the plaintiff from interfering with the land of the defendant bearing Khasra no. 1212/680, measuring 100 sq. meters. It was asserted that the plaintiff was discharging water towards the land of the defendant.
There was a boundary wall on the land of the defendant, which collapsed due to the discharge of the water. The plaintiff is encroaching upon the land of the defendant without any right to do so. Hence, the injunction was sought against the plaintiff.
::: Downloaded on - 21/11/2023 20:33:19 :::CIS 45. A written statement was filed to the counterclaim denying its contents. It was asserted that the defendant is not .
sure about his boundaries and he is trying to extend his boundaries and encroach into the land of the plaintiff. The counterclaim was filed without any basis; hence, it was prayed that the counterclaim be dismissed.
of
6. Learned Trial Court framed the following issues on 10.01.2005:-
1.
rt Whether the plaintiff is co-owner in possession of the suit land as alleged? OPP.
2. Whether defendant is interfering in the suit land in an illegal manner? OPP.
3. Whether the suit is not maintainable? OPD.
4. Whether plaintiff is estopped by his act and conduct to file the present suit? OPD.
5. Whether defendant is owner in possession of the land denoted by Khasra No.1212 /680 situated at Mauja Lower Bazaar, Solan as alleged? OPD.
6. Whether plaintiff is interfering in Khasra No.1212/690 situated in Mauja Lower Bazar, Solan in an illegal manner? OPD.
7. Whether the defendant is entitled for the decree of permanent prohibitory injunction by way of counterclaim as prayed? OPD.
8. Relief.
::: Downloaded on - 21/11/2023 20:33:19 :::CIS 57. The learned Trial Court framed additional issues on 27.10.2006:-
.
I. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? OPP.
II. Whether suit is not maintainable? OPD. III. Relief.
8. The plaintiff filed an application under Order 1 Rule 10 of CPC for the impleading Jagadish Kumar and Mukesh Kumar because the original defendant Ashwani Kumar had transferred rt his share to these persons. This application was allowed on 23.09.2006.
9. The newly added defendants filed a written statement taking preliminary objections regarding lack of locus standi and maintainability, the plaintiff having not come to the Court with clean hands and having suppressed material facts, and the defendants being bona fide purchasers for consideration. The contents of the plaint were denied on merits. It was asserted that the price of 15 sq. meters of land is more than ₹ 100/- and no exchange could have been effected in the absence of a registered document. The house and retaining wall belonged to Ashwani Kumar. The defendant acquired the property from Ashwani ::: Downloaded on - 21/11/2023 20:33:19 :::CIS 6 Kumar, who did not tell anything about the litigation and the newly added defendant had made due enquiries from Patwari .
before purchasing the land; therefore, it was prayed that the suit be dismissed.
10. The parties were called upon to produce their evidence and the plaintiff examined Lalit Kumar (PW-1) and himself (PW-
of
2). No evidence was produced by the defendants despite having been granted many opportunities. When the matter was listed for rt evidence of the defendants on 29.05.2007, none appeared on behalf of the defendants and they were proceeded against ex parte.
11. The learned Trial Court dismissed the suit on 31.05.2007.
12. Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal which was allowed by the learned Additional District Judge (Presiding Officer), Fast Track Court, Solan, H.P. A direction was issued to appoint a Local Commissioner for demarcating the land and reporting about the encroachment made by the defendant on the suit land.
::: Downloaded on - 21/11/2023 20:33:19 :::CIS 713. The learned Trial Court appointed a local commissioner on 05.08.2008, who reported that there was some .
discrepancy in the Musabi. Khasra No. 1394/681 /1 was not found in the Musabi supplied by the plaintiff. Therefore, it was not possible to carry out the demarcation.
14. The learned Trial Court held that the Local of Commissioner appointed after the remand of the case could not demarcate the land because Khasra No. 1394/681/1 did not exist in rt Musabi. Hence, the version of the plaintiff that the defendant has encroached upon the suit land was not proved on record. Learned Trial Court answered issues no. 1 and 2 in negative and dismissed the suit of the plaintiff.
15. Being aggrieved from the judgment and decree passed by the learned Trial court, the plaintiff filed an appeal. Learned First Appellate Court concurred with the findings recorded by the learned Trial Court that there was no evidence of encroachment and interference. The plaintiff was not entitled to the relief of injunction in the absence of encroachment or interference.
Therefore, the appeal was dismissed.
::: Downloaded on - 21/11/2023 20:33:19 :::CIS 816. Feeling aggrieved and dissatisfied with the judgments and decrees passed by the learned Courts below, the plaintiff filed .
the present appeal asserting that the learned Courts below did not properly appreciate the pleadings and evidence placed on record.
The material issues were not framed. The Local Commissioner was appointed with the consent of the parties but he did not carry of out the demarcation. The learned Trial Court and learned First Appellate Court were duty-bound to ensure that the boundaries of rt the plots of the party were fixed and determined. The Local Commissioner could not have refused to carry out the demarcation on the ground that the Khasra number was not mentioned in the Musabi. The parties should have been directed to produce the relevant record. The Court can appoint a Local Commissioner to carry out the demarcation in suitable cases.
Therefore, it was prayed that the present appeal be allowed and judgments and decrees passed by the learned Courts below be set aside.
17. The appeal was admitted on the following substantial question of law framed on 18.03.2011:-
::: Downloaded on - 21/11/2023 20:33:19 :::CIS 91. Whether after remand of case by Ld. Addl. District Judge, it was bounden duty of the Ld. Trial Court to comply with those directions and get boundaries fixed by appointing a Local Commissioner and since this has .
not been done, therefore, findings as held are liable to be set aside?
2. That merely for the reason that the second Local Commissioner had reported that he had not been made available the relevant record, the courts below could not have closed the matter, rather parties were of required to be directed to make the relevant revenue record available.
18. I have heard Mr G.D.Verma, learned Senior Counsel assisted by Mr. rt Sumit Sharma, learned counsel for the appellant/plaintiff.
19. Mr. G. D. Verma, learned Counsel for the appellant/plaintiff submitted that the learned Courts below erred in dismissing the suit. There was a boundary dispute between the parties. The learned First Appellate Court had remanded the matter to the learned Trial Court with the direction to appoint a Local Commissioner to carry out the demarcation. The learned Trial Court appointed a Local Commissioner but he did not submit his report and stated that the demarcation was not possible in the absence of the Khsara No. 1394/684/1 in the revenue record. The learned Trial Court should have asked the plaintiff to produce the ::: Downloaded on - 21/11/2023 20:33:19 :::CIS 10 relevant revenue record and directed the Local Commissioner to carry out the demarcation as per law. Hence, he prayed that the .
present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside.
20. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
of
21. A reference was made to the Local Commissioner, who submitted a report dated 28.08.2008, stating therein that Sahi rt Ram handed over Jamabandi and Musabi to him. He compared the documents with each other and found that Khasra No. 1394/681/1 or the whole Khasra No. 681 of which the demarcation was ordered to be conducted did not exist in the Musabi. Hence, he was unable to carry out the demarcation. He submitted the documents with his report.
22. Perusal of the copies of the Jamabandi annexed to the report shows that Khasra Nos.1506/681 and 1507/681 were mentioned in the copy of the Jamabandi for the year 2002-2003.
The copy of the Aks Musabi mentions Khsara Nos. 676, 682, 684, 680 and 679. One Red Cross was put in the Musabi and it was mentioned that this Khasra number could not be read; therefore, ::: Downloaded on - 21/11/2023 20:33:19 :::CIS 11 it was not mentioned.
23. The plaintiff had relied upon the copy of the Jamabandi .
in which an entry was made that as per mutation no. 806, Khasra No. 1394/681/1 measuring 15 sq meters was mutated in favour of the plaintiff and other persons. He did not file a copy of the mutation showing Khasra number 1394/681/1.
of
24. The Financial Commissioner issued the directions for conducting the demarcation of the land in the exercise of the rt powers vested in him under Section 106 of the H.P. Land Revenue Act. These are mentioned in Chapter 10 of the H.P. Land Records Manual.
25. Chapter 10.3 provides that the person shall submit an application for demarcation and file a copy of the latest Jamabandi, a copy of the previous settlement map, a copy of the map prepared during the consolidation, if any, a copy of Tatima Shajra and process fee. Thus, an obligation has been cast upon the person seeking demarcation to produce the record of the land of which the demarcation is sought. In the present case, the plaintiff has sought the demarcation and the burden was upon him to produce the record before the Revenue Official to enable him to ::: Downloaded on - 21/11/2023 20:33:19 :::CIS 12 carry out the demarcation. When no record was produced, the Local Commissioner could not have carried out the demarcation.
.
26. It was submitted that the Court should have directed the plaintiff to produce the record instead of acting upon the report of the Local Commissioner. A perusal of the record shows that the reference was initially made to the Local Commissioner of on 29.02.2008 and thereafter the matter was adjourned repeatedly. It was specifically directed on 23.05.2008, that the rt plaintiff shall produce the necessary jamabandi and copy of Musabi before the Local Commissioner. It was again ordered on 01.08.2009, that the parties would be present at the spot alongwith Jamabandi and Musbai etc. The Local Commissioner may take the assistance of the Patwari Halqua, if required. It was noticed on 28.08.2008, that the demarcation could not be conducted as there was some discrepancy in the Musabi. The documents were obtained; therefore, a fresh notice was issued to the Local Commissioner. The Local Commissioner submitted his report stating that the field sought to be demarcated was not shown in the Musabi.
27. The order sheet maintained by the learned Trial Court ::: Downloaded on - 21/11/2023 20:33:19 :::CIS 13 clearly shows that repeated directions were issued to the plaintiff and the matter was adjourned to enable the plaintiff to produce .
the relevant record before the Local Commissioner. When the plaintiff failed to produce the record despite the lapse of more than six months, the Court had no option but to proceed further as per law.
of
28. The learned Trial Court could not wait indefinitely for the production of the record before it or the Local Commissioner rt to carry out the demarcation. The plaintiff has sought demarcation and it was for him to produce the relevant record as per Chapter 10.3 of the H.P. Land Records Manual.
29. Mr. G.D. Verma, learned Senior Counsel for the appellant/plaintiff relied upon the following Judgments:-
Bali Ram v. Mela Ram, 2002 AIR 2003 HP 87 ;
Om Parkash v. VedParkash, AIR 2000 HP 45 ;
Liaquat Ali v. Amir Mohammad, 2016 SCC OnLine HP 1440;
Balbir Singh Vs Sh. Pohu Khan 2017 Latest HLJ HP 296;
Haryana Waqf Board v. Shanti Sarup, 2008) 8 SCC 671 ;
Municipal Council Bawal v. Babu Lal, (2018) 4 SCC 369;
::: Downloaded on - 21/11/2023 20:33:19 :::CIS 14and submitted that the Court is bound to appoint a Local Commissioner in case of boundary disputes.
.
30. These judgments do not lay down any such proposition of law. In Beli Ram's case,(supra) it was found that the plaintiff had applied for preparation of Tatima and this Tatima was not of accepted by the Court. It was held by this Court that when the parties had done everything within their power, they could not be rt penalized for the fault committed by the Revenue Agency. In the present case, the plaintiff had not taken the steps to produce the record. Hence, the cited judgment does not apply to the present case.
31. In Om Parkash's case (supra), it was held that where a prayer is made to examine the Local Commissioner, the Court is bound to grant such prayer, which is not the case here. In Liaquat Ali's case (supra), the Court held that the petitioner has to prove the encroachment and recourse cannot be held to the Local Commissioner. It was observed:-
"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 ::: Downloaded on - 21/11/2023 20:33:19 :::CIS 15 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."
32. This judgment instead of helping the plaintiff goes of against him as it was laid down in it that it is the duty of the plaintiff to produce the evidence in support of his case and the rt Court cannot collect the evidence for the plaintiff.
33. In Balbir Singh's case (supra), the Hon'ble Supreme Court noticed that the plaintiff had obtained the demarcation but it was found to be correct, which is not the case here.
34. In Haryana Wakf Board's case (supra), the application for demarcation was not decided and the Hon'ble Supreme Court held that the High Court should have decided the application before deciding the main case. In Municipal Council Bawal's case (supra), there were concurrent findings of encroachment and the same does not assist in determining whether demarcation should be carried out or not.
::: Downloaded on - 21/11/2023 20:33:19 :::CIS 1635. It is difficult to agree with the broad submissions made by Mr. G.D.Verma, learned Senior Counsel for the .
appellant/plaintiff that in all cases of alleged encroachment, the learned Court is bound to appoint a Local Commissioner.
36. It was laid down by this Court in Diwakar Dutt versus Ranjit Singh 1997 SLJ 242 that in a suit based on an encroachment, of recourse cannot be had to the Local Commissioner as the Court cannot create evidence in favour of a party. It was observed:-
rt "4. It is too well-known that the Court is not expected to create evidence for any of the parties to the lis. It is for the plaintiff to prove that the defendant has encroached upon his land and he can do so by leading evidence as is permissible under the Evidence Act. The learned trial Court has held that no case has been made out for the appointment of a Local Commissioner to demarcate the suit land and in my considered view, the order does not suffer from any illegality, irregularity or error of jurisdiction. Even otherwise, the order would not amount to a case decided so as to call for interference under Section 115 of the Civil Procedure Code. I am supported in my view by a Division Bench judgment of Punjab and Haryana High Court reported in 1990(2) S.L.J. 636 (Pritam Singh and another vs. Sunder Lal and others). There is, thus, no merit in this revision petition and the same is hereby ordered to be dismissed. No costs."
37. This position was reiterated in Jeet Ram versus Sita Ram 2002 HLJ 1173 and it was observed:-
"11. In Sanku Rango Rao, the plaintiff had filed a suit ::: Downloaded on - 21/11/2023 20:33:19 :::CIS 17 against the defendant alleging that the portion of the land of the plaintiff was encroached on by the defendant. The plaintiff in that case relied upon the demarcation given by a private commissioner. However, the defendant filed an .
affidavit of the same Commissioner along with his written statement stating that the defendant in fact had not made any encroachment on the land of the plaintiff. This affidavit was contrary to the report of the commissioner given to the plaintiff. It is in these circumstances, that the court took a view that the plaintiff could have recourse to the provision of the order 26 Rule 9 of the Code of Civil of Procedure to have the Local Commissioner appointed by the court. The court referred to Indramani Behera v. Ghanshyam Behera (1960 (2) Cut. LT 398, where it was held that in a case where it is open to the party to take a private rt Commissioner for ascertaining the particular fact it would not be necessary for the court to do so since the commissioner's report whether appointed by the court or privately by a party is an item of evidence and not in the matter. Nevertheless, in view of the fact that the same Commissioner has given an affidavit in opposition to his report, the court allowed the appointment of the local Commissioner
12. In John's case the trial court allowed the appointment of a Local Commissioner before the written statement was filed. The contention was raised, in the revision petition that the Local Commissioner could not have been appointed unless the defendant had a chance to file the written statement. This contention was repelled and it was held that such was not the position in law. It was observed that in certain cases, urgent commission may be necessary to avoid any other mischief and the defendant's right to have a local Commissioner cannot be defeated on the ground that he has not filed the written statement.
13. Mr Kuthiala, also refers to Payani Achuthan vs. Chamballikudu Harijan Fisheries Development Co-operative Society and others (AIR 1996 Kerala 276). In this case, the ::: Downloaded on - 21/11/2023 20:33:19 :::CIS 18 plaintiff had filed a suit for permanent injunction seeking restraint on the defendants from encroaching upon the land of the plaintiff. An application for the appointment of a Local Commissioner for measurement and demarcation .
of the land was filed, which was rejected on the ground that neither party had any grievance about the identity of areas in their respective possession and as such it was not necessary to appoint a Commissioner. It is in these circumstances, it was held that in such a situation Local Commissioner ought to have been appointed."
of
38. Similarly, it was held in Naseeb Deen and another versus Harnek Singh, CMPMO No. 208 of 2019, decided on 19.7.2019 that rt the onus is upon the plaintiff to prove the encroachment and when there is no evidence that the plaintiff had approached the revenue authority for the demarcation of the suit land, it is not permissible to appoint the Local Commissioner to demarcate the suit land. It was observed:
"Having heard learned counsel for the parties, this Court is of the view that the impugned order is not sustainable in the eyes of law. It is not in dispute that the application under Order XXVI, Rule 9 of the Code was filed by the plaintiff before the learned Trial Court even before the issues stood framed by the learned Court below. It is the allegation of the plaintiff that the defendants are encroaching /have encroached upon the suit land. It is a settled proposition of law that he who alleges has to prove. Meaning thereby, because it is the contention of the plaintiff that the defendants have encroached upon the suit land or are encroaching upon the same, the onus is upon him to prove his case. There is no material on record to ::: Downloaded on - 21/11/2023 20:33:19 :::CIS 19 demonstrate that the plaintiff, at any stage, has approached the Revenue Authorities, for demarcation of the land in issue. In these circumstances, filing of the application by the plaintiff at the stage when not even issues were framed .
by the learned Trial Court, but obvious was an attempt to create evidence in his favour and this important aspect of the matter has been completely overlooked by the learned Court below. In other words, in the present case, the learned Trial Court has fallen into the trap of the plaintiff by allowing the application so filed by the plaintiff and this has let out a helping hand to the plaintiff to create evidence of in his favour at a stage when not even the issues were framed. 10. Order XXVI, Rule 9 of the Code, inter alia, provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of rt 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 Court.
Meaning thereby that it has to be the satisfaction of the Court that a local investigation is necessary or proper for the purpose of elucidating any matter in dispute. This provision is not a tool which is to be permitted to be used by the parties concerned to create evidence in their favour. This important aspect of the matter has also been lost sight of by the learned Trial Court while passing the impugned order."
39. This position was reiterated in RamNath versus Kuldeep Singh, CMPMO No. 272 of 2019, decided on 25.6.2019 wherein it was observed:
"Order 26, Rule 9 of the Code of Civil Procedure is not a panacea, which can be used by a litigant as a tool whenever the litigant feels that it is not in a position to prove its case.::: Downloaded on - 21/11/2023 20:33:19 :::CIS 20
14. Order 26, Rule 9 of the Code inter alia 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 such investigation and to report thereon to the Court.
15. In my considered view, primarily whenever any order is passed, under Rule 9 of Order 26 of the Code, the satisfaction has to be of the Court as to whether local investigation for the purpose of elucidating any matter in dispute is necessary or not. This satisfaction cannot be of of the plaintiffs or defendants. The plaintiff or the defendant has to stand on its own legs and provisions of Order 26, Rule 9 of the Code cannot be used to garner or gather evidence for them through the Court process. This is exactly rt what has been held by the learned Court below by way of the impugned order. Learned Court has held and rightly so that the onus is upon the plaintiffs to prove their case and the Court cannot lend a helping hand and assist the plaintiffs to prove their case. These findings returned by the learned Court below cannot be said to be illegal as they are in consonance with the spirit of the law with regard to the interpretation of Order 26, Rule 9 of the Civil Procedure Code. Plaintiffs cannot be permitted to have a local commissioner appointed simply because they have not been able to lead cogent evidence to prove their case. That is not the intent of Order 26, Rule 9 of the Code."
40. Therefore, in view of these judgments, the submission that the Court is bound to appoint a Local Commissioner, wherever the allegations of encroachment are made cannot be accepted.
::: Downloaded on - 21/11/2023 20:33:19 :::CIS 2141. The plaintiff had come with a specific case that the defendant had encroached upon his land, and there was no .
evidence of encroachment; hence, the learned Court below had rightly held that the plaintiff is not entitled to an injunction.
42. The learned Trial Court has complied with the directions of the learned First Appellate Court and had appointed a of Local Commissioner to carry out the demarcation; however, demarcation could not be conducted due to the absence of the rt revenue record. There is no infirmity in the procedure adopted by the learned Trial Court. Hence both these substantial questions of law are answered against the appellant.
Final order:
43. In view of the above, the present appeal fails and the same is dismissed. The record of the case be remitted back to the learned Courts below.
Pending miscellaneous applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 21st November, 2023 (Ravinder) ::: Downloaded on - 21/11/2023 20:33:19 :::CIS