Himachal Pradesh High Court
_______________________________________________________________ vs Sita Devi on 14 June, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 236 of 2018 Reserved on 07.05.2019 Decided on: 14.06.2019 .
_______________________________________________________________ Mohinder Kumar .....Petitioner Versus Sita Devi ......Respondent _______________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1Whether approved for reporting? Yes.
_______________________________________________________________ For the petitioner: Mr. Vaibhav Tanwar, Advocate.
For the respondent: Mr. Rohit Sharma and Mr. Anuj Gupta,
r Advocates.
_______________________________________________________________ Chander Bhusan Barowalia, Judge.
The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioner/defendant (hereinafter to be called as "the defendant"), against the order dated 04.05.2018, passed by learned Civil Judge (Jr. Div.), Court No. 6, Shimla, H.P., whereby an application under Order 26, Rule 9 CPC, filed by the defendant for appointment of a Local Commissioner has been dismissed.
2. Briefly stating facts giving rise to the present petition are that the respondent-plaintiff (hereinafter to be called as "the plaintiff") filed a Suit for permanent prohibitory injunction and for mandatory injunction, wherein the plaintiff 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 28/09/2019 23:28:37 :::HCHP 2has claimed the right of passage through the stairs which passes through defendant's land and garden, comprised in Khasra No. 296 and then joins the main road, situated at .
Bhagwati Nagar, Tehsil and District Shimla. The plaintiff has claimed the passage from the said stairs to the main road, which has been constructed by the defendant through Khasra No. 296 on the basis that the stairs have been constructed on the common land, as no partition has taken place amongst the co-sharers. It has been further averred that there was no common path ever constructed on common land, nor it was ever a passage shown in the revenue papers. In April, 2013, the defendant carried out private demarcation of his land, comprised in Khasra No. 296, in which the plaintiff was also associated being a necessary party. In said demarcation, the report was submitted by the revenue officials on 06.01.2017, wherein it has been stated that the stairs in question have been constructed by the defendant on Khasra No. 296. Feeling aggrieved by the said demarcation report, the defendant filed an appeal before Sub Divisional Magistrate (Rural), Shimla, who set aside the order dated 06.01.2014, passed by Assistant Collector 1st Grade, Shimla, on the ground that the instructions given by the Financial Commissioner, under Section 107 of the H.P. Land Revenue Act, i.e. Guidelines of demarcation are not followed by the lower revenue authority. As per the defendant, present boundary dispute can only be decided through the ::: Downloaded on - 28/09/2019 23:28:37 :::HCHP 3 revenue agency by demarcating the plot, building and stairs in question, as such, a Local Commissioner is required to be appointed. Hence the present application.
.
3. In reply to the application, the plaintiff has taken preliminary objection qua maintainability. On merits, it has been averred that the land in question is still unpartitioned amongst the co-sharers and there is no boundary dispute. It has been further averred that at the time when the plot was purchased by the plaintiff there existed a common path from the main road to the plots, comprised in Khata/Khatauni No. 74/106, Khasra No. 512, situated at Muhal Vihar, Pargana Jajhot, Tehsil and District Shimla, H.P. The plaintiff used the said path to only access the plot and has been using the same since the purchase of plot by her. The land over which the defendant has constructed his house, has been assigned Khasra No. 296 and the land on which the plaintiff constructed her house was assigned Khasra No. 297, the common passage which existed on the spot in old Khasra No. 512, after the settlement operation is now lead to Khasra No. 297. The defendant after filing of the present suit entered into an agreement with the plaintiff, wherein existence of old common path and construction of stairs over the said common paths has been admitted by the defendant. Lastly, it has been averred that prejudice shall be caused to the plaintiff, if the present application is allowed and dismissal of the application ::: Downloaded on - 28/09/2019 23:28:37 :::HCHP 4 has been prayed.
4. Learned Court below vide order dated 04.05.2018, dismissed the application, so filed by the defendant, hence the .
present petition.
5. Learned counsel for the petitioner has argued that the order of the learned Court below without appreciating the fact that a Local Commissioner was required to be appointed to tell exact location of the land where the stairs are constructed, dismissed the application filed by the petitioner/defendant. So, the order of the learned Court below be set aside and a Local Commissioner be appointed. On the other hand, learned counsel for the respondent has argued that the order passed by learned Court below is just reasoned and needs no interference and the land was common land, upon which no partition has taken place and the path is kept common.
6. From the record it is clear that as the defendant was obstructing the passage, suit was filed by the plaintiff. The plaintiff is claiming the right of the staircase and path as easementary right, so present dispute cannot be said to be a boundary dispute. It is for the plaintiff to prove that there exist any path or passage over the suit land and she was using it for ingress and egress since long and the right has accrued to her as easementary right, vide sale deed dated 14.07.1992. So, in the given facts and circumstances of the case, no purpose ::: Downloaded on - 28/09/2019 23:28:37 :::HCHP 5 would be served by getting the demarcation of the land as the plaintiff has not disputed that both the disputed Khasra numbers are in the possession of the defendant or there is any .
encroachment etc., which the defendant and the plaintiff want to prove. Accordingly, This Court finds that present dispute is with respect to the obstruction of the passage only and the Court is not to create evidence for the party to prove its case.
7. So, the order passed by the learned Court below needs no interference, as the land is still joint and only dispute is with respect to using of the passage which is joint and there is no boundary dispute. Consequently the present petition sans merit, deserves dismissal and is accordingly dismissed.
Pending application(s), if any, also stands dismissed. No order as to costs. Parties to appear before the learned Court below on 15th July, 2019.
(Chander Bhusan Barowalia) Judge June 14, 2019 (raman) ::: Downloaded on - 28/09/2019 23:28:37 :::HCHP