Himachal Pradesh High Court
Jaya Nand Sharma vs Basant Lal Rajta on 13 June, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
FAO No. 66 of 2021 with
FAO No. 16 of 2022
Decided on: 13.6.2023
1. FAO No. 66 of 2021
Jaya Nand Sharma .....Appellant.
Versus
Basant Lal Rajta .....Respondent.
2. FAO No. 16 of 2022
Basant Lal Rajta .....Appellant.
Versus
Jaya Nand Sharma .....Respondent.
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
For the parties : Mr. Bhupender Gupta and Mr.
Jiya Lal Bhardwaj Senior
Advocates with Mr. S. Partha
Swami, Advocate, for the
appellant in FAO No. 66 of 2021
and for the respondent in FAO
No. 16 of 2021.
1
Whether the reporters of the local papers may be allowed to see the Judgment?
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2
Mr. Y.P. Sood, Advocate, for the
respondent in FAO No. 16 of
.
2022 and for the appellant in
FAO No. 66 of 2021.
Vivek Singh Thakur, Judge (Oral)
These appeals have been preferred by both parties Sharma, whereby against impugned judgment dated 18.02.2021, passed in Civil appeal No. 40-S/13 of 2019, titled Basant Lal Rajta Vs. Jaya Nand judgment and decree dated 20.07.2019, passed in Civil Suit No. 379/1 of 2018/2002, titled Jaya Nand Sharma Vs. Basant Lal Rajta by Civil Judge, Court No.3, Shimla has been set-aside and case has been remanded back to the Trial Court to decide the same afresh in view of the observations made in the impugned judgment and in accordance with law, after giving proper opportunities to the parties.
2. Admittedly, it is not disputed that in the present case the issue was not related to encroachment by either party.
Plaintiff has filed a suit for declaration, permanent prohibitory injunction and mandatory injunction seeking declaration that sanction orders, approving the maps/ plans of the defendant by ::: Downloaded on - 13/06/2023 20:31:56 :::CIS 3 the concerned authorities, are illegal, null and void and inoperative against the rights of the plaintiff, with prayer for .
decree of mandatory injunction as well as permanent prohibitory injunction with respect to construction raised or to be raised by the defendant. Whereas, claim of the defendant is that construction raised by him is legal, valid and in consonance with
3. to duly sanctioned and approved plans/maps.
It has been pointed out that the District Judge instead of touching the real issues, framed for determining the dispute between the parties, has observed that encroachment can only be determined by way of demarcation and both parties have failed to examine any Revenue Officer, who gave demarcation report relied upon by the parties. Whereas, the claim of the defendant is that Revenue Officer Sh. Prem Singh, Kanungo has been examined as DW-2 and the claim of the plaintiff is that demarcation report relied upon by him has also been proved on record in accordance with law by proving the order passed by Assistant Collector Ist Grade as Ext. PW-8/A, whereby the demarcation report relied upon by plaintiff has been affirmed.
::: Downloaded on - 13/06/2023 20:31:56 :::CIS 44. It is the further contention of parties that in para-41 of the impugned judgment, District Judge has made certain .
observations, but without concluding the same to the logical end and made basis such observation for remanding the case to the Trial Court, whereas, according to both parties, there was sufficient material on record to decide the appeal on its own merit, instead of remanding the same by making observations, which were either contrary to record or not warranted for remanding the case.
5. In view of aforesaid admitted facts and circumstances, I am of the considered view that matter requires to be decided by the District Judge on its own merit but without being influenced by any observations made in the impugned judgment or by this Court in the present order. Accordingly, impugned judgment is set-aside and case is remanded to the District Judge to decide the appeal on its own merit by taking into consideration entire material/evidence in accordance with law.
6. As the case is very old and as requested by the parties also, District Judge is directed to decide the appeal as expeditiously as possible, preferably on or before 13.10.2023.
::: Downloaded on - 13/06/2023 20:31:56 :::CIS 57. Parties, through counsel, are directed to appear before the District Judge on 26.06.2023.
.
8. Records of the Courts below be transmitted to District Judge immediately by ensuring that the same is available with the said Court before the date fixed for presence of parties.
9. Parties are permitted to produce/use copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the concerned Court/authorities concerned, and the said Court/authorities shall not insist for production of a certified copy but if required, may verify passing of the order from Website of the High Court.
( Vivek Singh Thakur ) Judge June 13, 2023 (vs) ::: Downloaded on - 13/06/2023 20:31:56 :::CIS