Himachal Pradesh High Court
Ichhia Sharma And Ors vs Khuddi Devi And Ors on 11 September, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO No. 373 of 2017
Decided on: 11.9.2018
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Ichhia Sharma and Ors. ...........Appellants
Versus
Khuddi Devi and Ors. ..........Respondents
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes
For the Appellant : Mr. B.S. Chauhan, Senior Advocate, with
Mr. Munish Datwalia, Advocate.
For the Respondents : Mr. Surinder Saklani, Advocate, for
respondents No.1, 3 and 4.
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Sandeep Sharma, Judge (oral):
Instant appeal filed under Order 43 Rule 1 (U) of the CPC is directed against the judgment dated 24.6.2017, passed by the learned Additional District Judge-II, Mandi, H.P. (Jogindernagar Court) in Civil Appeal No. 114 of 2016, whereby case has been remanded to the learned trial Court with a direction to appoint the Local Commissioner at the cost of the defendants and obtain demarcation in accordance with law and decide the case afresh after giving opportunity to both the parties.
2. Having heard learned counsel representing the parties and perused material available on record vis-à-vis impugned judgment dated 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 14/09/2018 22:58:23 :::HCHP 224.6.2017, passed by the learned first Appellate court, this Court is persuaded to agree with Mr. B.S. Chauhan, learned Senior Counsel, .
representing the petitioner that impugned remand order passed by the court below is not sustainable being a wholesale remand. Impugned order reveals that learned first appellate Court having appreciated the evidence available on record arrived at a conclusion that demarcation report placed on record by the plaintiff was obtained at the back of the defendants and as such, same could not be taken into consideration by the learned trial Court while adjudicating the controversy at hand.
3. The question that "whether demarcation was conducted associating the defendants or same was conducted at their back" would be decided by this Court later on the basis of material available on record, but even if it is presumed that demarcation was conducted at the back of the defendants, even then in that eventuality, learned first appellate Court had two options; first, to appoint Local Commissioner and get the land demarcated; second, issue direction to the learned trial Court to appoint the Local Commissioner and return the specific finding on that issue, but in the case at hand, learned first appellate Court while issuing direction to the lower court not only directed it to appoint Local Commissioner, rather issued direction to decide the case afresh, which was not permissible.
::: Downloaded on - 14/09/2018 22:58:23 :::HCHP 34. Order dated 11.5.2017, passed by the learned first appellate Court suggests that an application under Order 26 Rule 9 CPC was filed .
by the defendants, but same was dismissed by the learned first appellate Court by observing therein that it is the duty of the party to produce the best evidence before the court and court will not procure the evidence for the parties. Impugned order further reveals that court also observed that appellants had ample opportunity before the learned trial Court to make his defence and since he has not challenged the demarcation report, no fruitful purpose would be served if any Local Commissioner is appointed at this stage. Court below dismissed the application being premature and ordered that in case, this Court deems it necessary, prayer for appointment of Local Commissioner shall be considered and decided at the time of hearing of the appeal.
5. It is quite apparent from the perusal of the aforesaid order that learned appellate court below was aware of the fact that against the demarcation report placed on record by the plaintiff, defendants had filed an appeal before the competent court of law and same was dismissed. Similarly, it appears that though court below while passing impugned judgment took note of Ext.PX i.e. order dated 20.1.2011, passed by the Collector Sub Division Padhar, Mandi in the appeal having been filed by the defendants under the HP Land Revenue Act against the ::: Downloaded on - 14/09/2018 22:58:23 :::HCHP 4 order of Assistant Collector Second Grade in Missal No. 22/08 decided on 31.5.2008, but still proceeded to return a finding that defendant Hukam .
Chand, never came to be issued notice at the time of demarcation conducted on the spot at the behest of the plaintiffs, which finding is totally contrary to the record. Impugned order further discloses that learned first appellate court also took note of the Ext.PW4/A i.e. order dated 31.5.2008 passed by the Assistant Collector, IInd Grade, wherein it stands recorded that despite issuance of notice, defendant Hukam Chand failed to associate himself with demarcation proceedings. It also stands recorded in the aforesaid order that defendant Hukkam Chand in his statement stated before the revenue authority that he had acquired prior intimation with regard to the demarcation from the notice affixed on his house He also stated that though demarcation was conducted in his absence, but demarcation has been conducted strictly on the basis of revenue record and he has no objection qua the same.
6. Having carefully perused documents Ext.PX and Ext.PW4/A, this Court is in agreement with contention of learned senior counsel representing the petitioner that in view of the aforesaid evidence available on record, there was no requirement, as such, for the learned first appellate Court to remand the matter back to the learned trial Court with a direction to appoint Local Commissioner. Once it stood proved on ::: Downloaded on - 14/09/2018 22:58:23 :::HCHP 5 record that defendant was afforded opportunity to associate himself at the time of demarcation and he in appeal having been preferred by him .
had admitted factum with regard to his having no objection to the demarcation report given by the Kanungo, it was not open for the first appellate Court to remand the matter back to the learned trial Court with a direction to appoint the local commissioner. Moreover, as stands duly proved on record, order passed by the Assistant Collector, 2nd Grade, was further upheld by the Sub Divisional Collector in the appeal having been preferred by the defendants and as such, court below had no occasion to issue direction for appointment of local commissioner to conduct demarcation.
7. It is also not in dispute that till date, no appeal, whatsoever, has been filed by the defendants against the order passed by the Sub Divisional Collector in the appeal having been filed by him and as such, order passed by the Assistant Collector, IInd grade, has attained finality.
8. Leaving everything aside, careful perusal of order 26 Rule 14 (3) CPC, clearly reveals that court cannot appoint new commission without setting aside earlier report of the local commissioner, but in the case at hand, perusal of impugned judgment passed by the learned first appellate court nowhere suggests that demarcation report placed on record by the plaintiffs was ever set-aside by him before issuing direction ::: Downloaded on - 14/09/2018 22:58:23 :::HCHP 6 for conducting fresh demarcation and as such, on this count also, impugned order passed by the court below deserves to be set-aside.
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9. Consequently, in view of the detailed discussion made herein above, appeal is allowed and impugned judgment passed by the learned first appellate Court dated 24.6.2017 in Civil Appeal No. 114 of 20156 is quashed and set-aside and the matter is remanded back to the learned first appellate Court to decide the appeal afresh on the basis of material available on record, especially Ext.PX and Ext.PW4/A. Needless to say, any observations made hereinabove shall not be construed to be a reflection on the merits of the main appeal before the court below and shall remain confined to the disposal of this case alone.
11th September, 2018 (Sandeep Sharma),
Judge
manjit
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