Himachal Pradesh High Court
Jai Chand & Another vs Kesari Devi And Others on 28 June, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.300 of 2022 Date of Decision: 28.6.2023 .
_______________________________________________________ Jai Chand & another .......Petitioners Versus Kesari Devi and others ... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioners: Mr. B.S.Chauhan, Senior Advocate with Mr. Munish Datwalia, Advocate.
For the Respondents: Mr. Ravinder Singh Chandel, Advocate..
_______________________________________________________ Sandeep Sharma, Judge(oral):
Being aggrieved and dissatisfied with order dated 8.6.2022 passed by learned Civil Judge, Court No.4, Hamirpur, District Hamirpur, H.P., whereby an application under Order 26 Rule 9 CPC, having been filed by the petitioners-plaintiffs (hereinafter referred to as the plaintiffs) for appointment of Local Commissioner came to be rejected, petitioners-plaintiffs have approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to set-aside aforesaid order and appoint Local Commissioner, as prayed for, in the application filed under Order 26 Rule 9 CPC 1 Whether the reporters of t he local papers may be allowed to see the judgment?::: Downloaded on - 28/06/2023 20:37:36 :::CIS 2
2. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the order impugned in the instant proceedings, this Court finds no illegality and .
infirmity in the same and as such, no interference is called for.
3. Petitioners-plaintiffs filed suit under Sections 9, 26 order 7 Rule 1 CPC and Sections 34, 38, 39 of Specific Relief Act for declaration with consequential relief of permanent prohibitory injunction that the plaintiffs alongwith other co-sharers are owners in possession of the land comprised in Khata No.25min, Khatauni No.26 min, Khasra No.1005/77, area 1K-12M, as per jamabandi for the year 2009-2010 situate at Tika Doh, Tappa Mewa, Tehsil Bhoranj, District Hamirpur, H.P. In the suit referred above, plaintiffs averred that though defendants have no right and title over the suit land but yet efforts are being made to interfere in the possession of the plaintiffs and as such, they be restrained by way of permanent prohibitory injunction from interfering over the suit land and raising construction in any manner.
4. Aforesaid suit filed by the plaintiffs came to be resisted by the respondents-defendants by filing written statement, wherein though they never claimed themselves to be owner in possession of the suit land, but stated that they are in possession of the suit land on the strength of compromise made by the plaintiffs in case ::: Downloaded on - 28/06/2023 20:37:36 :::CIS 3 No.103/I/265-II, dated 22.08.1950, whereby predecessor of the plaintiffs late Sh. Inder Singh being one of the accused in a case filed by Lachhman, co-sharers or predecessor-in-interest of the present .
defendants had agreed to provide one karam wide passage in front of the ancestral house of defendants towards its western side, by leaving 1 ½ karam courtyard on south western corner of house and two karam from north western corner of house upto cattle shed.
5. On the basis of aforesaid pleadings, learned Court below framed issued. After framing of issues, plaintiffs filed an application under Order 26 Rule 9 CPC in the year 2016 for appointment of some revenue expert as Local Commissioner to demarcate the suit land, but such application of him was not considered at that stage. It is only after closure of evidence of both the parties, application came to be considered by the court below. Vide order impugned in the instant proceedings, Court below rejected the application on the ground that court has already framed issue No.2 with regard to encroachment made by the defendants on the land of the plaintiffs and onus to prove the same is on the plaintiffs. Court while passing order impugned in the instant proceedings placed reliance upon the judgment passed by this Court in Liaquat Ali vs. Amir Mohammad & others, Latest HLJ 2016(HP) 831 and recorded that allowing application at this stage would amount to collection of evidence on behalf of the ::: Downloaded on - 28/06/2023 20:37:36 :::CIS 4 plaintiffs. In the aforesaid background, plaintiffs have approached this Court in the instant proceedings.
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6. Having carefully perused pleadings adduced on record by the respective parties, especially plaint, this Court has no hesitation to conclude that there is no boundary dispute, if any, interse parties.
Specific allegation of the plaintiffs is that respondent-defendants have encroached upon their land, whereas defendants while not claiming themselves to be owner in possession of the suit property have attempted to justify their possession on the suit land on the ground that in compromise arrived interse predecessor- in- interest of plaintiffs some land was left to the defendants for passage.
7. Mr. B.S.Chauhan, learned Senior Counsel representing the petitioners while making this Court to peruse the written statement filed by the defendants, vehemently argued that once there is admission on the part of the defendants that they are in possession of the land, which admittedly belongs to plaintiffs, no prejudice, if any, shall be caused to either of the parties, if Local Commissioner is appointed to ascertain the extent of encroachment. However, this Court finds no merit in the aforesaid contention of learned Senior counsel representing the petitioners for the reason that once there is no denial, if any, with regard to encroachment/unauthorized possession on the suit land by defendants and case filed by the ::: Downloaded on - 28/06/2023 20:37:36 :::CIS 5 petitioners is for possession by way of demolition, there is otherwise no requirement to appoint Local Commissioner. It is not a case where extent of encroachment is to be ascertained, rather allegation of the .
plaintiffs is that on the suit land unauthorized construction has been carried out by the defendants. Since, specific details with regard to suit land have been already given in the body of the plaint and it has been admitted by the respondents that they are in possession of the same but on the basis of the compromise, learned court below would decide the issue on the basis of evidence already led on record.
Whether the respondents/defendants are in possession of the land on the basis of compromise is a question to be decided by Court below on the basis of evidence, if any, led on record by the respondents/defendants. In case respondents/defendants fail to establish on record compromise, if any, arrived interse parties, case of the petitioners/plaintiffs is otherwise bound to succeed.
8. Consequently, in view of the above, this Court finds no merit in the present petition and accordingly, same is dismissed alongwith pending applications, if any.
(Sandeep Sharma), Judge June 28 2023 (shankar) ::: Downloaded on - 28/06/2023 20:37:36 :::CIS