Himachal Pradesh High Court
Smt. Parveen vs Bal Krishan And Others And A Judgment ... on 30 September, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30th DAY OF SEPTEMBER 2021
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL MISC. PETITION MAIN (ORIGINAL) No. 57 of 2017
Between:-
1. SMT. PARVEEN,
D/O SH. SABIR ALI,
R/O DEVI NAGAR,
PAONTA SAHIB,
DISTRICT SIRMAUR,
HIMACHAL PRADESH
2. SMT. NASEEM AKHTAR,
D/O SH. SABIR ALI,
R/O VILLAGE CHIRANWALI,
TEHSIL NAHAN, DISTRICT
SIRMAUR, HIMACHAL PRADESH
......PETITIONERS
(BY SH. KARAN SINGH KANWAR, ADVOCATE)
AND
YASIN,
S/O SH. SHARIF,
R/O VILLAGE AND POST OFFICE
MOGINAND, TEHSIL NAHAN,
DISTRICT SIRMAUR,
HIMACHAL PRADESH
......RESPONDENT
(BY SH. BIMAL GUPTA, SENIOR ADVOCATE WITH
SH. GURINDER SINGH PARMAR, ADVOCATE)
Whether approved for reporting? 1 Yes.
This petition coming on for hearing this day, the Court
passed the following:
1
Whether reporters of print and electronic media may be allowed to see the order?
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2
ORDER
Learned Trial Court vide order dated 27.05.2016, dismissed plaintiff's objections to the report of .
Local Commissioner and confirmed the demarcation report.
This order has been assailed by the legal representatives of the deceased plaintiff in the instant petition filed under Article 227 of the Constitution of India.
The parties are hereinafter referred to as they were before the learned Trial Court.
2. Facts:-
2(i). Suit for permanent injunction for restraining the defendant from cutting, digging, raising construction or interfering over the suit land comprised in Khata/Khatauni No.10/18 min, Khasra No.605/533, measuring 0-15 Bigha of Mouza Moginand, Tehsil Nahan, District Sirmour, H.P., was instituted by the plaintiff. The plaintiff pleaded that he was absolute owner in possession of the suit land. The defendant was a complete stranger to it, having no right, title, interest or concern with the suit land.
The defence taken was that the construction raised by the defendant existed over Khasra Nos.771/604/358 abutting to the suit land. The averments made in the plaint were denied.::: Downloaded on - 31/01/2022 23:09:17 :::CIS 3
2(ii). During pendency of the suit, the plaintiff placed on record a report of demarcation carried out by the Assistant Collector 2nd Grade on 08.02.2011. The .
demarcation report stated that the defendant had encroached over Khasra No.605/533 (suit land) to the extent of 0-0-6 Biswansi.
2(iii). Learned Trial Court appointed a Local Commissioner on 31.03.2012 to demarcate the suit land. In compliance to the order, the Local Commissioner, i.e. Tehsildar, Nahan, submitted the demarcation report dated 23.12.2014 alongwith enclosures. During demarcation, statements of the parties were also recorded. The plaintiff in his statement, inter alia, stated that he was though satisfied with the demarcation, but at the same time, requested for demarcating the suit land from the backside of defendant's house. In his report dated 23.12.2014, the Local Commissioner gave reasons for declining such request of the plaintiff and concluded that the defendant had not encroached over the suit land.
2(iv). The plaintiff preferred objections to the report of Local Commissioner. The gist of his objections was that:-
(a) No pucca points were taken or fixed during demarcation.::: Downloaded on - 31/01/2022 23:09:17 :::CIS 4
(b) No statement regarding pucca points was recorded.
(c) As per report of the Local Commissioner, a Kuhal (narrow water channel) was considered as .
a pucca point. However, on the spot, no kuhal was in existence.
(d) Kuhal cannot be considered a pucca point as its dimensions vary from place to place.
(e) The plaintiff had requested the Local Commissioner to demarcate the land from old pucca houses. This request went unheeded. Had the demarcation been conducted as requested by the plaintiff, then, the encroachments made by the defendant over the suit land would have figured in the demarcation report.
The plaintiff prayed in these objections for summoning the Local Commissioner for the purpose of his cross-examination and for setting aside the demarcation report.
2(v). On considering the objections filed by the plaintiff, learned Trial Court dismissed the same and confirmed the demarcation report of the Local Commissioner vide order dated 27.05.2016. Aggrieved against this order, the petitioners (legal representatives of deceased plaintiff) have preferred instant petition.
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Sh. Karan Singh Kanwar, learned counsel for the petitioners/plaintiff argued that the learned Trial Court .
fell in error in rejecting the objections filed by the plaintiff without giving due opportunity to the plaintiff to lead evidence. In his objections, the plaintiff had prayed for calling the Local Commissioner for his cross-examination.
The prayer was declined. Without giving opportunity to the plaintiff to cross-examine the Local Commissioner, the demarcation report of the Local Commissioner could not be confirmed. Prejudice, therefore, has been caused to the plaintiff because of the impugned order.
Sh. Bimal Gupta, learned Senior Counsel for the respondent/defendant contended that in terms of the impugned order, learned Trial Court had only confirmed the report of the Local Commissioner. The report was yet to be duly proved in evidence in accordance with law. The prayer of the plaintiff for cross-examination of the Local Commissioner was premature at this stage. In support of these submissions, reliance was placed upon a judgment passed by the Co-ordinate Bench of this Court on 08.04.2016 in CMPMO No.88/2014, titled Dharam Pal Versus Bal Krishan and others and a judgment passed by the Allahabad High Court in Ram Chandra & Anr. Versus ::: Downloaded on - 31/01/2022 23:09:17 :::CIS 6 District Judge, Gorakhpur & Ors., 2000 (1) CCC 468 (All).
4. Observations:-
.
Having heard learned counsel for the parties and on going through the record, I am of the considered view that the impugned order deserves to be set aside for the following reasons:-
4(i). The plaintiff had objected to the report of the Local Commissioner on various grounds. The prayer was made in the objections for setting aside the demarcation report and to call the Local Commissioner for the purpose of his cross-examination. A Division Bench of the Calcutta High Court in AIR 1957 Calcutta 90, titled Gourhari Das and another v. Jaharlal Seal and another, in context of Order 26 Rule 14 of the Code of Civil Procedure, held that the Commissioner, whose report is under consideration if proposed to be examined by either of the parties, should be called. If after examining the Commissioner and cross-
examining him by either party, the Court finds that materials are available either to accept the report on the face of it or to remit the report either to the old Commissioner or to a fresh Commissioner, the Court will proceed to do the same. If, however, the Court finds, it necessary that further materials should be made available, ::: Downloaded on - 31/01/2022 23:09:17 :::CIS 7 it may in an exceptional case allow fresh evidence as to the valuation (in dispute therein) being put before the Court.
4(ii). AIR 2000 Himachal Pradesh 45, titled Om .
Parkash v. Ved Parkash and others, was a case, where the objections to the report of the Local Commissioner were dismissed. The report was affirmed and final decree was passed. The matter reached this Court. While deciding the matter, it was observed that no opportunity was given to the defendant to lead evidence in support of his objections to the report of the Local Commissioner. His request to summon the Local Commissioner was not acceded to. In view of these two grounds, the appeal filed by the defendant was allowed. Relevant paras from the judgment are as under:-
"18. The case was reheard on 9-7-1997 and orders were pronounced on 11-7-1997, whereby the objections were dismissed, the report of Local Commissioner was affirmed and a final decree in terms thereof was passed.
19. A reading of the orders passed by the learned trial Court since after the receipt of the report of the Local Commissioner till 11-7-1997, the date on which final decree was passed brings out the following facts:-
(1) No opportunity was given to the defendant to lead evidence in support of his objections to the report of the Local Commissioner.
(2) Even his request made to summon the Local Commissioner was not acceded to. In fact the application made by defendant No. 1 in this behalf on 5-5-1997 was never disposed of and without deciding the said application, the learned trial Court had proceeded to dismiss the objections.
20. The Calcutta High Court in Gourhari Dass's case (supra) has held that the examination of the Commissioner, when the report submitted by him is being questioned is essential, if any of the parties requires it. The omission by the Court to ::: Downloaded on - 31/01/2022 23:09:17 :::CIS 8 examine the Commissioner was not correct and that the Court ought to have allowed the Commissioner to be called and then to proceed with the case in accordance with law. The High Court, therefore, after allowing the appeal set aside the order of the trial Court and remitted the case for re-hearing according to law.
21. In the present case as well, the learned trial Court failed to .
call the Commissioner and examine him though a specific prayer was made in this regard by defendant No. 1 vide his application made on 5-5-1997. The ratio laid down by Calcutta High Court with which 1 am in full agreement, applies to the facts of the present case.
22. Resultantly, both the appeals are allowed. The judgment and decree dated 11-7-1997 of the learned trial Court as affirmed in appeals by the learned District Judge vide judgments and decrees dated 11-11-1997, are set aside and the ease is remanded to the learned trial Court (Senior Sub Judge, Nahan), for disposal afresh in accordance with law and in the light of the observations made above. No orders as to costs."
4(iii). In (2018) 4 SCC 369, titled Municipal Council, Bawal and another Versus Babu Lal and others, it has been observed by the Hon'ble Apex Court that in case the cross-examination of the author of the demarcation report is not requested, then no objections on that count can be taken later on by the parties raising that ground. Relevant para of the judgment is as under:-
"3. In the impugned judgment, the High Court has entered a finding based on the report that it was the appellants who had encroached upon the part of the land of the plaintiffs without acquiring the same. Further, it was held that: (Babu Lal case, SCC OnLine P&H para 5) "5. ... It was the stand of the defendant in the written statement that the land measuring 1 kanal on the western-southern side was owned by one Satbir Singh. The Plaintiffs have purchased the said 1 kanal from Satbir Singh. Therefore, the defendants cannot deny the title of the plaintiffs over such land. The Tahsildar was appointed as Local Commissioner to demarcate the suit land. Such demarcation has been carried out in accordance with law and in the presence of the representative of the Municipal Council. The ::: Downloaded on - 31/01/2022 23:09:17 :::CIS 9 Tahsildar was not cross-examined in respect of the process of demarcation."
4(iv). In Latest HLJ 2009 (HP) 959, titled Gopal Dass and others Versus Bismanchali, the substantial .
question of law No.2 formulated in the second appeal pertained to affording an opportunity to parties to cross-
examine the Local Commissioner. The question of law was as under:-
"2. When the Local Commissioner has submitted the mode of partition for the joint property without making a reference as envisaged under the Code of Civil Procedure, could such report be accepted at its face value by rejecting the objections made by the respective parties to the said report without affording any opportunity either to cross examine the Local Commissioner or for leading evidence to show that the mode suggested is wholly inequitable, illegal, erroneous and perverse?"
The question of law was decided following the judgment reported in Om Parkash's case, supra. It was held that the reasoning of the learned First Appellate Court that opportunity was not asked for and hence cannot be granted, was unacceptable. It was the duty of the Court to grant sufficient opportunity to the parties to lead evidence in support of their respective objections. The Court was bound in law to provide an opportunity to the defendant (therein) to lead evidence in support of the objections filed to substantiate that the report was either not in concord or it deserves to be varied, set aside, altered or changed. The appeal was allowed, holding that examination of the ::: Downloaded on - 31/01/2022 23:09:17 :::CIS 10 Commissioner was required and that sufficient opportunity was not granted to the appellants to lead evidence against the report.
.
4(v). In the instant case, learned Trial Court after holding following in para 4 of the impugned order, dismissed the objections of the plaintiff and confirmed the demarcation report of the Local Commissioner:-
"4. The Local Commissioner after recording the presence of the parties has clearly stated that he took fixed points after verification from the revenue record and measured fixed points and after to be correct as per record has conducted the demarcation. He has also submitted request made by the applicant that demarcation be done from the back side of the Abadi, but he did not accept the request because there was no fixed points nearby and he chose to take the nearest fixed points. Furthermore, New Mahal had started and it was not possible to combine two different documents and read them together to demarcate the suit land as it would have certainly given way to errors if demarcation was taken as per request of the applicant. Hence, he did not accept the request and chose fixed points which were nearest to the spot in dispute."
No opportunity was granted to the plaintiff to lead evidence in support of his objections. The plaintiff's prayer to summon the Local Commissioner for cross-
examination with respect to his demarcation report was not acceded to. In such circumstances, the contention of the respondent/defendant that the plaintiff was at liberty to summon the Local Commissioner at the stage of evidence and that under the impugned order, learned Trial Court had only accepted the demarcation report of the Local Commissioner by simply taking it on record, is not correct.
::: Downloaded on - 31/01/2022 23:09:17 :::CIS 11Reliance placed by the respondent upon 2000 (1) CCC 468 (All) is misplaced. The tone and tenor of the impugned order is very specific in dismissing the objections on merits and .
in confirming the report of the Local Commissioner.
Judgment passed in CMPMO No.88/2014 is on the basis of facts of that case and is not applicable to the instant case.
Learned Trial Court vide impugned order, had dismissed plaintiff's objections and 'confirmed' the demarcation report on merits without calling for the evidence. Plaintiff was not permitted to lead evidence in that regard. Demarcation report was confirmed without summoning the Local Commissioner to face cross-
examination by the parties. In view of legal position discussed above, the order passed by the learned Trial Court cannot be sustained.
For the foregoing reasons, the instant petition is allowed. The impugned order dated 27.05.2016 (Annexure P1), passed by the learned Civil Judge (Senior Division), Sirmaur District at Nahan, is set aside. Learned Trial Court shall decide the objections preferred by the petitioners to the demarcation report of the Local Commissioner afresh, in accordance with law, keeping in view the above observations. The parties, through their learned counsel, ::: Downloaded on - 31/01/2022 23:09:17 :::CIS 12 are directed to remain present before the learned Trial Court on 18.10.2021.
It is made clear that observations made above .
are confined only to the adjudication of the instant petition and shall have no bearing on the merits of the matter.
Learned trial Court shall decide the civil suit without being influenced by above observations.
With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.
Jyotsna Rewal Dua
September 30, 2021 Judge
Mukesh
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