Himachal Pradesh High Court
Bali Ram vs Mela Ram And Anr. on 28 August, 2002
Equivalent citations: AIR2003HP87
Author: M.R. Verma
Bench: M.R. Verma
JUDGMENT M.R. Verma, J.
1. This appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant/plaintiff (hereafter referred to as 'the plaintiff) against the Judgment and decree dated 24-6-1999 passed by the learned District Judge, Bilaspur whereby the judgment and decree dated 2-6-1992 passed by the learned Sub Judge, Ghumarwin dismissing the suit of the plaintiff, have been affirmed.
2. Brief facts leading to the presentation of this appeal are that the plaintiff instituted a suit for permanent prohibitory injunction against the respondent/defendant (hereafter referred to as 'the defendant) restraining him from interfering In the suit land comprising Khewat/Khatauni Nos. 61 min/67 min, Khasra No. 151/1, measuring 1-3 Bighas, situate in village Matyal, Tehsil Ghumarwin, District Bilaspur. The case of the plaintiff as made out in the plaint is that he along with the pro forma respondent/defendant is owner in possession of the suit land having a residential house, cow-shed and courtyards on the suit land and their possession as such is since time immemorial. The defendant Illegally got allotment of two Biswas of Nautor land out of the adjoining Khasra No. 251/246 though he was not eligible for such allotment. Thereafter the defendant started interfering with the possession of the plaintiff and the pro forma defendant over the suit land by putting raw material on the suit land and by felling the trees standing thereon and further threatened to raise construction by digging the courtyard of the cow-shed of the plaintiff. The defendant did not desist from his acts despite requests. Hence, the suit.
3. The defendant contested the suit. In the written statement he raised preliminary objections regarding maintainability and valuation of the suit, jurisdiction of the Court, non-joinder and misjoinder of necessary parties, want of locus standi, estoppel and resjudicata. On merits, it was claimed that the suit land is not in possession of the plaintiff nor there exist any cow-shed, residential house or courtyard. It has further been claimed that the suit land is situate between the cattle shed of the defendant and the land allotted to the defendant and there exists a path on a part of the suit land and the remaining suit land was used by the defendant as 'Bartan' and he had constructed a cow-shed and a house on land Khasra No. 151/2. Thus, the claim of the plaintiff has been denied.
4. The plaintiff filed replication thereby controverting the defence taken by the defendant and re-affirmed his claim.
5. On the pleadings of the parties, the learned trial Judge framed the following issues :--
"1. Whether the plaintiff is owner in possession over the suit land as alleged? OPP
2. Whether the defendants are interfering with the possession of plaintiff over the suit land as alleged? OPP
3. Whether the plaintiff is entitled for possession of the suit land if found to be dispossessed during the pendency of the suit as alleged? OPP
4. Whether the suit is not maintainable as alleged? OPD
5. Whether this Court has no jurisdiction to entertain and try the suit as alleged? OPD
6. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction as alleged? OPD
7. Whether the suit is bad for non-joinder and mis-joinder of necessary parties as alleged? OPD
8. Whether the suit is barred by principle of res judicata as alleged? OPD
9. Whether the plaintiff is estopped to file the suit as alleged? OPD
10. Relief."
6. After recording the evidence and hearing the parties, the learned trial Judge decided issue No. 1 partly in favour of the plain tiff and partly against him and held issue No. 3 as redundant. Issue No. 2 was held against the plaintiff and the remaining issues were decided against the defendant. In view of the findings so recorded, the suit was dismissed vide judgment and decree dated 2-6-1992. Being aggrieved, the plaintiff preferred an appeal which was dismissed by the learned District Judge, Bilaspur by the impugned judgment and decree. Hence this appeal.
7. I have heard the learned counsel for the parties and have also gone through the records.
8. It may be pointed out at the very outset that while deciding issue No. 1, the trial Court held that the plaintiff is in possession of a part of the suit land, excluding the house of the defendant. Thus, the Issue regarding ownership and possession has been partly decided in favour of the plaintiff. Similarly, the lower appellate Court, vide impugned judgment, held that a part of the suit land is in possession of the plaintiff. Both the Courts have further recorded the concurrent findings that the defendant is not interfering with the possession of the plaintiff over the suit land. That is why, the suit of the plaintiff for permanent injunction restraining the defendant from interfering with his possession over the suit land has been dismissed.
9. The concurrent findings of fact recorded by both the Courts below to the effect that the defendant is not interfering with the possession of the plaintiff over the suit land are evidently unreasonable and not supported by the material on record. It is unambiguously clear from the pleadings of the defendant read with other evidence on record that he has all the intentions to interfere and is interfering with the possession of the plaintiff over that part of the suit land which is in his possession. It is so because the defendant, in his written statement, has denied the possession of the plaintiff over the suit land as a whole and has claimed that part of land khasra No. 151/1 is used as a path by the villagers and the remaining land is used by him as Bartan. It is, thus, implicit in the defence taken by the defendant that he is claiming a path on a part of the suit land and remaining portion of it as his Barton. This challenge to the Claim of the plaintiff constitutes a challenge even to his claim regarding that part of the suit land which, according to both the Courts below, is in possession of the plaintiff. When this pleading of the defendant is read with the statements of the plaintiff (PW-1), Ram Chand (PW-2) and Sunder Ram (PW-3), it is crystal clear that the defendant is interfering with the possession of the plaintiff over the portion of the suit land which is in possession of the plaintiff. Therefore, the findings recorded by the Courts below that the defendant is not interfering with the possession of the plaintiff are contrary to the pleadings and evidence on record and cannot be sustained being unreasonable.
10. The other aspect of the case is that the plaintiff has been found in possession of a part of the suit land, which he is using as his cow-shed and as his Bartan. In view of the above findings, the relief claimed by him could not have been denied to him in its entirety. Therefore, the dismissal of his suit simply means just to dispose of the case and not to decide it and thereby perpetuate a dispute which deserved to be finally decided so that no cause for future disputes and litigation remained alive.
11. A perusal of the Tatimas Ex. PW-4/A produced by the plaintiff and the Tatimas Ex. DW-3/A produced by the defendant are incapable of being reconciled. The suit land comprising khasra No. 151/1 has been shown in Ex. PW-4/A on the extreme eastern side of the entire Abadi land, whereas the location of this Khasra number has been shown almost in the center of the entire Abadi land in Tatimas Ex. DW-3/A. Thus, Tatimas Ex. DW-3/A does not appear to have been prepared with reference to the suit land but as per the specifications given by the defendant, whereas to clearly show the spot position, the Tatimas ought to have been prepared on the basis of the specified suit land i.e. khasra No. 151/1 as shown in Tatimas Ex. PW-4/A. Thus, the confusion about the identity of the suit land has been created not because of the fault of either of the parties, but because of the manner adopted by Partap Singh, Kanungo (DW-3) in preparing the Tatima Ex. PW-3/A. The parties could not get prepared Tatimas in the desired manner but have to be satisfied with the Tatimas as prepared by the revenue officials. Thus, for the confusion which has cropped in because of the Tatimas, parties cannot be held responsible and should not suffer for it.
12. It may also be pointed out that the lower appellate Court appears to have given preference to the Tatimas prepared by DW-3 for the reason that he is a Kanungo whereas PW-4 Amar Singh, who has prepared Tatimas Ex. PWL4/A is a Patwari. This reasoning of the lower appellate Court cannot be accepted for the reason that when Tatimas Ex. DW-3/A was prepared by DW-3, he himself was a Patwari and not a kanungo. In view of the confusion created, it was necessary for the just and final decision of the dispute between the parties that the proper picture regarding possession over the land khasra No. 151/1 as depicted in Tatimas Ex. PW-4/A was brought on record. It is not always possible to bring the exact position of the spot on record by way of oral evidence or evidence other than the documents prepared after investigation on the spot. That, however, has not been done in this case.
13. Rule 9 of Order 26 of the Code of Civil Procedure (hereafter referred to as 'the Code'), empowers the Court to issue commission to make local investigation which may be required for the purpose of elucidating any matter in dispute. Though the object of the local investigation is not to collect evidence which can be taken in the Court, but the purpose is to obtain such evidence, which from its peculiar nature, can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court. To issue a commission under Rule 9 of Order 26 of the Code, it is not necessary that either or both the parties must apply for issue of commission. The Court can issue local commission suo motu, if, in the facts and circumstances of the case, it is deemed necessary that a local investigation is required and is proper for the purpose of elucidating any matter in dispute. Though exercise of these powers is discretionary with the Court, but in case the local investigation is requisite and proper in the facts and circumstances of the case, it should be exercised so that a final and just decision is rendered in the case.
14. In Braham Datt v. Prem Chand, (2000 (1) SLJ 431), this Court held as under :--
"14. Be it stated that whatever was within the power of the plaintiff to show that a piece of land owned by him has been encroached upon by the defendants, has been done by him. If the revenue agency has prepared a report which may not be according to rules, the case of the plaintiff could not have been thrown out simply for the lapses committed by the revenue agency/Tehsildar in carrying out the demarcation. No amount of oral evidence which could be led by the plaintiff, would have established the identity of the encroached land. To identify it the only way was to get it demarcated. The plaintiff adopted that course and nothing more could have been done by him. In case the appellate Court entertained any doubt about the correctness of the demarcation and the report, the prayer of the plaintiff for appointment of Local Commissioner for demarcation of the suit land to find out the extent of the encroachment, if any, ought to have been acceded. It is the duty of the Courts to ensure that substantial justice is delivered to the parties and that for the mistake of any Government agency in demarcating the land, a party should not be deprived of the justice on merits by taking recourse to technicalities.
15. Once the learned District Judge had entertained doubt about the correctness of the demarcation given by the Tehsildar, he ought to have appointed a Local Commissioner to demarcate the disputed area to find out whether there was any encroachment and if so, to what extent, instead of proceeding to dismiss the suit. The impugned judgment and decree, therefore, cannot be sustained."
15. In the case in hand, as already stated, the preparation of the Tatima correctly was not within the powers of the parties and they did whatever was possible on their part. Therefore, after coming to the conclusion that a part of the suit land is in possession of the plaintiff and the defendant is interfering with his possession, it is necessary for fair and just decision of the case to ascertain the actual position of the spot which can be best ascertained by issue of a commission at the cost of the parties.
16. In view of the above discussion, the findings recorded by the Court below on Issue Nos. 1 and 2 are rendered unsustainable. However, a perusal of the record reveals that the findings on issue Nos. 3 to 9 as already recorded, are sustainable and do not call for any interference.
17. In the given circumstances, the only course left open to this Court is to remand the case to the lower appellate Court with a direction to appoint a Local Commissioner to carry out a local investigation and thereafter dispose of the appeal in accordance with law.
18. As a result, this appeal is allowed and while affirming the findings on issue Nos. 3 to 9, as already recorded, the findings on issue Nos. 1 and 2 as recorded by the Courts below, are set aside and as a consequence, the impugned judgment and decree are set aside. The appeal is remitted to the lower appellate Court, with the direction to appoint a Local Commissioner to investigate and report about the actual and factual position about the path, construction etc., if any, on the suit land, i.e. khasra No. 151/1, as specified in Tatimas Ex. PW-4/A and after receipt of the report of the Local Commissioner to deal with it as per the prescribed procedure and record findings on issue Nos. 1 and 2 and dispose of the appeal in accordance with law.
19. In the facts and circumstances of the case, there is no order as to costs.
20. The parties, through their learned counsel, are directed to appear before the lower appellate Court on 23-9-2002.