Jodh Singh And Another vs Ramesh Chand Soni And Another on 21 June, 2019

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Himachal Pradesh High Court

Jodh Singh And Another vs Ramesh Chand Soni And Another on 21 June, 2019

Bench: Ajay Mohan Goel

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                       RSA No.: 70 of 2019.




                                                           .
                                       Decided on: 21.06.2019.





    Jodh Singh and another                             ....Appellants.





                Versus

    Ramesh Chand Soni and another                      ...Respondents.
    Coram





    The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
                                        No
    Whether approved for reporting?1
    For the appellants :     Mr. G.R. Palsra, Advocate.

    For the respondents :    Mr. Neeraj Gupta, Sr. Advocate

                             with Mr. Ajit Jaswal, Advocate.
    Ajay Mohan Goel, Judge (Oral)

With the consent of the parties, this appeal is being disposed of at the admission stage itself.

2. By way of this appeal, the appellant has prayed for the following reliefs:-

"It is, therefore, most respectfully prayed that in view of the submissions made here-in-above, after summoning the respondents and sending for the record, this appeal may kindly be allowed and judgment and decree dated 28.11.2018 passed by the Ld. Additional District Judge (II), ::: Downloaded on - 28/09/2019 23:44:15 :::HCHP Mandi in Civil Appeal No. 31/18 as well as the order dated 23.03.2018 passed by the Ld. Civil Judge (Sr. Division) Mandi in CMA No. 47/2008 .

in Civil Suit No. 103 of 1992 may kindly be set aside/quashed after dismissing the application filed by the respondents for passing of final decree and justice be done."

3. Learned Counsel for the appellants has argued that the judgments passed by learned Trial Court as also learned Appellate Court are not sustainable in the eyes of law as the findings contained therein are perverse and contrary to the record. His contention is that the present appellants filed Objections to the report of the Local Commissioner before learned Trial Court. However, without deciding the said Objections, learned Trial Court pronounced the judgment.

Not only this, the error committed by the learned Trial Court is that it held in the judgment that no Objections whatsoever were filed to the report of the Local Commissioner by either of the parties, which finding is contrary to the record. He has further argued that this aspect of the matter has also been ignored by the learned Appellate Court while upholding the findings returned by the learned Trial Court.

::: Downloaded on - 28/09/2019 23:44:15 :::HCHP

4. A perusal of the judgments passed by both the learned Courts below demonstrates that unequivocally they .

have held therein that the report of the Local Commissioner has attained finality as no Objections to the same have been filed.

5. Learned Senior Counsel appearing for the respondents was asked by the Court as to whether said observations which find mention in the judgment of learned Trial Court as also learned Appellate Court was correct or not.

He has fairly stated that as per his instructions, Objections were filed to the report of the Local Commissioner by the appellants but the same were not decided by the learned Trial Court. However, he has argued that even adjudication upon the Objections would not have altered the final findings returned by the learned Trial Court and learned Appellate Court.

6. Having heard learned Counsel for the parties, as it is not in dispute that the finding returned by both the learned Courts below that no Objections were filed to the report of the Local Commissioner, is contrary to the record, judgments passed by learned Courts below are not ::: Downloaded on - 28/09/2019 23:44:15 :::HCHP sustainable in law. These findings apparently are contrary to the record. What would have been the effect of adjudication of .

Objections filed to the report of Local Commissioner is something which cannot be contemplated by this Court at this stage.

7. Accordingly, this appeal is allowed and the order/judgment passed by both the learned Courts below, i.e. order dated 23.03.2018, passed in CMA No. 47 of 2008 filed in Civil Suit No. 103 of 1992 by Senior Civil Judge, Mandi, District Mandi, HP and judgment dated 28.11.2018 passed in Civil Appeal No. 31/18, by Additional district Judge (II), Mandi, District Mandi, HP, are set aside and the matter is remanded back to learned Trial Court with the direction to hear and decide the Objections filed by the appellants to the report of the Local Commissioner and thereafter, pass appropriate judgment, in accordance with law. It is clarified that learned Trial Court shall not permit either of the parties to re-open any other issue

8. The appeal stands disposed of in above terms.

Parties though their respective learned Counsel are directed to appear before the learned trial Court on 22.07.2019. This ::: Downloaded on - 28/09/2019 23:44:15 :::HCHP Court hopes and expects that learned Trial Court shall adjudicate upon the suit, as expeditiously as possible and not .

later than 31st October, 2019. Registry is directed to forthwith return the record of learned Courts below so as it reach there in time. Pending miscellaneous application(s), if any, also stand disposed of.

(Ajay Mohan Goel) Judge June 21, 2019 (narender) ::: Downloaded on - 28/09/2019 23:44:15 :::HCHP

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