Himachal Pradesh High Court
Santosh Kumari vs Mewa Singh And Others on 27 June, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 266 of 2006 .
Date of decision: 27.6.2023
Santosh Kumari ...Appellant.
Versus
Mewa Singh and others. ...Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? Yes.
For the Appellant. Mr.Kapil Dev Sood, Senior Advocate, alongwith Mr.Het Ram, Advocate, vice Mr. Sanjeev Sood, Advocate.
For the Respondents: Mr.Tara Singh Chauhan, Advocate.
Vivek Singh Thakur, Judge This Regular Second Appeal has been preferred by plaintiff against judgment and decree dated 10.3.2006 passed by District Judge, Una in Civil Appeal No. 83 of 2003, titled Santosh Kumari Vs. Malkiat Singh and others, whereby judgment and decree dated 21.8.2003 passed in Case No. 285/I of 1999, titled as Santosh Kumari Vs. Malkiat Singh and others, dismissing the suit of the plaintiff for permanent prohibitory injunction and for permanent injunction, has been affirmed.
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2. Case of the plaintiff, in brief, is that she is owner in possession of Khasra No. 5064/3 and 5064/2 measuring 0-09-99 hectares situated in village Bhera, Tehsil Amb, District Una, H.P. .
which was purchased by her from defendant No. 1 through registered sale deed dated 18.6.1999, whereas defendants have no right, title or interest in the suit land and defendants No. 2 and 3 causing interference in the suit land and further that during pendency of suit they have forcibly encroached upon the suit land marked as letters A, B, C, D and E which is part of suit land compromised in Khasra No. 5064/2 and, therefore, plaintiff has prayed for decree for permanent prohibitory injunction with possession of portion encroached upon, referred supra.
3. Defendants No. 2 and 3 have contested the suit, denying the allegations of causing any interference by them in the suit land, but with claim that they are in possession of their own land comprised in Khasra No. 5064/2001, which was purchased by defendant No. 2 from defendant No. 1 and he has laid foundations over this land upon which plaintiff has no right, title and interest. It is further case of the defendant that plaintiff had filed an application for correction of revenue record, which was dismissed by Settlement Officer Dharamshala, H.P.
4. It is an admitted fact that earlier also, plaintiff had filed a suit for permanent injunction against defendants No. 2 and ::: Downloaded on - 27/06/2023 20:37:23 :::CIS RSA No.266 of 2006 ...3...
3, which was dismissed as withdrawn on the basis of statement made by defendants No. 2 and 3 that they had no right, title or interest in the suit land.
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5. Claim of plaintiff is that she has seven meters front alongside the road and defendants No. 2 and 3 are interfering and have encroached upon the portion of her land, whereas claim of the contesting defendant is that there is front of 25 meters on the side of the road of the whole of the land comprised in Khasra No. 5064/1, 5064/2 and 5064/3 and out of which defendant No. 2 has 18 meters front and the plaintiff has 7 meters front and the defendants are neither interfering nor have encroached upon the land owned and possessed by the plaintiff.
6. Plaintiff's claim is based mainly on the report of Local Commissioner-Kanungo Amar Nath, who has been examined as PW-2. His report Ex. P-1 has been discarded by the Courts below on the ground that the said repot was self contradictory as on one hand he has stated that record is not correct and, therefore, no demarcation could be given and at the same time, he has also stated that foundation laid by defendant No. 2 were found in the land of plaintiff. He had also stated that demarcation could be given only after correction of revenue record.
7. It has also been recorded by learned District Judge that application moved by the plaintiff to the Settlement Officer for ::: Downloaded on - 27/06/2023 20:37:23 :::CIS RSA No.266 of 2006 ...4...
correction of revenue record was dismissed by the Settlement Officer after inquiry on finding that there was no error in the revenue record and the revenue record prepared during .
settlement was correct.
8. From the pleadings of parties and evidence led by them it is quite clear that dispute in present case is a boundary dispute related to adjacent land holdings owned and possessed by plaintiff and defendant No. 2 respectively. Report of the Local Commissioner has been found to be not only vague, but contrary because at the one hand he has expressed his inability to demarcate the land with observation that it can be demarcated only after correction of revenue entries and on the other hand he has concluded that defendant No. 2 has encroached upon the land of plaintiff.
9. Plaintiff alongwith present appeal has also filed an application under Order 26 Rule 9 CPC for appointment of Local Commissioner to demarcate the suit land.
10. No reply to the said application has been filed.
However, it is contended on behalf of contesting defendants that plaintiff has failed to prove her case before the Courts below by leading cogent and reliable evidence and, therefore, there is no necessity to appoint Local Commissioner and in alternative it has been submitted that as in case this Court considers it appropriate ::: Downloaded on - 27/06/2023 20:37:23 :::CIS RSA No.266 of 2006 ...5...
to appoint Local Commissioner, then the Courts below be directed to undertake such exercise and report be called in present appeal, and matter be decided on the basis of such .
report. However, learned counsel for plaintiff submits that in such eventuality, the parties shall lose their right to assail the report, if not acceptable to either of the party.
11. Learned counsel for the plaintiff has contended that in view of pronouncements of this High Court as well as the Supreme Court, in a dispute of present nature, for filing an application for appointment of Local Commissioner by plaintiff, Local Commissioner deserve to be appointed to settle the boundary depute between the parties for ever and to close more than 25 years old litigation between the parties. He has further submitted that it is second round of litigation and it would be in the interest of justice to appoint the Local Commissioner to demarcate the land and settle the dispute. It has been further contended that though plaintiff had not filed any application before the Trial Court or before learned District Judge for appointment of Local Commissioner, however, in view of pronouncements of Courts, in consonance with provisions of the Code of Civil Procedure, the Courts below were not only empowered, but were also under obligation to appoint Local Commissioner for resolving the dispute between the parties, ::: Downloaded on - 27/06/2023 20:37:23 :::CIS RSA No.266 of 2006 ...6...
particularly when report of Local Commissioner was already on record, but was discarded by the Courts below finding it inappropriate or contradictory.
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12. Learned counsel for the plaintiff has relied upon judgment of this High Court in Bali Ram Vs. Mela Ram and another, reported in 2002(3) Shim. L.C. 131=AIR 2003 HP 87, wherein relying upon earlier pronouncement of this Court in Braham Datt Vs. Prem Chand and others, 2000 (1) SLJ 431, has observed as under:-
"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 :--
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"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 r 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 ::: Downloaded on - 27/06/2023 20:37:23 :::CIS RSA No.266 of 2006 ...8...
ascertain the actual position of the spot which can be best ascertained by issue of a commission at the cost of the parties."
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13. Learned counsel for the plaintiff has also relied upon pronouncement of this High Court in Prithi Singh Vs. Bakshi Ram and another, reported in Latest HLJ 2006 (HP) 5, wherein it has been observed as under:-
"7. As referred to above, the dispute between the parties was in fact a boundary dispute. It could be solved only by demarcation, inasmuch as the land claimed by the plaintiff to be owned and possessed by him as different from the land claimed by the defendants to be owned and possessed by them and both the lands were adjoining each other. In such a situation, the only course open for the trial Court was to have appointed a Local Commissioner to visit the spot after issuing notice to both the parties and to demarcate the suit land in accordance with law. Instead of ordering the appointment of the Local Commissioner to demarcate the suit land, the learned trial Court proceeded to dismiss the application of the plaintiff under Order 26 Rule 9 CPC by taking the plea that the object of local investigation was not to collect evidence on behalf of the parties. In my opinion, appointment of a Local Commissioner to demarcate the suit land, in a case which involves boundary dispute would not amount to collecting on behalf of either party.
On the other hand, as referred to above, this would be the only course open to the trial Court to settle the dispute between the parties by appointing a Local Commissioner to visit the spot and to submit his report after demarcation in accordance with law."
14. Learned counsel for the plaintiff has referred pronouncement of this High Court in Smt. Daya Sharma and another Vs. Suraj Mani, reported in 2011 (2) Shim. LC 42, ::: Downloaded on - 27/06/2023 20:37:23 :::CIS RSA No.266 of 2006 ...9...
whereby petition preferred against the order passed by learned District Judge, allowing the application under Order 6 Rule 9 CPC for appointment of Local Commissioner to demarcate the land, .
was upheld on the ground that Local Commissioner should have been appointed to find out the extent of encroachment, if any.
15. Reliance has also been placed on behalf of plaintiff on pronouncement of the Supreme Court in Ram Lal and others Vs. Salig Ram and others, reported in AIR 2019 Supreme Court 729 = 2019 (2) Him. LR (SC) 852, wherein dismissal of Regular Second Appeal by this High Court was set aside with direction to appoint fresh Local Commissioner and to decide the suit afresh in accordance with law. Relevant paras of the said pronouncement are as under:-
"15. It appears from the observations made by the High Court in the present case that the Local Commissioner omitted to scrupulously follow the applicable instructions for carrying out such demarcation and particularly omitted to fix three reference points on different sides of the land in question. However, the report made by the Local Commissioner was accepted by the Trial Court as also by the First Appellate Court. The question is: If the Local Commissioner's report was suffering from want of compliance of the applicable instructions, what course was to be adopted by the High Court?
16. An appropriate answer to the question aforesaid is not far to seek. In the course of a civil suit, by way of incidental proceedings, the Court could issue a Commission, inter alia, for making local investigation, as per Section 75 of the Code of Civil Procedure ("the Code"
hereafter). The procedure in relation to such Commission ::: Downloaded on - 27/06/2023 20:37:23 :::CIS RSA No.266 of 2006 ...10...
for local investigation is specified in Rules 9 and 10 of Order XXVI of the Code. Suffice it to notice for the present purpose that, as per clause (3) of Rule 10 of Order XXVI, where the Court is dissatisfied with the .
proceedings of such a Local Commissioner, it could direct such further inquiry to be made as considered fit. This clause (3) of Rule 10 of Order XXVI of the Code reads as under:-
"Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."
17. The fact that the Local Commissioner's report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner's report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner's report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner's report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on ::: Downloaded on - 27/06/2023 20:37:23 :::CIS RSA No.266 of 2006 ...11...
their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the .
Commissioner's report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record.
18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.
19. Accordingly, this appeal is allowed in the manner that the judgment and decree dated 06.11.2007 in RSA No. 260 of 1995 is set aside but the said appeal is disposed of by setting aside the judgment and decree of the subordinate Courts; and the suit filed by the plaintiffs- appellants is restored for reconsideration by the Trial Court keeping in view the observations and requirements foregoing."
16. To oppose the appointment of Local Commissioner, learned counsel for the defendants has placed reliance on decision of this High Court in Braham Dass & another Vs. Bhoomi Chand RSA No. 387 of 2003 and Khem Singh Vs. Y.R. Sharma, RSA No. 481 of 2005.
17. Considering the judgments referred on behalf of defendants, I find that these judgments are not applicable to present case, as these were passed in peculiar facts of those ::: Downloaded on - 27/06/2023 20:37:23 :::CIS RSA No.266 of 2006 ...12...
cases, whereas verdict of the Supreme Court in Ram Lal's case is a clear mandate which is applicable in present case. Parties are litigating since long and it is second round of litigation and, .
therefore, Local Commissioner may have been appointed by this Court, however, as submitted that it will cause denial to parties to their right to assail the report or findings returned on the basis of such report and that the Supreme Court has also remitted the case to the Trial Court, it would be appropriate to send the matter to the Court below for appointment of Local Commissioner to decide the matter thereafter in accordance with law.
18. In Ram Lal's case suit was filed in the year 1986, wherein the matter was remitted to the Trial Court to decide it afresh in the year 2019. Therefore, learned counsel for the plaintiff submits that in view of findings returned on the other issues, except issue No.5, by the Trial Court after discarding the Local Commissioner's report, matter is required to be remitted to the Trial Court.
19. In view of above discussion and taking into consideration the aforesaid pronouncements, especially of the Supreme Court, appeal is allowed and judgment and decree dated 10.3.2006 passed by learned District Judge in Civil Appeal No. 83 of 2003 and judgment and decree dated 21.8.2003 passed by the Trial Court in Civil Suit No. 285/I of 1999 are set ::: Downloaded on - 27/06/2023 20:37:23 :::CIS RSA No.266 of 2006 ...13...
aside and suit filed by the plaintiff is restored for reconsideration with direction to issue fresh Commission by appointing Tehsildar of the area as Local Commissioner in accordance with law, as .
requested on behalf of plaintiff at the cost of plaintiff. Tehsildar is directed to demarcate the suit property to ascertain the boundary on the basis of existing revenue record, on or before 31.3.2023.
Trial Court is directed to decide the suit on Issues No.1 to 4 again as originally framed, after taking into consideration report of Local Commissioner. Finding on Issue No.5 warrants no fresh adjudication. Entire exercise shall be undertaken by the Trial Court as expeditiously as possible, preferably within three months from the date of appearance of the parties. In case plaintiff fails to perform her part for appointment and execution of the Commission, then suit shall be dismissed for non-prosecution.
20. Parties are directed to appear before the Trial Court on 15th July, 2023. Registry is directed to remit the records to the Courts below forthwith alongwith copy of this order/judgment.
The appeal stands disposed of in aforesaid terms, so also pending application(s), if any.
(Vivek Singh Thakur), th 27 June, 2023 Judge.
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