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2009 DIGILAW 294 (JK)

Rifat Ara (Dr. ) v. S. Karan Singh Raina

2009-06-05

SUNIL HALI

body2009
1. Dispute relates to 3 Kanals and 5 Marlas of land, which is stated to have been purchased by the petitioners/ defendants vide a sale deed executed on 4.8.1997. The petitioners/defendants claim that the land is situated in Khasra No. 941 at Chowadhi, Tehsil, Jammu. The plaintiff/respondent has stated in the suit filed by him in the trial court that the defendants/petitioners are encroaching upon the land measuring 3 Kanal and 5 Marlas situated in Khasra No. 831 at Chowadhi, Jammu. 2. It transpires that on inspection being conducted by the Settlement Commissioner, the said land is stated to have been located in Khasra No. 941 min. This is contained in the report submitted by the Settlement Commissioner on 3.2.2006. One more report is stated to have been filed on the direction of the Financial Commissioner (Revenue) by the Assistant Commissioner Revenue, Jammu which states that the land in dispute falls partly in Khasra Nos. 831 and 941. 3. On being contested by the defendants/petitioners, the Financial Commissioner (Revenue) vide its order dated 24.8.2006 directed the Joint Agrarian Reforms Commissioner, Jammu to demarcate the land in presence of both the parties. Without awaiting for the report from the Joint Agrarian Reforms Commissioner, Jammu, the defendants/petitioners filed an application before the trial court for appointment of a Commissioner for local investigation. The said application of the defendants/petitioners has been dismissed by the trial court vide its judgment dated 22.01.2009. It is in these circumstances, the present revision petition has been filed by the petitioners/defendants. 4. I have heard learned counsel for the parties and perused the record. 5. The rival contentions of the parties relating to the land in dispute are confined only to this extent as to whether the land is situated in Khasra No. 831 or Khasra No. 941. Determination sought from the court by the parties relates to the physical identification of the land relating to its survey number only. The parties do not claim to be owners in possession of the land situated in same survey number. 6. In the present case, identification of survey number where the land is situated will clinch the issue. If the land is found to be in survey No. 831 then the petitioners/defendants will have no cause to agitate and if the same is found to be in survey No. 941 then plaintiff/respondent will also have no cause to agitate. 7. 6. In the present case, identification of survey number where the land is situated will clinch the issue. If the land is found to be in survey No. 831 then the petitioners/defendants will have no cause to agitate and if the same is found to be in survey No. 941 then plaintiff/respondent will also have no cause to agitate. 7. Adverting to the present controversy, it is important to examine the Order XXVI Rule 9, which is quoted herein below: "9. Commissioner to make local investigations. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidation any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court; Provided that where the Government has made rules as to the person to whom such commission shall be issued, the court shall be bound by such rules." 8. Perusal of the provision (supra) reveals that court may order the local investigation for the purpose of elucidation in any matter in dispute or of ascertaining the market value of any property. Elucidation would means clarifying certain facts that have not to be determined. The Court may not have powers to order local investigation, which needs a determination. The court cannot be permitted to delegate this power to determine the controversy by directing local investigation. However, where the court feels that certain clarifications or elucidations are required, which do not require any determination, it can order such investigation. Applying this test to the present case, a local investigation to determine location of the land is a bone of contention between the parties. Elucidation is only to clarify by local inspection as to whether land is situated in Khasra No. 941 or in Khasra No. 831. The trial court has agreed with the principles indicated herein (supra), but rejected the application. 9. I do not agree with the findings of the trial court that demarcation which has been conducted is conclusive. The fact which emerges is that there are two contradictory reports submitted by the revenue agencies regarding identification of the land; one supports the petitioners and other the respondent. 10. 9. I do not agree with the findings of the trial court that demarcation which has been conducted is conclusive. The fact which emerges is that there are two contradictory reports submitted by the revenue agencies regarding identification of the land; one supports the petitioners and other the respondent. 10. The direction of the Financial Commissioner dated 24.8.2006 clearly reveals this fact that the matter is not conclusively decided. He has ordered fresh demarcation to be conducted by the Joint Agrarian Reforms Commissioner, Jammu. It will be appropriate, if a local Commissioner is appointed who would supervise the demarcation being conducted by the Joint Agrarian Reforms Commissioner, Jammu in pursuance to the directions of Financial Commissioner ( Revenue) dated 24.8.2006. 11. I, therefore, set aside the order impugned dated 22.1.2009 and direct the trial court to appoint a local Commissioner in whose supervision the demarcation of land will be conducted by the Joint Agrarian Reforms Commissioner, Jammu in pursuance to the directions dated 24.8.2006 issued by the Financial Commissioner(Revenue). Disposed of.