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2012 DIGILAW 156 (HP)

Ram Lal v. Krishan Dutt

2012-04-03

SURINDER SINGH

body2012
ORDER : Surinder Singh, J. - The petitioner, by means of the present petition under Article 227 of the Constitution of India assailed the order dated 8.11.2011 passed by the learned trial Court in CMP No.308/6 of 2011 rejecting the application of the petitioner under Order 26 Rule 9 of the Code of Civil Procedure being harsh and arbitrary. 2. The respondent despite service was not present. 3. Heard Shri Virender Singh Chauhan, learned counsel for the petitioner and examined the order impugned. 4. As a matter of fact, the respondent got the suit land demarcated prior to the filing of suit in the presence of the petitioner herein in the month of May, 2006 from Assistant Collector, Nahan and the petitioner was found to have encroached suit khasra. Thus, he filed suit for possession on the basis of his title. The suit was resisted and contested, but the title of the respondent was not disputed, rather alleged encroachment on his own land by the petitioner. Further agitated that while demarcating the land of the respondent-plaintiff, the guidelines issued by the Financial Commissioner were not taken in to consideration and the Assistant Collector showed the land of the plaintiff/ respondent wrongly in his possession. 5. The issues were framed and the parties led their evidence. When the suit was listed for final arguments, an application under Order 26 Rule 9 of the Code of Civil Procedure was moved by the petitioner/defendant to appoint the Local Commissioner on the ground that the demarcation was not conducted by the Revenue Officer in accordance with the instructions of the Financial Commissioner and also that his application was rejected by the Assistant Collector Ist Grade for re-demarcation. Learned counsel for the petitioner also submitted that there was a boundary dispute, as such, the demarcation was required to be got conducted by the Revenue Expert, thus the impugned order is wrong. 6. A perusal of the pleadings of the parties does not show any- where that the petitioner herein had raised boundary dispute. The respondent/ plaintiff alleged encroachment on the basis of the demarcation report of the Assistant Collector Ist Grade, who had already conducted the demarcation in the presence of the parties. 6. A perusal of the pleadings of the parties does not show any- where that the petitioner herein had raised boundary dispute. The respondent/ plaintiff alleged encroachment on the basis of the demarcation report of the Assistant Collector Ist Grade, who had already conducted the demarcation in the presence of the parties. Such a demarcation under Section 107 (1) of the Himachal Pradesh Land Revenue Act, 1954, is quasi-judicial in nature and statutory function, therefore, even the Collector in his supervisory jurisdiction under Section 12 of the Act can also not set-aside the demarcation given by the Assistant Collector, but however, if after notice to the affected parties, the Collector is satisfied that the order requires modification or reversal, he is to report the case to the Financial Commissioner, who alone is empowered to pass such order as he think fit under Section 17 (4) of the Act. Therefore, the demarcation already given by the Assistant Collector earlier in the presence of the parties which was not assailed cannot be upset by a Local Commissioner. 7. Since the petitioner has failed to point out any error of jurisdiction and patent defect in the impugned order, as such, petition is dismissed in liminie, so also the pending application(s), if any.