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2016 DIGILAW 614 (HP)

Vishwa Nath v. State of H. P.

2016-04-29

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. 1. This appeal has been filed against judgment and decree, dated 01.03.2006, passed by the learned District Judge, Hamirpur in Civil Appeal No. 100 of 2004, titled The State of Himachal Pradesh and another Vs. Vishwa Nath, vide which learned Appellate Court has reversed the judgment and decree, dated 17.04.2004, passed by learned Civil Judge (Senior Division), Hamirpur in Civil Suit No. 438 of 1996, titled as Vishwa Nath Vs. State of H.P. and another. 2. This appeal was admitted on 26.03.2007 on the following substantial question of law: “Whether the first Appellate Court having found that the demarcation was not carried out, as per the instructions, ought not to have decided the appeal on merits, without appointing a fresh Local Commissioner and obtaining his report?” 3. Facts, in brief, necessary for the adjudication of the case, are that the appellant herein had filed a suit for permanent prohibitory injunction against the respondent/defendant qua the suit land comprising Khata No. 244, Khatoni No. 246, Khasra No. 666, measuring 0.7 Marlas, as per Jamabandi for the year 1995-96 of Tika Bohni, Tappa Ugialta, Tehsil and District Hamirpur, H.P. on the ground that the appellant/plaintiff was the owner in possession of the suit land, on which there was a shop as well as residential house, construction of which was 80-90 years old. Case of the appellant/plaintiff was that the adjoining land was owned by HP PWD department and the respondent/defendant No. 2 had destroyed the boundary marks and was bent upon to demolish and damage the building. Hence, the suit was filed for permanent prohibitory injunction for restraining the defendants from demolishing the building of the plaintiff or interfering in the suit land and the plaintiff had also prayed for mandatory injunction directing the respondents/defendants to restore the structure if any demolished by them. 4. During the pendency of the suit before the learned lower Court, an application was filed by the plaintiff for amendment of the plaint, which was allowed vide order, dated 16.03.1999. The amendment permitted to be incorporated was with regard to the description of the suit property, i.e. in the original plaint, the plaintiff had stated that he was owner in possession of the land measuring 0.2. The amendment permitted to be incorporated was with regard to the description of the suit property, i.e. in the original plaint, the plaintiff had stated that he was owner in possession of the land measuring 0.2. Marlas as per Jamabandi for the year 1990-91, which was subsequently amended to the effect that he was owner in possession of the land measuring 0.7 Marlas as per Jamabandi for the year 1995-96. 5. The suit was decreed by the Court of learned Civil Judge (Senior Division), Hamirpur on 17.04.2004 in following terms:- “The suit of the plaintiff for permanent prohibitory injunction is hereby decreed to the effect that defendants are hereby restrained from interfering in any manner whatsoever or causing any damage or demolishing the structure i.e. house-cum-shop of plaintiff situated in suit land bearing Khata No. 244, Khatoni No. 246, Khasra No. 666, measuring 0-7 marlas, as per Jamabandi 1995-96, situated in Tika Bohni, Tappa Ugialta, Tehsil and District Hamirpur (H.P.) Parties shall bear their own costs.” 6. Feeling aggrieved, the present respondents filed an appeal, which was allowed by the learned Appellate Court vide judgment, dated 01.03.2006. 7. During the pendency of the case before the learned lower Court, a Local Commissioner was appointed and his report is Ex.-P4. As per the report of the Local Commissioner, the appellant/plaintiff had not encroached upon any land of Public Works Department. This report was relied upon by the learned lower Court in passing the decree in favour of the plaintiff. Objections filed to the said report were also dismissed by the learned lower Court. Ex.-P4 is the report submitted by Naib Tehsildar, Hamirpur. In appeal, learned Appellate Court has observed that the boundary of the suit land with Khasra No. 1112 was required to be determined by the Collector/Assistant Collector under the provisions of the H.P. Land Revenue Act. The learned Appellate Court has further observed that the learned lower Court had proceeded to pass the decree of permanent injunction on the strength of the report of Naib Tehsildar, who had demarcated the suit land under the orders of the lower Court. The learned Appellate Court has held that learned lower Court was wrong in treating the report of Local Commissioner as correct. The learned Appellate Court has held that learned lower Court was wrong in treating the report of Local Commissioner as correct. The learned Appellate Court has further held that the learned lower Court has erred in rejecting the objections filed by the defendants to the said report of the Local Commissioner. Accordingly, the learned Appellate Court came to the conclusion that the plaintiff was found to have encroached upon the highway and the learned lower Court has not rightly appreciated the oral and documentary evidence placed on record and had erred in answering issue No. 1 in favour of the plaintiff. It further came to the conclusion that the suit of the plaintiff was not maintainable and the plaintiff had no cause of action. Accordingly, the appeal was allowed. 8. Feeling aggrieved, the appellant has preferred the present appeal against judgment and decree passed by the learned Appellate Court. As already mentioned above, the appeal has been admitted on the substantial question of law whether the first Appellate Court having found that the demarcation was not carried out, as per the instructions, ought not to have decided the appeal on merits, without appointing a fresh Local Commissioner and obtaining his report? 9. Mr. K.D. Sood, learned senior counsel representing the appellant has strenuously argued that there was no good and sufficient ground available with the learned Appellate Court to set aside the report of the Local Commissioner when the said report was not challenged by way of an appeal or revision. He has further argued that even if it is assumed for the same of argument that there was any defect in the report of Local Commissioner, then the learned Appellate Court should have had appointed a fresh Local Commissioner to demarcate the property as per the instructions of the Government, since the dispute was boundary dispute and the appellant/plaintiff ought to have been given liberty to have the land demarcated afresh, which aspect has been completely ignored by the Court below. Mr. Mr. K.D. Sood, learned senior counsel has further argued that even otherwise the judgment and decree passed by the learned Appellate Court were not sustainable in law as Appellate Court has adjudicated upon the matter by placing reliance on the pleadings as were incorporated in the original plaint, which was unjustified because once the plaint was allowed to be amended, then the pleadings of the amended plaint ought to have been taken into consideration while deciding the appeal. 10. On the other hand, learned Additional Advocate General has argued that there is no infirmity or perversity with the judgment passed by the learned Appellate Court and the said Court has rightly come to the conclusion that the plaintiff was an encroacher and the report of the Local Commissioner was incorrect and could not have been made basis for deciding the case by the learned lower Court. 11. I have heard the learned counsel for the parties and also gone through the records of the case. 12. In my view, the learned Appellate Court erred in not ordering fresh demarcation of the property by appointing a new Local Commissioner to carry out the necessary demarcation, after coming to the conclusion that the report of the Local Commissioner, Ex.-P4 was incorrect. Appointment of a fresh Local Commissioner would have had advanced the cause of justice. 13. There is no dispute that the issue involved was a boundary dispute. Once the learned Appellate Court entertained doubts about the correctness of the demarcation given by the Naib Tehsildar, then the course that ought to have been adopted by it was to have had appointed a Local Commissioner to demarcate the disputed area, which would have had facilitated the adjudication of the dispute involved. Fresh demarcation would have had facilitated the learned Appellate Court in finding out as to whether there was any encroachment and, if so, what was the extent of the said encroachment. However, rather than adopting this course, the learned Appellate Court proceeded to allow the appeal filed by the present respondents and dismissed the suit. This approach of the learned Appellate Court, in my view, is not only incorrect, but is also not in consonance with the law laid down in this regard by this Court. 14. This Court has held in Braham Datt Vs. This approach of the learned Appellate Court, in my view, is not only incorrect, but is also not in consonance with the law laid down in this regard by this Court. 14. This Court has held in Braham Datt Vs. Prem Chand and others 2000 (1) SLJ 431 that 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. 15. This Court has further held in Udai Ram and another Vs. Ram Lal, Latest HLJ 2008 (HP) 296 that having come to the conclusion that the dispute inter-se between the parties was a boundary dispute, the court ought to have appointed a Local Commissioner to ascertain the dispute. 16. At this stage, it is pertinent to refer to the judgment of the Hon’ble Supreme Court in Haryana Waqf Board Vs. Shanti Sarup and Ors. (2008) 8 SCC 671 , in which case, the Hon’ble Supreme Court has held as under: “4. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of the CPC. 5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in respect of the suit land by them as per paragraph 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected. 6. It is also not in dispute that even before the appellate court, the appellant-Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. 6. It is also not in dispute that even before the appellate court, the appellant-Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.” 17. The second contention raised by Mr. K.D. Sood, learned Senior Advocate that the judgment passed by the learned Appellate Court is not sustainable because the learned Appellate Court has relied upon the pleadings made in the original plaint rather than those made in the amended plaint, is also well founded. He has relied upon a judgment passed by the High Court of Allahabad in Jagnarain and others Vs. Radhey Shyam Singh and another AIR 2004 Allahabad 215, in which it has been held that once plaint has been allowed to be amended, un-amended portion cannot be taken into consideration. 18. In my considered view, once the amendment of the plaint was allowed, then for the purpose of adjudication of the case, learned Appellate Court had to rely upon the amended plaint and the adjudication could not have been done on the basis of the un-amended plaint. This is for the reason that in case even after amendment having been permitted, a Court adjudicates on the basis of the un-amended pleadings, then the very purpose of allowing the amendment of pleadings is defeated. In my view, once pleadings are amended, then that which stood before amendment, was no longer material. 19. Therefore, in view of the reasonings given above, the present appeal is allowed. Judgment and decree, dated 01.03.2006, passed by the learned Appellate Court, which are under challenge, are set aside and the case is remanded back to the learned Appellate Court to decide the appeal on merits afresh after appointing a Local Commissioner for demarcation of the suit land. The learned Appellate Court is further directed to adjudicate the matter on the basis of amended pleadings. The learned Appellate Court is further directed to adjudicate the matter on the basis of amended pleadings. As the Civil Suit was instituted in the year 1996, this Court hopes and trusts that learned Appellate Court shall decide the case as expeditiously as possible, preferably on or before 31st October, 2016. The parties are directed to put in appearance before the learned Appellate Court through their counsel on 16th May, 2016. No order as to costs.