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Himachal Pradesh High Court · body

2018 DIGILAW 1135 (HP)

Guman v. Ram Chand

2018-06-20

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J —The instant petition, is, directed against the orders pronounced by the learned Civil Judge (Junior Division), Nahan, District Sirmour, H.P., upon, CMA No. 43/6 of 2017, whereunder, the SHO concerned, was directed, to implement the orders, rendered, on 28.02.2017 upon CMA No. 27/6 of 2017. 2. The learned Civil Judge (Junior Division) concerned, on 28.02.2017, pronounced, a common order, upon, CMA No. 200/6 of 2016, and, upon CMA No. 27/6 of 2017. One amongst the aforesaid application, was cast, by the plaintiff/non-counter claimant, and, the other application, was, cast by the defendants/counter claimants. 3. The plaintiff/non-counter claimant, in his application, had contended of his being owner, in possession, of the suit land, borne in Khata Khatauni No.112/167, Khasra No.733/103, measuring 2-03 bighas, situated at Mauza Trilokpur, Tehsil Nahan, District Sirmaur, H.P., and, the defendants/nonapplicants/ counter claimants, holding no right, title or interest, upon, the aforesaid khasra numbers, (i) and, theirs rather on 7.12.2016, making an unlawful attempt, to use a portion of the aforesaid khasra numbers, as a path, for, theirs accessing their homestead. Consequently, the plaintiff/non-counter claimant, contended, that the relief of ad interim injunction, being granted qua him, and, against the defendants, for restraining them, from using any part of the suit land, as a path, for theirs accessing their homestead(s). 4. In paragraph No.7, of, the common verdict pronounced, by the learned Civil Judge (Junior Division) concerned, upon, CMA No. 200/6 of 2016, and, upon CMA No. 27/6 of 2017, there is a pointed reference, of the apposite path, (i) user whereof is espoused, by the defendants/counter claimants, (ii) being borne in khasra numbers 113, 110, 11, 107, 733/103, 102 and 85, and, it being reflected, in the site plan, with red line depicted, by letter B.A., and, C. A perusal, of the contents of paragraph No.7, of, the aforesaid verdict, hence reveal, that, the aforesaid path, is existing, on the spot, since time(s) immemorial, and, except, the disputed path, there being no other path, from the abadi land, to approach the village well, and, the shamlat land of the village. It appears that in consonance, with, paragraph 7, borne in the verdict pronounced, by the learned Civil Judge (Junior Division) concerned, the latter proceeded, to allow the application, filed by the defendants/counter claimants, and, he hence, refused, the, relief vis-a-vis the plaintiff, of, ad interim injunction, qua the defendants being restrained from using the path, (iii) besides also directed the plaintiff/non-counter claimant, to unblock, the path for facilitating its user by the villagers. Moreover, (iv) a direction was also pronounced upon the defendants/counter claimants, whereunder, they were prohibited, against, causing any sort of interference, vis-a-vis, the property, of the plaintiff/non-counter claimant, which exists, in the shape of constructed structure or cultivable area. Apparently, the aforesaid verdict, rendered, by the learned Civil Judge (Jr. Divn.) concerned, upon CMA No. 200/6 of 2016, and, upon CMA No. 27/6 of 2017, has acquired conclusivity, given no appeal being preferred therefrom, before the learned appellate court. Consequently, the pronouncement, made by the learned Civil Judge (Jr. Divn.) concerned, upon CMA No. 200/6 of 2016, and, upon CMA No. 27/6 of 2017, was enjoined to be, given, the profoundest deference, by each of the litigating party(ies). 5. Be that as it may, despite, purported infringements, being committed by the plaintiff/noncounter claimant, vis-a-vis, the mandate recorded, by the learned Civil Judge (Jr. Divn.) concerned, upon, CMA No. 200/6 of 2016, and, upon CMA No. 27/6 of 2017, yet the defendants/counter claimant, did not, constitute any apposite motion, cast under the provisions of Order 39, Rule 2A of the CPC, before the learned trial Court, for hence, appropriate action being taken, against, the errant/non compliant plaintiff/noncounter claimant, (I) nor the aforesaid endeavour, is, preceded, by, any validly conducted demarcation, of the relevant site, with pointed depictions therein, visa-vis, the specific area or tracts, of land, whereat the path, stood barricaded, by the plaintiffs/non counter claimant. Contrarily, an application, was, preferred by the aggrieved defendants/counter claimants, whereunder, they sought, an order for police assistance, being purveyed vis-a-vis them, for, rather ensuring the removal, of, the apt barricades or obstructions, as, purportedly raised by the plaintiff/non-counter claimant, (ii) for, hence ensuring, the free user, of the path qua, wherewith, a conclusive mandate was recorded by the learned Civil Judge (Jr. Divn.) concerned, on 28.02.2017, upon CMA 200/6 of 2016, and, upon CMA No. 27/6 of 2017, (iii) AND, Upon the aforesaid motion, the impugned order was rendered, by the learned Civil Judge (Jr. Divn.) concerned. 6. A perusal of the record, as also, a reading of the impugned order, makes it vividly clear qua (i) during the pendency of the apposite application, a Local Commissioner, being appointed by the learned Civil Judge (Jr. Divn.) concerned, for, his making, the relevant spot inspection, and, his purveying a report vis-a-vis it. The Local Commissioner, did visit, the relevant site, and, in his report, there is a clear echoing, qua in his relevant spot inspection, his being accompanied, by the patwari of the patwar circle Trilokpur, and, the latter also carrying thereat, the revenue records, apposite to the suit land. He has proceeded to make a graphic display therein, of the plaintiff/non-counter claimant, not barricading the path, in respect of user whereof, a conclusive mandate, was recorded, on 28.02.2017, by the learned Civil Judge (Jr. Divn.) concerned. However, the learned trial Court, discarded the report, whereas, it proceeded, to ensure the removal of the purported barricading, of the path, by issuing apposite directions upon the SHO concerned. Undisputedly, with, the mandate pronounced, by the learned Civil Judge (Jr. Divn.) concerned upon CMA No. 200/6 of 2016, and, upon CMA No. 27/6 of 2017, acquiring conclusivity, thereupon, the plaintiff/non-counter claimant, was, enjoined, to, hence revere the apposite pronouncement, made thereunder, upon him. As aforestated, even if, assumingly, he purportedly infringed, the diktat of the order, pronounced by the learned Civil Judge (Jr. Divn.) concerned, on 28.02.2017, upon CMA No.200/6 of 2016, and, upon CMA No. 27/6 of 2017, (i) thereupon, it was open, for, the aggrieved defendants/counter claimants, to upon evident breaches, in respect thereof being made, hence cast a motion under Order 39, Rules 2-A of the CPC, . However, no such motion, was, cast by the aggrieved defendants/counter claimants, before the learned Civil Judge (Jr. Divn.) concerned. As aforestated, they sought rendition, of police help, to ensure, qua the plaintiff/non-counter claimant, hence removing, the purported barricadings, erected by him, upon his land, whereon, the defendants/counter claimants, were declared to be holding a right, of, trudging thereon, for theirs hence accessing their homestead(s), located beyond the land, exclusively owned and possessed, by, the plaintiff/non-counter claimant. 7. Divn.) concerned. As aforestated, they sought rendition, of police help, to ensure, qua the plaintiff/non-counter claimant, hence removing, the purported barricadings, erected by him, upon his land, whereon, the defendants/counter claimants, were declared to be holding a right, of, trudging thereon, for theirs hence accessing their homestead(s), located beyond the land, exclusively owned and possessed, by, the plaintiff/non-counter claimant. 7. The purveying, of, police assistance, to the aggrieved defendants/counter claimants, was, both valid and permissible under law, (i) only, upon an apposite valid demarcation report, making, with pin pointed specificity, hence depictions, qua the area or tract(s) of land, whereon, the plaintiff/non-counter claimant, had purportedly erected barricades, for, hence, preempting, the apt user thereof, as a path, by the defendants/counter claimants. However, despite, the local Commissioner visiting the spot, and, whereat he was accompanied, by the patwari, of the patwar circle concerned, who also thereat, hence carried, the relevant records, apposite, to the suit land, (ii) and, with his disapprobating, the espousal reared, by the aggrieve defendants/counter claimants, (iii) it, was, rather inappropriate for the learned Civil Judge (Jr. Divn.) concerned, to discard, his report, and, thereafter to untenably, render an order for police assistance, being provided to the aggrieved defendants/counter claimants, for, the relevant, purported barricading(s), hence being ensured to be removed by the plaintiff/non-counter claimant. Contrarily, the appropriate mode available for recourse, to the learned Civil Judge (Jr. Divn.) concerned, was, even if he was dis-satisfied, with the report of the local commissioner, to, rather appoint a Revenue Officer, as a Local Commissioner, and, upon the latter making, clear echoings, in his apposite report, preceding wherewith, a valid demarcation was carried by him, (iv) echoings whereof making a clear, candid telling bespeakings, and, also specifying, the exact place, whereat, the purported barricading, were done, by the plaintiff/non-counter claimant, (v) and, the apt barricadings also being spelt therein, to, fall within the range of the path, in respect whereof, a binding, conclusive order, stood, previously recorded by the learned Civil Judge (Jr. Divn.) concerned, (vi) conspicuously when hence they comprised the best material, for hers thereafter, making the impugned order. However, the aforesaid appropriate mode remained, un-endeavoured, to be resorted, to, by the learned Civil Judge (Jr. Divn.) concerned. In aftermath, the impugned order, is, construable to be hence vitiated. 8. For the foregoing reasons, the instant petition is allowed. Divn.) concerned, (vi) conspicuously when hence they comprised the best material, for hers thereafter, making the impugned order. However, the aforesaid appropriate mode remained, un-endeavoured, to be resorted, to, by the learned Civil Judge (Jr. Divn.) concerned. In aftermath, the impugned order, is, construable to be hence vitiated. 8. For the foregoing reasons, the instant petition is allowed. In sequel, the impugned order rendered by the learned Civil Judge (Jr. Divn.) concerned on 18.03.2017 upon CMPA No.43/6 of 2017, is, set aside. However, the matter, is, remanded to the learned Civil Judge (Jr. Divn.) concerned, with a direction that after, appointing a revenue officer, as a Local Commissioner, for his making, the relevant determinations, and, thereafter his/hers inviting the objections thereto, from, the aggrieved, hers/his thereafter proceeding, to make a fresh adjudication, upon, the extant application, cast before him/her, for rendition, of police assistance. The parties are directed to appear before the learned trial Court, on 29th June, 2018. All pending applications also stand disposed of. Records be sent back forthwith.