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2018 DIGILAW 1495 (HP)

Jagat Parkash v. Gopal Chander

2018-08-10

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The plaintiffs'' suit, for rendition, of, a declaratory decree, and, for rendition, of, a decree of injunction, (i) vis--vis, his rather holding customary rights, of, easement of necessity, of, irrigating suit Khasra No. 2835/2369, 2837/2371, and, Khasra No. 2834/2369, (ii) from, a water channel, originating from Khasra No. 2377, (iii) through the mechanism, of, a micro kuhal, hence passing through Khasra Nos 2731 and 2639, located in Mohal Sangla, rather stood decreed by the learned trial Judge. The aggrieved defendants preferred an appeal, before, the learned District Judge, and, the latter after recording apt findings, borne in paragraph-35, para whereof stands extracted hereinafter: "35. Initially, the respondent had also placed on record the copy of Naksha Riwazat Avpashi with respect to the suit land but at the time of evidence, this document had not been tendered in evidence on behalf of the respondent. However, the appellants had tendered in evidence copies of Naksha Riwazat Avpashi Ext. DW2/D, Ext. DW2/F, Ex.DW2/G, Ext. DW2/H, Ex. DW2/J, Ext. DW2/K and Ext.DW2/L. However, out of these documents, Ext. DW2/J andExt.DW2/L are relevant for the purpose of the adjudication of the dispute in question. In Ext. DW2/L, Khasra Nos 2369 and 2371 which admittedly was earlier the joint property of the parties and out of which subsequently suit land had been carved out, have been shown irrigated by "Chamlang Kuhal". It has also been referred therein that the course of the water channel has been depicted with blue ink in the map prepared during the recent settlement. The source of "Chamlang Kuhal" has been referred to as the source which has been mentioned against the kuhal mentioned at sr. No. 6 of the Naksha Riwazat Avpashi. Reference to Sr. No. 6 has been given in Ext.DW2/J. The name of the water channel against Sr. No. 6 has beenmentioned as "Rokti Kuhal" and the source thereof has been mentioned as "Rokti Khad". So if the nature of the entries made in the aforementioned documents are taken into consideration, then same go to show that the source of "Chamlang Kuhal" is "Rokti Khad" and not "Chamlang Nallah". No. 6 has beenmentioned as "Rokti Kuhal" and the source thereof has been mentioned as "Rokti Khad". So if the nature of the entries made in the aforementioned documents are taken into consideration, then same go to show that the source of "Chamlang Kuhal" is "Rokti Khad" and not "Chamlang Nallah". (iv) thereafter, proceeded to suo motu, for imperatively resting, the, controversies, arising, interse the parties at contest, rather hence make an order for remand, upon, the learned trial Judge, for the latter, hence appointing, a Local Commissioner, preferably, a revenue expert, for, hence, ensuring emanations, of, an apt report, from, the Local Commissioner, and, its being filed before the trial Judge, with clear depiction(s) therein a) with respect to the course of water channel nomenclatured as "Chamlang Nallah", and the Khasra Nos., wherethrough it passes, before touching the suit land, (v) besides permission was granted to the aggrieved, to rear objection(s), vis--vis it, before the learned trial Judge, and the latter was directed to decide the apt objections, and, thereafter, he was mandated to record a fresh decision, upon, civil suit No.21-1 of 2010, titled as Gopal Chander versus Jagat Prakash and another. 2. The defendants standing aggrieved therefrom, hence motion this Court, through, the instant appeal. 3. The learned Appellate Court, even if, was constrained to record findings, borne in paragraph-35 , and, thereafter, was constrained, to make an order for remand, upon, the learned trial Court, (i) yet for obviating uncalled for prolongation(s), of, the litigation, amongst, the parties at contest, it was rather sagacious for him, to proceed to, hence appoint a Local Commissioner, and, to elicit from him, the apt report, rather than, it making a direction upon, the learned trial Judge, after remand of the lis, to him, qua his proceeding to, appoint a Local Commissioner, for, the latter hence proceeding, to make in his apt report, hence apt unravelment(s),with respect to Khasra Nos., wherethrough, the water channel passes, and also, with respect to source thereof. 4. 4. Consequently, for obviating an imminent uncalled for prolongation(s), of, litigation, thereupon, this Court is constrained, to set aside the impugned order, and, to direct the learned first appellate Court, to proceed to appoint a Local Commissioner, for settling the controversy(s) appertaining to, the Khasra Nos., wherethrough, the water channel passes (i) and also appertaining, to, the source of ''Chamlang Nallah'' (ii) and the apt report of the Local Commissioner, be instituted before the learned First appellate Court, and, the latter Court, shall permit the aggrieved therefrom, to submit before it, their respective objection(s) thereto (iii) objection(s) whereof, shall be considered, and, decided, in accordance with law, by the learned first appellate Court. The fee of the Local Commissioner, shall be decided by the learned first appellate Court, and, shall be proportionately, borne, by the litigating parties. The parties are directed to, record their respective appearance(s), before the learned District Judge, Kinnaur at Rampur Bushahr, on 7.9.2018. The learned District Judge, Kinnaur, at Rampur Bushahr, in proceeding to make a fresh decision, upon Civil Appeal No. 0000012 of 2015, is expected, to, be not bound by the observations, made in paragraph-35, of, the impugned judgment. 5. In view of the aforesaid observations, the instant petition is disposed of. All pending application(s), if any, are also disposed of. No costs.