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2018 DIGILAW 2036 (HP)

Ghanaiya Lal @ Manohar Lal v. Diwan Chand

2018-11-20

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J. - The present review petition, under Order 47, Rules 1 and 2 of the Code of Civil Procedure and Section 114 of the Code of Civil Procedure, has been maintained by the petitioner against the impugned judgment and decree passed in Regular Second Appeal No.171 of 2006, dated 20.8.2016. 2. As per the petitioner, this Court while passing the impugned judgment, has not taken into consideration the report of Local Commissioner, on the basis of which, the judgment and decree was passed by the learned lower Appellate Court and hence, the judgment may be reviewed and Local Commissioner may be appointed to demarcate the suit land. 3. Briefly, the facts, which are necessary for determination and adjudication of the present review petition are that plaintiffpetitioner maintained a suit for permanent prohibitory and mandatory injunction against the defendants. As per the plaintiff, he alongwith other co-sharers is owner-in-possession of the land comprised in Khata/Khatauni No.82 min/100 min, Khasra No.1043, measuring 10 marlas, situated in Revenue Estate, Kakar, Tapa Mewa, Tehsil Bhoranj, District Hamirpur, H.P. (hereinafter referred to as ''suit land''). The suit land abuts Chandruhi-Sarkaghat highway and commercially valuable. On 25.2.1999, defendants started raising construction over the suit land and thereby they tried to dispossess the plaintiff. The defendants were requested to desist from raising the construction, but they turned deaf ear. 4. The defendants resisted the claim of the plaintiff by filing written statement. As per the defendants, they had not raised any construction over the suit land and they have raised the construction on their own land. 5. Mr. G.D. Verma, learned Senior Counsel appearing on behalf of the review petitioner has vehemently argued that this Court should have appointed another Local Commissioner when the report of Local Commissioner was not relied upon by this Court, which was not as per law. In support of his contentions, learned Senior Counsel has placed reliance upon the following judicial pronouncements : 1. , titled Balbir Singh vs. Pohu Khan and others, 2017 (1) (vol.43) Latest HLJ (HP), 296. 2. , titled Payani Achuthan vs. Chamballikundu Harijan Fisheries Development Cooperative Society and others , (1996) AIR Kerala 276. 3. , titled Bali Ram vs. Mela Ram and another , (2003) AIR H.P. 87. 4. , titled Haryana Waqf Board vs. Shanti Sarup and others , (2008) 8 SCC 671 . 6. On the other hand, Mr. 2. , titled Payani Achuthan vs. Chamballikundu Harijan Fisheries Development Cooperative Society and others , (1996) AIR Kerala 276. 3. , titled Bali Ram vs. Mela Ram and another , (2003) AIR H.P. 87. 4. , titled Haryana Waqf Board vs. Shanti Sarup and others , (2008) 8 SCC 671 . 6. On the other hand, Mr. Rakesh Dogra, learned counsel appearing on behalf of the respondents has argued that review petition is not maintainable and if at all, review petitioner has any grievance, he could have maintained the appeal. 7. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 8. Hon''Ble Supreme Court in Kamlesh Verma vs. Mayawati and others , (2013) 8 SCC 320 , has stipulated the grounds when the review will be maintainable. The relevant extract of the judgment is as under : 20.1. When the review will be maintainable : (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. 9. Similarly, Hon''ble Supreme Court in Union of India vs. Namit Sharma , (2013) 10 SCC 359 , has held that if a reasoning in the judgment under review is at variance with the clear and simple language in a statute, the judgment under review suffers from a manifest error of law, an error apparent on the face of the record, only then the Court can reverse or modify its decision. 10. Hon''Ble Supreme Court in Haryana Waqf Board vs. Shanti Sarup and others , (2008) 8 SCC 671 , wherein it has been held as under : "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 CPC. 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 para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected. It is also not in dispute that even before the appellate court, the appellate 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." 11. Similarly, the Hon''ble Supreme Court in Payani Achuthan, vs. Chamaballikundu Harijan Fisheries Development Co-operative Society and others , (1996) AIR Kerala 276, has held as under : "Learned counsel for the petitioner has contended that unless a Commissioner is appointed for measurement and demarcation of the land, the plaintiff and other fishermen will face difficulties in engaging themselves in the fishing operations. The main controversy in this case is as to whether the defendants are in possession of 105 acres or in excess of it, by encroaching into the land of the plaintiff. In a suit for injunction to restrain the defendants from interfering with the possession due to alleged encroachment into the land of the plaintiff, one of the methods to find out as to whether or not there is encroachment is to have the local investigation done by a competent Commissioner. In Ponnusamy vs. Salem Vaiyappamalai Jangamar Sangam , (1986) AIR Madras 33, it is observed as follows : "The object of the local investigation under O. 26, R. 9 is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but could be taken only from its peculiar nature on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner in effect is a projection of the Court appointed for a particular purpose. In this regard the implication of O. 26, R. 10 cannot be lost sight of when it says that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. A party has a right to place evidence which he could require to substantiate his case before the Court and it is the duty of the Court to receive such evidence unless there are other justifiable factors in law to decline to receive it. This right of the party to adduce evidence gets adjudicated in the interlocutory proceedings under O. 26 R. 9. When the Court declines to issue the Commission asked for to make local investigation that order certainly disposes of the right claimed by the party to place the requisite evidence on his behalf. Therefore, an order refusing to appoint a Commissioner under O. 26 R. 9 to make local investigation and report is a "case decided" and hence revisable under S. 115. I agree with the above view. The Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. Refusal of the request of the party to appoint a Commissioner under O. 26. R. 9, C.P.C to make a local investigation in an appropriate case amounts to failure of exercise of jurisdiction vested in it. In this view of the matter, I find that the impugned order cannot be sustained." 12. In Shimla Law Cases, 2018, (vol.2), titled Kangru Ram vs. Sri Ram, it is apposite to reproduce the relevant observations, which reads thus : "This is definitely a boundary dispute inter se the parties and in these circumstances, report of the Local Commissioner is very material and res integra to decide the dispute between the parties. It has come on record that the plaintiff has approached to the Revenue Authorities for demarcation. It has also come on record that earlier the demarcation was not possible due to wrong karukans. It has come on record that the plaintiff has approached to the Revenue Authorities for demarcation. It has also come on record that earlier the demarcation was not possible due to wrong karukans. In these circumstances, this Court finds that the application though not moved at the earliest and as argued by the learned Senior Counsel for the plaintiff, it was maintained late, as the plaintiff first of all wants to establish by leading evidence with respect to the boundary and boundary dispute. The net result of the above discussion is that the learned Court below was required to exercise its jurisdiction by appointing a Local Commissioner to demarcate the land as per the procedure and it cannot be said that if the Local Commissioner is appointed, the same will create evidence in favour of the plaintiff. Accordingly, the present petition is allowed and order dated 19.5.2017, dismissing the application of the petitioner-plaintiff, under Order 26 Rule 9 read with Section 151 CPC, is set aside and it is ordered that learned Court below will appoint a Local Commissioner by allowing application of the petitioner-plaintiff." 13. Now, coming the facts of the present case, the main dispute with respect of the land to the extent of 03 biswansis, which is a very small portion of land and at the same point of time, the clear evidence on record, which was considered, at the time of disposing of Regular Second Appeal shows that as per the case of defendant (respondent in the review petition), which the defendant has duly proved on record by leading clear, cogent and convincing evidence that he has raised construction much before the suit was filed. In these circumstances, the suit was not maintainable, as the construction was raised much before the suit, which as per plaintiff is on 03 biswansis of his land, but the evidence on record shows that there is no construction raised, as alleged. The matter in dispute was finally adjudicated upon by this Court in Regular Second Appeal. The aforesaid judgment (s) relied upon by the learned Senior Counsel appearing on behalf of the petitioner has gone through in detail. The matter in dispute was finally adjudicated upon by this Court in Regular Second Appeal. The aforesaid judgment (s) relied upon by the learned Senior Counsel appearing on behalf of the petitioner has gone through in detail. This Court finds that in the present case, the evidence on record and the facts, which has attained finality was clear and unambiguous that the defendant has raised construction of the shop on the alleged encroached land, which is 03 biswansis much prior to filing of the present suit making the suit beyond limitation and in these circumstances, even if, Local Commissioner is ordered to be appointed that will be of no consequence, as otherwise also, suit of the plaintiff was not maintainable. However, as far as review petition is concerned, as has been discussed hereinabove and the law laid down by the Hon''ble Apex Court that there is no discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him or there is mistake or error apparent on the face of the record nor there is any other sufficient reason to review the judgment passed by this Court. 14. This Court after going through the record finds that there is no error apparent on the face of judgment, which calls for review. So, the review petition is without merits and dismissed, as such. No order as to costs.