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2019 DIGILAW 1660 (HP)

Ram Parkash (Since Dead) v. Sudesh Kumari

2019-11-06

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present petition is maintained by the legal representatives (hereinafter referred to as "the petitioners") of Shri Ram Parkash, who was the original defendant before the learned Trial Court (since dead) under Article 227 of the Constitution of India against order dated 08.05.2019, passed by learned Civil Judge-cum-Judicial Magistrate 1st Class, Barsar, District Hamirpur, H.P. whereby the objections filed by the petitioner were rejected and the demarcation report of Local Commissioner was confirmed. 2. As per the petitioners, the respondent herein maintained a suit against Shri Ram Parkash, who was the original defendant, in the learned Trial Court under Specific Relief Act, for fixation of boundary through demarcation and for permanent prohibitory injunction restraining the defendant from raising any construction or changing the nature of land comprising in Khata No. 199, Khatauni No. 232, Khasra No. 1281, 1282, Kita 2, measuring 14 marlas situated in Tika Barsar, Tappa Pangran, Tehsil Barsar, District Hamirpur, H.P. (hereinafter referred to as "the suit land"). The petitioners further averred that during the pendency of the suit he moved an application under Order 26, Rule 9 CPC for appointment of Local Commissioner and in consequence thereto the learned Trial Court appointed a retired Tehsildar, as Local Commissioner to demarcate the land. He conducted the demarcation of the land and submitted his report in the learned Court below alongwith the statement of Smt. Sudesh Kumari (respondent herein). Subsequently, objectors filed objections to the said demarcation report alleging that no valid service was effected upon the objectors and no signatures were obtained on the notices, so service of notices upon the objectors is not valid. It was further contended that on 07.05.2018 Local Commissioner reached the spot and he did not record the statements of objectors qua the pucca bannas on the spot. Instead, the Local Commissioner reported in his report that pucca banna was located i.e. Khasra No. 1279, actually Khasra No. 1279 was not a pucca banna/fixed point. As per the objectors, on Khasra No. 1279 there is a building, so the area cannot be measured. It was reported by the Local Commissioner that there are buildings on the spot and no vacant space is there, so jareb (measurement instrument) could not be used, so pucca banna was not located on the spot. As per the objectors, on Khasra No. 1279 there is a building, so the area cannot be measured. It was reported by the Local Commissioner that there are buildings on the spot and no vacant space is there, so jareb (measurement instrument) could not be used, so pucca banna was not located on the spot. The objectors further averred that Khasra No. 1278 had been partitioned among the share-holders and objectors have been allotted Khasra No. 1278/1, measuring 0K-6 Marlas, but the Local Commissioner did not measure Khasra No. 1278/1, measuring 0k-06 Marlas on the spot, as during the partition, tatima was deducted by the then Revenue Field Staff on the spot, but the Local Commissioner did not locate the boundaries of Khasra No. 1278/1 on the spot, where the objectors have constructed their shops and Khasra No. 1278/1 is touching with the old road which goes to the Veterinary hospital on the spot and area of Khasras No. 1281, 1282, is touching National Highway, upper side of Khasra No. 1278/1, so there is no boundary touching old road of the suit land, i.e. Khasras No. 1281 and 1282. The objectors averred that there is no middle maind existing on Khasras No. 1279 and 1280, but surprisingly the Local Commissioner reported that he took 10 Karams from middle line of Khasras No. 1279 and 1280. The Local Commissioner did not record the statements of the parties when he located points AB. As per the objectors, the entire process of the demarcation by the Local Commissioner is against the law. The Local Commissioner failed to ascertain the three pucca points and he himself mentioned in his report that only one point was fixed and other points, i.e. B and C could not be fixed due to buildings on the spot. The Local Commissioner, in order to benefit the plaintiff (respondent herein) wrongly depicted the encroachment upon Khasra No. 1281, the encroachment which had been shown in Khasra No. 1278, i.e. Khasra No. 1278/1, measuring 0k-6 Marlas, where the objectors have constructed their shops in the lower side touching with old road on the spot. The Local Commissioner, in order to benefit the plaintiff (respondent herein) wrongly depicted the encroachment upon Khasra No. 1281, the encroachment which had been shown in Khasra No. 1278, i.e. Khasra No. 1278/1, measuring 0k-6 Marlas, where the objectors have constructed their shops in the lower side touching with old road on the spot. As per the objectors karu-kan of Khasras No. 1279, 1280 to the eastern side and southern sides are misprint in Aks Musabi in the year 1986-87 and not readable, so how the Local Commissioner have measured Khasra No. 1279 and line of Khasras No. 1279, 1280, 1281, 1282, 1283, 1284, 1285 and 1286, which are touching the line of Khasras No. 1304 and 1295 are not readable, then how the Local Commissioner have measured the land on the spot. With the above averments the petitioners prays that the petition be allowed and order dated 0-8.05.2019, passed by learned Court below in CMA No. 411 of 2018 in Civil suit No. 102 of 2005, may be quashed and set aside. 3. The respondent herein refuted the contentions of the objectors by filing reply in the learned Trial Court. The respondent contended that the demarcation was conducted as per the settled procedure. It was further averred that upon the application of the objector Local Commissioner was appointed, so the applicant/objector had full knowledge about the visit of the Local Commissioner. As per the respondent, some of the area of Khasra No. 1279 on the spot is vacant, so the measurement was done in presence of Shri Santosh Kumar, one of the petitioners herein. The middle line of Khasras No. 1279 and 1280 was measured and found 10 karams and the parties admitted its correctness as pucca banna. The respondent denied that Khasra No. 1278 was demarcated inter se the co-sharers. The respondent has further averred that the Local Commissioner demarcated the suit land and shop of the objectors, to the extent of 0K-2 marlas was found existing on Khasra No. 1282/1, thus tatima was prepared. The respondent admitted that Khasras No. 1281 and 1281 touch the National Highway. It is averred that the objector has forcibly encroached over the suit land during the pendency of the suit. As per the respondent, the Local Commissioner took middle line of Khasras No. 1279 and 1280 as pucca point. The respondent admitted that Khasras No. 1281 and 1281 touch the National Highway. It is averred that the objector has forcibly encroached over the suit land during the pendency of the suit. As per the respondent, the Local Commissioner took middle line of Khasras No. 1279 and 1280 as pucca point. The Local Commissioner did not show any encroachment over Khasra No. 1281 and encroachment was found over Khasra No. 1281/1. It is further contended that the demarcation was carried out by the Local Commissioner is in accordance with law. With the above precise contentions, in reply to the objections filed against the report of the Local Commissioner, the respondent sought dismissal of the objections so filed by the objector. 4. The learned Court below, in order to decide the objections examined the Local Commissioner, Shri Bhola Nath, who demarcated the spot and also scrutinized the records and ultimately, vide order dated 08.05.2019, dismissed the objections, hence the present petition. 5. Precisely, the petitioners have alleged that the impugned order is highly illegal, arbitrary and perverse and the same is liable to be quashed and set aside. As per the petitioners, the Local Commissioner did not ascertain or take pucca points, the Local Commissioner made a reference in his report qua a maind, but no such maind exists on the spot. The petitioners further averred that the report of the Local Commissioner is contrary to the entries in the jamabandi. There are so many flaws in the demarcation conducted by the Local Commissioner, but the learned Court below ignored all these aspects and dismissed the objections of the petitioners, thus the petitioners maintained the present petition with a prayer that the impugned order may be quashed and set aside. 6. The learned Senior Counsel for the petitioners has argued that the demarcation was conducted by the Local Commissioner without associating the objectors and when there were houses existing on the land and jareb (measurement tool) could not be used, so there is no question that the demarcation was correctly done, as it is against the settled law and rules. He has further argued that demarcation, in these circumstances, is required to be set aside and the learned Court below is required to adjudicate the matter without considering the demarcation report, so submitted by the Local Commissioner. He has further argued that demarcation, in these circumstances, is required to be set aside and the learned Court below is required to adjudicate the matter without considering the demarcation report, so submitted by the Local Commissioner. He has argued that as the demarcation conducted by the Local Commissioner is not in accordance with the law and rules, so the present petition be allowed and impugned order dated 08.05.2019, passed by the learned Court below in CMA No. 411 of 2018, in Civil Suit No. 102 of 2005, may be quashed and set aside. Conversely, the learned Counsel for the respondent has argued that the demarcation was conducted on the application preferred by the original defendant. He has further argued that one pucca point was taken and sons of the objector and other parties were present on the spot. The present petitioners concealed the fact qua the death of their mother, so they have not come to this Court with clean hands, so in these circumstances also the petition is not maintainable. He has further argued that the demarcation was conducted after taking a pucca point and as per the settled procedure laid down, so the learned Court below has rightly dismissed the objections, so filed by the objectors to the demarcation report. The present petition sans merits, so it may be dismissed. 7. In rebuttal, the learned Senior Counsel for the petitioners has argued that the Local Commissioner has conducted the demarcation dehors the rules and procedure, so the interest of justice would only be met if the demarcation report of the Local Commissioner is set aside and the petition is allowed. 8. I have heard the learned Senior Counsel for the petitioners, learned Counsel for the respondent and carefully examined the material on record. 9. Sh. Bhola Nath, the Local Commissioner, who was appointed by the learned Court below, who conducted the demarcation, while deposing in the Court below, has stated that upon the order of the Court he conducted demarcation of Khasras No. 1281 and 1282. He has further stated that notices, qua demarcation, were issued to the parties and on 07.05.2018, in presence of the parties, he carried out demarcation. He has further stated that notices, qua demarcation, were issued to the parties and on 07.05.2018, in presence of the parties, he carried out demarcation. He found encroachment by Smt. Preeto Devi wife of late Shri Ram Parkash, Shri Santosh Kumar, Naresh Kumar and Sanjay Kumar (sons of deceased Shri Ram Parkash, the original defendant) over Khasra No. 1281/1, measuring 0-2 Marlas, and the encroachment was in the shape of shops. Subsequently, he prepared demarcation report, Ex. OEW1/C. He has further stated that statement of Smt. Sudesh Kumari (respondent herein) is Ex. OEW1/F and certified copy of Aks is OEW1/G. This witness, in his cross-examination, has deposed that Smt. Sudesh Kumari was present on the spot at the time of demarcation and feigned ignorance qua Smt. Preeto Devi. He did not record the statement of the parties qua fixation of pucca banna and measured in between Khasras No. 1279 and 1280 and considered it as pucca banna. He has further deposed that he marked points A & B. As per his version there are houses over Khasras No. 1281, 1282 and Khasra No. 1282 is 8 marlas. There exists a field on the spot and walls of the houses. The lines drawn on Aks Musabi, Ex. OW1/G, was considered as maind for carrying out demarcation. He has ascertained only one pucca point, as there were houses on the spot towards east, west and north sides. He has further deposed that houses are on north and south sides and the road is on the east and west side. This witness tendered a copy of notification, Ex. OEW1/H, qua demarcation. He stated that he conducted the demarcation of adjoining Khasra No. 1278 of objectors and it was found to be partitioned, but the partition proceedings were set aside, as he was apprised on the spot. 10. As far as demarcation is concerned, the record transpires that Smt. Preeto Devi had already expired and her name was ordered to be deleted on 08.06.2012 and the objectors have misled this Court and the learned Court below on this aspect. As far as identification of fixed points on the spot is concerned, it has specifically come in the report of the Local Commissioner that fixed points, i.e. A & B were identified by measuring Khasra No. 1279 from all sides. As far as identification of fixed points on the spot is concerned, it has specifically come in the report of the Local Commissioner that fixed points, i.e. A & B were identified by measuring Khasra No. 1279 from all sides. The Local Commissioner measured the maind existing in between Khasras No. 1279 and 1280 and found it to be correct, as per the spot position. The Local Commissioner further deposed specifically that no other fixed point could be located on the spot, as on the northern side of the land there exists house and on the eastern and western side there is a road. So, he measured point A from Khasras No. 1280, 1281, 1282 and 1283 and in this respect he placed on record a notification of Revenue Department which stipulates that when even two fixed recognizable points are not available and only one point is found, the reliability of such point can be tested by measuring all sides of the fields surrounding the point. If, measurement of such fields tally with the map then the accuracy of such a point itself gets established. 11. In the instant case, as per the report of the Local Commissioner he measured all sides of Khasra No. 1279 prior to fixing the pucca point and this fact has been admitted by the parties present on the spot. After fixing this solitary pucca point, the Local Commissioner carried out the demarcation, so the objectors, at this stage cannot say that no pucca point was fixed by the Local Commissioner prior to demarcation. 12. The objectors are contending that the Local Commissioner ignored partition of Khasara No. 1278, but the Local Commissioner, while deposing in the Court, deposed that partition proceedings of Khasra No. 1278 were set aside. Even for a moment it is believed that Khasra No. 1278 stood partitioned, then also onus of proving and placing documents qua the partition was on the objectors. The objectors did not bother to bring on record ocular and documentary evidence qua the partition. Thus, the objection that the Local Commissioner did not consider partition of Khasra No. 1278 is not tenable. The Local Commissioner further stated that he conducted the demarcation as per the dimensions mentioned in Sajra and Aks Musabi. The objectors did not bother to bring on record ocular and documentary evidence qua the partition. Thus, the objection that the Local Commissioner did not consider partition of Khasra No. 1278 is not tenable. The Local Commissioner further stated that he conducted the demarcation as per the dimensions mentioned in Sajra and Aks Musabi. The objector has also raised objection to this effect and contended that Karu Kan of Khasras No. 1279 and 1280 to eastern and southern sides, according to musabi for the year 1986-1987, are not legible, so the Local Commissioner conducted wrong demarcation by measuring Khasra No. 1279 and lines of Khasras No. 1280, 1281, 1282, 1283, 1284, 1285 and 1286, which touch Khasras No. 1293 and 1294. This contention of the objectors could have some force, but the records show that Karu Kans of the above Khasras No. are not misprint and they are legible and readable. In fact, Aks Musabi clearly shows Khasras No. 1279 and 1280. So, this objection seems to have been taken only for the sake of objection with feeble and nonexistent basis. 13. In view of the above, the demarcation conducted by the Local Commissioner is as per the existing position on the spot and it cannot be set aside, as one pucca point was taken. The Local Commissioner conducted the demarcation after fixing the pucca point and measuring it from Khasras No. 1280, 1281, 1282 and 1283, so the demarcation conducted by the Local Commissioner is not tainted in any way. The demarcation was conducted as per the settled procedure and rules and furthermore the demarcation report is not conclusive piece of evidence and it is only one of the evidences which the Court has to consider with other evidences available on record. 14. In view of what has been discussed hereinabove, this Court finds that the petitioners have failed to show that how the impugned order passed by the learned Court below is perverse. Under these circumstances, the petition, which is devoid of merits, deserves dismissal and is accordingly dismissed. No costs. With the disposal of the main petition, pending miscellaneous applications, if any, shall also stands disposed of. 15. The parties are directed to appear before the learned Court below on 29.11.2019.