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2019 DIGILAW 746 (HP)

Mool Raj v. Sonam Angroop

2019-06-20

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Article 227 of the Constitution of India, is maintained by the petitioner for quashing and setting aside the impugned order, dated 22.12.2016, passed by the learned Civil Judge (Junior Division), Manali, District Kullu, whereby an application under Order 26 Rule 9 of the Code of Civil Procedure, was dismissed. 2. The key facts, giving rise to the present petition are that the petitioner-plaintiff (hereinafter referred to as 'plaintiff’) has maintained a suit for permanent prohibitory injunction against the respondent-defendant (hereinafter referred to as 'defendant’) alleging that the plaintiff is owner-in-possession of the land measuring 0-01-58 hectares, comprised in Khasra No.1627, 1648, 1649, Khata/Khatauni No.281/336, situated at Muhal Bari Phati Bari Kothi, Baragarh, Tehsil Manali, District Kullu, H.P (hereinafter referred to as 'suit land’), whereas the defendant is neither owner nor co-sharer of the suit land, rather, the defendant is a stranger to the suit land and has no right, title or interest over the suit land and he is causing unlawful interference in the suit land threatening to demolish 'Khokha’ in Khasra No.1627 and to raise permanent structure over the suit land and encroach upon the suit land to grab the same and to dispossess the plaintiff from the suit land. The defendant filed written statement and admitted that Khasra No.1627, was got recorded in the name of plaintiff. Thereafter, the plaintiff moved an application under Order 26 Rule 9 read with section 151 of the Code of Civil Procedure, for appointment of Local Commissioner, whereby the said application was dismissed, vide order dated 22.12.2016. 3. Feeling aggrieved, the impugned order, dated 22.12.2016, passed by the learned Trial Court, the plaintiff maintained the present petition. 4. Learned counsel appearing on behalf of the plaintiff has argued that the present dispute with respect to the boundary is as per the law laid down by this Hon’ble Court rendered in 2017 (3) Himachal Law Reporter, 1413, titled Som Nath vs. Gurdev, decided on 8.5.2017, wherein a Local Commissioner was appointed. On the other hand, Mr. Bhupender Gupta, learned Senior counsel appearing for the defendant has vehemently argued that there is no dispute with respect to the title. 5. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 6. On the other hand, Mr. Bhupender Gupta, learned Senior counsel appearing for the defendant has vehemently argued that there is no dispute with respect to the title. 5. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 6. After going through the record, an application under Order 26 Rule 9 of the Code of Civil Procedure, was filed by the plaintiff for appointment of Local Commissioner, wherein he has averred before the learned Court below that the plaintiff is owner-in-possession of the land bearing Khasra No.1627, 1648 and 1649 and the defendant is raising construction over Khasra No.1627. As per the defendant, land bearing Khasra No.1627 was previously Government land in the revenue record and the same has been coming in peaceful, continuous and hostile possession of the defendant and public at large for the last more than 40-45 years. Thereafter, in the year 1995, the plaintiff in connivance with the settlement/revenue officer/officials got recorded this land in his name and that act of the plaintiff is totally illegal, as there are simple mere paper entry qua this land in the name of the plaintiff. There is no record with the revenue department, as to how and in what capacity, land bearing Khasra No.1627 was got recorded in the name of the plaintiff. The plaintiff, in connivance with the revenue officials, got this land granted in his favour without spot verification. The plaintiff never came in possession of land of Khasra No.1627 and the same is in settled and peaceful possession of the defendant. Hence, the revenue entries qua land of Khasra No.1627, in the name of the plaintiff, are wrong and the same are liable to be corrected. It is further averred that during the pendency of suit, the defendant has raised the structure/building over the suit land despite the stay order. As a matter of fact, Leela Devi, maintained an application for correction of revenue entries qua the suit land before the Settlement Officer, Kangra. It is further averred that during the pendency of suit, the defendant has raised the structure/building over the suit land despite the stay order. As a matter of fact, Leela Devi, maintained an application for correction of revenue entries qua the suit land before the Settlement Officer, Kangra. Consequent upon such application, demarcation was carried out qua the suit land and at the time of demarcation, it was found that the land of the plaintiff is at some other place as 'MULLAKHA’ of the land of the plaintiff has wrongly been shown and as per the said demarcation, the plaintiff has not been found in possession of the land comprised in Khasra Nos.1627 and 1649. The spot, which the plaintiff is claiming to be in his possession, is shown to be a forest land on spot verification. The building of the defendant has been already existing over the land much before the filing of the suit that too over the Government land. 7. After hearing the learned counsel appearing on behalf of the parties, this Court finds that the dispute is not with respect to the boundary, so, the aforesaid judgment (supra) as citied by the learned counsel appearing for the petitioner, is not applicable to the facts and circumstances of the present case. The dispute between the parties is with respect to the ownership and possession of Khasra No.1627 and it is the suit for title only. In these circumstances, the plaintiff wants to create evidence in his favour by getting the Local Commissioner appointed. It is for the parties to prove their case, as in the instant case, there is no dispute with respect to the boundary and neither it is pleaded nor it is otherwise come in the record of learned Court below. So, this Court finds that in these circumstances, there is no illegality and infirmity in the impugned order, dated 22.12.2016, passed by the learned Trial Court. Otherwise also, the jurisdiction under Article 227 of the Constitution of India, is not required to be exercised in the present case, as the impugned order passed by the learned Trial Court is just and reasoned and after appreciating the facts, which have come on record to its true perspective. 8. In view of what has been stated hereinabove, the present petition sans merits, deserves dismissal and is accordingly dismissed. No order as to costs. 8. In view of what has been stated hereinabove, the present petition sans merits, deserves dismissal and is accordingly dismissed. No order as to costs. Parties through their learned counsel are directed to appear before the learned Court below on 16th July, 2019. Pending application (s), if any, also stand (s) disposed of.