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Himachal Pradesh High Court · body

2019 DIGILAW 882 (HP)

Ram Rattan v. Kamli Devi

2019-07-05

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner has assailed order dated 12.05.2017, passed by the Court of learned Civil Judge (Junior Division), Court No. II, Solan in CMA No. 227/6 of 2016 in Civil Suit No. 108/1 of 2010, vide which, an application filed by the petitioner, who is the plaintiff before the learned Trial Court for appointment of a Local Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure has been dismissed. 2. Brief facts necessary for the adjudication of the petition are that petitioner herein has filed a suit for possession of part of the suit land on the basis of title and also for a decree of permanent prohibitory as also mandatory injunction against the defendants, inter alia, on the ground that the defendants have encroached upon the portion of the suit land, which is owned by the plaintiff. 3. Record demonstrates that during the pendency of the suit, an application was filed under Order XXVI Rule 9 of the Code by the plaintiff for demarcation of the suit land, however, the same was dismissed by the learned Trial Court vide order dated 28.02.2015 (Annexure P-6) by inter alia holding that as the parties were yet to lead their evidence and alleged dispute as averred by the plaintiff was at the stage of pleadings only, the application was not maintainable at that stage. 4. It is also borne out from the record as per the averments made in the pleadings submitted on behalf of the petitioner/plaintiff that for the purpose of demarcation of the land in dispute, he approached the Revenue Authorities, however, despite this, no action was taken by the Revenue Authorities to carry out the demarcation of the disputed land. In these circumstances, another application was filed by the present petitioner under Order XXVI Rule 9 of the Code, though at a slightly belated stage, i.e., after the respective parties had led their evidence and the matter was fixed for arguments. In these circumstances, another application was filed by the present petitioner under Order XXVI Rule 9 of the Code, though at a slightly belated stage, i.e., after the respective parties had led their evidence and the matter was fixed for arguments. This application has been rejected by the learned Court below vide impugned order, i.e., order dated 12.05.2017 by inter alia holding that as the matter was being listed for arguments since 21.07.2016 and the application was filed by the plaintiff on 23.09.2016, the Court must be vigilant and must see that the parties are not stalling the proceedings, otherwise, it would lead to travesty of justice. 5. Feeling aggrieved, the petitioner/plaintiff has filed the present petition. 6. Learned counsel for the petitioner has argued that the impugned order is prima facie perverse, as learned Court below has erred in not appreciating that it was a fit case wherein the Court should have had exercised its jurisdiction as vested under the provisions of Order XXVI Rule 9 of the Code, because the dispute between the parties being a boundary dispute and the petitioner already having filed application before the Revenue Authorities for demarcation, had no option but to approach the Court under Order XXVI Rule 9 of the Code with the prayer for appointment of a Local Commissioner, when revenue staff was not carrying out demarcation. He also argued that the order passed by the learned Court below is otherwise also a cryptic order, because the provisions of Order XXVI Rule 9 of the Code per se do not contemplate a particular stage for filing such an application and it was incumbent upon the Court to have had passed a reasoned order within the ambit of provisions of Order XXVI Rule 9 of the Code if the application filed by the petitioner was not finding merit with it. According to learned counsel, the same could not have been dismissed simply on the ground that as the application has been filed at the stage of hearing of the parties, the same was filed to stall the proceedings. Learned counsel has further argued that the application filed under Order XXVI Rule 9 of the Code was a self speaking application. According to learned counsel, the same could not have been dismissed simply on the ground that as the application has been filed at the stage of hearing of the parties, the same was filed to stall the proceedings. Learned counsel has further argued that the application filed under Order XXVI Rule 9 of the Code was a self speaking application. It contained all the averments as to why the application was filed at that stage and none of the reasons which were mentioned in the application have been touched and dealt with in the impugned order. In these circumstances, it has been prayed that the petition be allowed and the impugned order be set aside. 7. On the other hand, learned counsel for the respondents has argued that the order passed by the learned Court below cannot be said to be a perverse order, because learned Court below has rightly held that the application was filed just to stall the proceedings, as it is apparent from the record that the same was filed at the stage of hearing. He has further argued that because the petitioner, i.e., the plaintiff had alleged encroachment, therefore, onus was upon him to have had proved this fact and it is not for the Court to garner or gather evidence for the parties. He has also argued that in case one peruses the evidence which has come on record, from the same it is apparent that the plaintiff has not been able to prove his case and therefore, filing of the application is nothing but an attempt to fill up the lacunae. He further argued that in view of the fact that plaintiff had closed his evidence on 18.05.2015 by giving up one of the cited witnesses, who was a Revenue Officer, therefore also, rejection of the application by the learned Court below is justifiable in the facts of the case. Learned counsel has also relied upon the judgment of this Court in Liaquat Ali Vs. Amir Mohammad and others,2016 LatestHLJ 2016 831 . 8. I have heard learned counsel for the parties and have also gone through the impugned order as also other documents appended with the petition. 9. Learned counsel has also relied upon the judgment of this Court in Liaquat Ali Vs. Amir Mohammad and others,2016 LatestHLJ 2016 831 . 8. I have heard learned counsel for the parties and have also gone through the impugned order as also other documents appended with the petition. 9. A perusal of the record demonstrates that the suit which has been filed by the petitioner/plaintiff is for possession of part of the suit land, on the basis of title and the allegation against the defendants therein is that they have encroached upon the suit land. It is also evident from the record that earlier an application was filed by the petitioner under Order XXVI Rule 9 of the Code with the prayer for appointment of a Local Commissioner to carry out the demarcation of the land, however, the same was rejected by the Court vide order dated 28.02.2015 on the ground that the same was premature. In these circumstances, what the Court now has to assess is as to whether the rejection of the subsequent application filed by the petitioner under Order XXVI Rule 9 of the Code in the facts of the case is justified or not? 10. It is not in dispute that the subsequent application was filed by the petitioner after both the parties had closed their evidence and the matter was being taken up by the learned Trial Court for arguments. The application which was subsequently filed by the petitioner is appended with the petition as Annexure P-11. A perusal of the averments made in the said application demonstrates that it was mentioned in the said application that applicant, i.e., the petitioner had moved an application for demarcation of the suit land, but no action was being taken by the Revenue Authorities on the same. It further stood mentioned in the application that the controversy between the parties pertained to a boundary dispute and it would be in the interest of justice in case a Local Commissioner is appointed for demarcation of the suit land, as the applicant/petitioner had already approached the Revenue Authorities for the said purpose, who were not acting on his application and in these circumstances, only option left to him was to approach the Court by filing an application under Order XXVI Rule 9 of the Code 11. Reply filed to the said application demonstrates that the same was inter alia resisted on the ground that the applicant/petitioner had not supplied any particulars with regard to the application allegedly filed by him to the Revenue Authorities for getting the suit land demarcated and as earlier application filed for the same relief stood rejected by the learned Court, therefore, subsequent application also deserved rejection, as the application was being filed just to harass the respondents. 12. A perusal of the impugned order passed by the learned Trial Court demonstrates that there is no discussion made in the said order on merit with regard to the respective contentions taken therein by the parties concerned. Suffice it to say that except observing that the application stood filed by the petitioner/plaintiff at a belated stage and was an attempt to stall the proceedings, no other reasoning has been assigned by the learned Trial Court while rejecting the application. It has not dealt with the specific averments made by the petitioner/plaintiff before it that in view of the fact that the petitioner had already approached the Revenue Authorities for the purpose of demarcation of the land, who were not carrying out the required demarcation, the petitioner was not having any other option but to approach the Court for the purpose of getting the land demarcated by appointment of a Local Commissioner. 13. It is settled law that when there is a boundary dispute between the parties, then it is in the interest of justice in case a Local Commissioner is appointed to have the land demarcated, because the same facilitates the Court in arriving at a just conclusion in order to dispense justice between the parties. The judgment relied upon by the learned counsel for the respondents has no applicability in the facts of the said case, because it has not been held by the Co-ordinate Bench of this Court in the said judgment that even in a case where a party approaches the Revenue Authorities for the purpose of demarcation of the land and no action is taken by the Authorities therein, then also subsequent application filed under Order XXVI Rule 9 of the Code by the said party deserves rejection. 14. 14. In my considered view, in the peculiar facts of the case, learned Trial Court rather than passing a mechanical order, ought to have gone into all the averments which stood mentioned by the petitioner/plaintiff in the application and ought to have allowed the same by ordering the appointment of a Local Commissioner for the purpose of demarcation of the suit land to find out as to whether there was any encroachment upon the same by the defendants, as alleged or not. 15. In view of the specific contention of learned counsel for the respondents that during the course of evidence led by the parties, the plaintiff has failed to demonstrate that there is any encroachment upon the suit land is concerned, in my considered view, the respondents should not shy away from the land being demarcated by way of appointment of a Local Commissioner, because if there is no encroachment upon the land by them, then it is in their interest that such a demarcation be carried out, to falsify the case of plaintiff. 16. Accordingly, in view of the observations made hereinabove, the impugned order dated 12.05.2017 is set aside and the application filed by the petitioner/plaintiff for demarcation of the suit land is allowed. Tehsildar, Solan is directed to demarcate the suit land in accordance with law within a period of four weeks from today, after giving prior intimation to the parties concerned. Report thereof be taken on record by the learned Trial Court and thereafter, learned Trial Court may proceed with the matter in accordance with law. The expenses for carrying out the demarcation by the Revenue Authorities are assessed at Rs.5,000/-, which shall be deposited by the present petitioner with Tehsildar, Solan within a period of four weeks from today. The petition stands disposed of in above terms, so also pending miscellaneous applications, if any.