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2020 DIGILAW 232 (HP)

Jagbir Sigh v. Ram Kishan

2020-03-16

SANDEEP SHARMA

body2020
JUDGMENT : Sandeep Sharma, J. By way of present petition filed under Article 227 of the Constitution of India, challenge has been laid to order dated 12.12.22019 (Annexure P-4), passed by learned Civil Judge, Court No.II, Una, District Una, Himachal Pradesh, in CMA No.2987/2019 in Civil Suit No.360 of 2016, titled as Jagbir Singh vs. Ram Kishan and others, whereby an application under Order 26 Rule 9 of the Code of Civil Procedure, having been filed by the petitioner (hereinafter 'plaintiff'), praying therein to appoint Local Commissioner, came to be dismissed. 2. Having heard learned counsel representing the plaintiff and perused the material available on record, especially order dated 12.12.2019, passed by learned Court below, wherein it has been categorically recorded that non-applicants/respondents ( hereinafter 'defendants') have no objection in case prayer made on behalf of the plaintiff for appointment of Local Commissioner is accepted, this Court sees no necessity to issue notice to the respondents/defendants because it would not only cause inconvenience to them, rather they would be unnecessarily burdened to engage counsel to represent them in the instant proceeding before this Court. 3. Precisely, the grouse of the plaintiff is that since despite there being repeated opportunities, defendants failed to file reply to the application under Order 26 Rule 9 CPC coupled with the fact that no objection to appoint Local Commissioner was given by learned counsel representing the defendants, learned Court below ought not have disallowed the application, rather with a view to ascertain the boundary dispute, if any, inter se parties, it should have appointed some Local Commissioner. It is borne out from the record that the plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from causing any interference and encroachment by way of raising any sort of construction or in any other manner, cutting and removing trees or ousting the plaintiff by taking forcibly possession of the suit land. 4. Defendants in their written statement while admitting themselves to be stranger to the suit land claimed that they are in possession of adjoining land bearing khasra No. 7168. 4. Defendants in their written statement while admitting themselves to be stranger to the suit land claimed that they are in possession of adjoining land bearing khasra No. 7168. Defendants claimed before the Court below that they have never threatened the plaintiff in any manner to raise construction over his portion of land, but it stands duly recorded in the order impugned before this Court that on 25.9.2019 learned counsel representing the defendants before the learned court below gave no objection for the appointment of Local Commissioner in terms of the prayer made in the application under order 26 Rule 9 CPC filed by the plaintiff. Moreover, this Court further finds from the record that keeping in view the nature of controversy inter se parties, matter came to be referred to the mediation, wherein defendants gave their no objection for appointment of Local Commissioner, but it appears that learned Court below while taking hyper technical view has proceeded to dismiss the application filed on behalf of the plaintiff. Since, there is only boundary dispute inter se parties, as is evident from the pleadings, learned Court below with a view to decide the matter for all times to come ought to have appointed Local Commissioner to ascertain the factum with regard to encroachment, if any, made by either of the parties on the land of each other. No doubt, learned Court below while allowing the application cannot create evidence in the favour of either of the parties, but in the case at hand where dispute inter se parties can be resolved merely on the basis of report of Local Commissioner, learned court below should have appointed Local Commissioner, especially when there is/was no opposition to such prayer. 5. Consequently, in view of the above, the impugned order dated 12.12.2019, passed by learned Court below, is quashed and set-aside and the application filed by the plaintiff under Order 26 Rule 9 CPC, is allowed. Tehsildar, Haroli, District Una, H.P., is appointed as Local Commissioner to carry out necessary demarcation on the spot by associating all the parties. Needless to say, Tehsildar, Haroli would do the needful strictly in terms of the instructions issued by this Court as well as Financial Commissioner. Tehsildar, Haroli, District Una, H.P., is appointed as Local Commissioner to carry out necessary demarcation on the spot by associating all the parties. Needless to say, Tehsildar, Haroli would do the needful strictly in terms of the instructions issued by this Court as well as Financial Commissioner. Necessary reference with regard to dispute inter se parties shall be made to the Tehsildar, Haroli by learned Court below on or before 4th April, 2020, enabling him to do the needful in terms of the instant order passed by this Court, within a period of four weeks, where after necessary report shall be placed on record of the learned Court below by the Tehsildar, Haroli. Learned counsel representing the plaintiff undertakes to apprise the learned Court below with regard to passing of the instant order, so that necessary steps for framing of reference are taken by the learned Court below immediately. 6. Pending applications, if any, also stand disposed of.