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2023 DIGILAW 244 (HP)

Sant Ram v. Kashmir Chand

2023-05-01

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. The instant appeal has been preferred by the appellant against judgment and decree dated 31.12.2021 passed by learned Additional District Judge, Sundernagar, District Mandi, H.P. in Civil Appeal No. 24 of 2020, whereby judgment and decree dated 07.12.2019 passed by learned Civil Judge (Senior Division), Court No.1, Sundernagar, District Mandi, H.P. in Civil Suit No.09/2008 has been set-aside and the suit has been remanded to learned trial Court with direction to appoint fresh Local Commissioner for the purposes of carrying out demarcation and thereafter decide the matter in light of the reports submitted by the Local Commissioner. 2. The parties shall be referred to by the same status as they held before learned trial Court for the sake of convenience and clarity. The appellant was defendant No.2 and proforma respondents were defendants No. 1 and 3 respectively before the trial Court. Respondents No. 1 to 7 were plaintiffs. 3. The plaintiffs had filed a suit for permanent prohibitory and mandatory injunction in respect of the land comprised in Khata/Khatauni No. 157/186 min, Khasra No. 274, measuring 04-15-02 bighas, situated in Muhal Khilra, Tehsil Sundernagar, District Mandi, H.P. (for short the suit land) and had also sought a decree of possession in alternative on the premise that in case the defendants succeeded in encroaching upon the suit land during the pendency of the suit, the same be restored to the plaintiffs. 4. Undisputed facts are that the plaintiffs were owner of land comprised in Khata/Khatauni No. 157/186 min, Khasra No. 274, measuring 04-15-02 bighas. Defendant No.1 owned land comprised in Khasra No.283, out of which she sold two separate portions measuring 0-5-4 bighas and 0-4-1 bighas respectively in favour of defendants No. 2 and 3. Initially, plaintiffs had alleged encroachment over the suit land by defendant No.3, however, during pendency of the suit, plaintiffs got the suit land demarcated from revenue agency and thereafter amended the plaint to plead that it was defendant No.2, who had encroached upon the suit land to the extent of 0-3-17 bighas by raising construction thereon. The encroached land was depicted by Khasra No. 274/1. 5. The plaintiffs placed reliance on the report of demarcation Ext.PW1/B. However, during the pendency of suit, plaintiffs and defendant No.2 preferred a joint application before the learned trial Court seeking orders for appointment of the Local Commissioner to demarcate the land in question. The encroached land was depicted by Khasra No. 274/1. 5. The plaintiffs placed reliance on the report of demarcation Ext.PW1/B. However, during the pendency of suit, plaintiffs and defendant No.2 preferred a joint application before the learned trial Court seeking orders for appointment of the Local Commissioner to demarcate the land in question. Accordingly, the Tehsildar, Sundernagar was appointed as Local Commissioner. He submitted his report exhibited on record as Ext.DW-3/A/B. The Local Commissioner had not found any encroachment on the land of plaintiffs as alleged in the plaint. 6. Learned trial Court found the demarcation conducted by the Local Commissioner to be in accordance with Chapter 10 of the Himachal Pradesh Land Records Manual as also the instructions issued for guidance of the Revenue Officers by the Financial Commissioner (Revenue) Himachal Pradesh and affirmed the same despite objections raised on behalf of the plaintiffs. Accordingly, the suit was dismissed. 7. In first appeal, learned lower Appellate Court has held the report of the Local Commissioner Ext. DW-3/1/B to be in violation of the instructions of the Financial Commissioner (Revenue). The judgment and decree passed by learned trial Court has thus been set-aside with direction to appoint the Local Commissioner afresh and to decide the matter thereafter in accordance with law. 8. Defendant No.2 has now approached this Court against judgment and decree passed by learned lower appellate Court on the grounds firstly that the report of the Local Commissioner i.e. Tehsildar, Sundernagar, Ext.DW-3/1/B could not have been set-aside as the Local Commissioner was appointed with the consent of the plaintiffs and the plaintiffs had also consented for recognition of permanent points affixed on the spot for the purpose of demarcation and, secondly, the report Ext.DW-3/1/B was strictly complying with the instructions issued by the Financial Commissioner (Revenue), Government of Himachal Pradesh for the guidance of the revenue officers. 9. On the other hand, the plaintiffs have supported the impugned judgment and decree and have submitted that the report Ext.DW-3/1/B was in utter violation of the instructions issued by the Financial Commissioner (Revenue) and was not sustainable. 10. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 11. 9. On the other hand, the plaintiffs have supported the impugned judgment and decree and have submitted that the report Ext.DW-3/1/B was in utter violation of the instructions issued by the Financial Commissioner (Revenue) and was not sustainable. 10. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 11. As a matter of fact, learned lower Appellate Court has found that the fields required to be demarcated by the Local Commissioner, did not fall within the triangle formed by the affixation of permanent points and thus, the report Ext.DW- 3/1/B violated the instruction No. (I) issued by the Financial Commissioner (Revenue), Government of Himachal Pradesh. The instruction No. (I) issued by the Financial Commissioner (Revenue), Govt. of Himachal Pradesh, reads as under: “(I). If a boundary is in dispute, the Revenue Officer or the Field Kanungo should relay it from the Village-map prepared at the last settlement. If there is a map which has been made on triangulation system (Musalas bandi) he should find three fixed recognizable points on different sides of the place in dispute as near to it as he can, which are shown in the map. These points should be such as admitted by the parties that have remained undisturbed since the last settlement.” 12. It is not in dispute that the Local Commissioner has demarcated the disputed fields on the premise that map was prepared on triangulation system. Evidently, the Local Commissioner has proceeded to fix three permanent recognizable points for the purpose of verifying the dimensions and extent of the boundaries of fields required to be demarcated. 13. It is clearly spelt out in instruction No. (I) noted above, that three fixed recognizable points have to be on different sides of the place in dispute and should be as near to it as can be. The fact that one of the fixed recognized points ascertained by the Local Commissioner was a corner of Khasra No. 274 has not been disputed before me by the parties. Such fact is otherwise evident from the record. The report Ext.DW-3/1/B as also the copy of Village-map relied at the time of demarcation Ext.DW-3/1/A, clearly evidences such fact. The fact that one of the fixed recognized points ascertained by the Local Commissioner was a corner of Khasra No. 274 has not been disputed before me by the parties. Such fact is otherwise evident from the record. The report Ext.DW-3/1/B as also the copy of Village-map relied at the time of demarcation Ext.DW-3/1/A, clearly evidences such fact. It is also not in dispute that the permanent fixed recognizable points so determined at the corner of Khasra No. 274 was determined by the Local Commissioner in the first instance and on the basis of such fixed point, other fixed points were ascertained. Khasra No. 274 was one of the fields required to be demarcated. Thus, it could not have been measured or demarcated by considering one of its corner as a fixed recognizable point. Such fixed recognizable point has to be on different sides of the place in dispute. The purpose is clear and loud that it is only with the help of fixed recognizable points found away from the field in dispute, the measurements and boundaries of the disputed field can be ascertained by carrying out the process of measurement by drawing perpendicular etc. It is not possible to demarcate with the ascertainment of any corner of the disputed field as fixed recognizable point. In such view of the matter, the impugned judgment and decree passed by learned lower Appellate Court does not warrant any interference. 14. The nature of dispute suggests that it can be adjudicated only on the basis of demarcation carried out on spot. The demarcation necessarily has to be in accordance with law. Since the demarcation Ext.DW-3/1/B carried out by the Local Commissioner is in violation of instruction No. (I) of the instructions issued by the Financial Commissioner (Revenue) to the Government of Himachal Pradesh, the same cannot be sustained. 15. In Kamal Dev and another vs. Hans Raj, reported in AIR 2000 (HP), 130, this Court has held that the violation of instruction No. (I) issued by the Financial Commissioner (Revenue) vitiates the process of demarcation and such instruction is mandatory in nature. 16. Learned trial Court had clearly misread and mis-appreciated the demarcation report Ext.DW-3/1/B. The learned trial Court was not right in holding that even a corner of disputed field could be considered as fixed recognizable point. 16. Learned trial Court had clearly misread and mis-appreciated the demarcation report Ext.DW-3/1/B. The learned trial Court was not right in holding that even a corner of disputed field could be considered as fixed recognizable point. The instruction No.(I) issued by the Financial Commissioner (Revenue) to the Government of Himachal Pradesh was also not considered by learned trial Court in right perspective. 17. As regards the objection of defendant No.2 regarding the consent given by the plaintiffs to the fixation of recognized fixed point, it can be seen from the statement made by the original plaintiff Sh. Dhani Ram before the Local Commissioner that his consent also pertained to fixation of one of the recognizable points which was a corner of Khasra No. 274. The point so ascertained may have been fixed recognizable point, but the question is whether such point could be considered for demarcating the same field of which it was one of the corners? As discussed above, the answer has to be in negative. That being so, the consent of plaintiffs on an issue which was against law will not create estoppel. Another reason for not countenancing such a consent on behalf of the plaintiffs is that he was a layman and would not be knowing the niceties of technical procedure of demarcation. It was for the Local Commissioner to have carried out the demarcation in accordance with the instructions issued by the Financial Commissioner (Revenue) to the Government of Himachal Pradesh. Further, the learned lower Appellate Court has also rightly held that the consent of plaintiffs was immaterial as he had consented for the corner of Khasra No. 18 to be the fixed recognizable point, whereas, the demarcation was finally carried out by the Local Commissioner on the basis of some other point as defendant No.2 had raised objection as to authenticity of such point in Khasra No. 18. 18. In view of above discussion, the appeal is dismissed. The impugned judgment and decree dated 31.12.2021 passed by learned Additional District Judge, Sundernagar, District Mandi, H.P. in Civil Appeal No. 24 of 2020 setting-aside judgment and decree dated 07.12.2019 passed by learned Civil Judge (Senior Division), Court No.1, Sundernagar, District Mandi, H.P. in Civil Suit No.09/2008, is affirmed. 19. The appeal is disposed of in the aforesaid terms, so also the pending miscellaneous application(s), if any.