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2024 DIGILAW 313 (HP)

Om Parkash v. Jarnail Singh @ Ricky

2024-05-02

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J Petitioner has assailed order dated 01.04.2023, passed by learned Senior Civil Judge, Court No. 1, Amb, District Una, H.P. in CMA No. 81-VI-2023 tagged with Civil Suit No. 209/1 of 2012, by way of instant petition. 2. Petitioner herein is the original plaintiff in Civil Suit No. 209/1 of 2012 before learned Trial Court. Respondents herein are the defendants. Respondents No. 1 and 2 herein are the only contesting defendants before learned Trial Court. The parties hereafter shall be referred to by the same status as they hold before the learned Trial Court. 3. Plaintiff filed a suit for permanent prohibitory injunction against defendants in respect of land comprised in Khewat No. 68 min., Khatoni No. 209, Khasra No. 2372 measuring 0-01-58 Hectares, situated in village Amlehar Tehsil, Amb, District Una, H.P. (for short “the suit land”) by claiming himself to be a co-owner in possession thereof. Defendants were initially alleged to be interfering in the rights of plaintiff qua suit land and on that basis decree of permanent prohibitory injunction was sought. 4. During the pendency of the suit, plaintiff amended the plaint by alleging that after filing of the suit and despite the passing of interim injunction order by the Court, defendants had made encroachment upon suit land and therefore, a decree for possession by way of mandatory injunction by demolition and removal of the super structure/construction raised by defendants and by restoring the suit land to its original possession has been sought. 5. Post amendment in the plaint, plaintiff filed an application under Order 26 Rule 9 of the Code of Civil Procedure, for appointment of Local Commissioner to demarcate the land in order to ascertain the extent of encroachment on the suit land. Defendants contested the prayer for appointment of Local Commissioner. 6. Learned Trial Court has dismissed the application under Order 26 Rule 9 of the CPC, of the plaintiff, on the grounds firstly, that the plaintiff had the available remedy to get the demarcation from Revenue Officer by invoking the provisions of Section 107 of H.P. Land Revenue Act and secondly, that the Court was not to be used as an agency for collection of evidence. 7. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 8. 7. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 8. Order 26 Rule 9 of the Code, vests the Court with jurisdiction to issue a commission for making a local investigation in case the Court deems such investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or to ascertain the market value of any building, or the amount of any mesne profits or damages or annual net profits. In the case in hand, learned Trial Court was called upon to exercise jurisdiction by ordering local investigation by appointing a Revenue Officer to demarcate the suit land. The plaintiff has alleged the encroachment on the suit land and the defendants have denied such allegation. 9. In order to prove the allegation of encroachment, evidence in the shape of ascertainment of boundaries of suit land and the extent of encroachment, if any, made thereon is required. Such evidence can be in the form of demarcation report prepared by the Revenue Officer in exercise of powers under H.P. Land Revenue Act. 10. The impugned order reveals that even learned Trial Court has not held that the demarcation was not necessary in the given facts of the case. What has been held is that the plaintiff can avail of remedy under Section 107 of H.P. Land Revenue Act, by getting the suit land demarcated from the Revenue Officer and since plaintiff has failed to do so, the Court was not to fill-up the lacunae by appointing Local Commissioner. 11. H.P. High Court Rules and Orders, Vol. (I), contains a provision in respect of cases where boundary dispute is involved as under:- “1. In "Hadd-Shikni" suits and other suits of boundary disputes of land failing within the jurisdiction of a Civil Court it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways:- (a) by suggesting that one party or the other should apply to the Revenue Officer to fix the limits under Section 101(1) of the Punjab Land Revenue Act. Time for such purpose should be granted under Order XVII, Rule 3, of the Code of Civil Procedure, (b) by appointing a local commissioner, and (c) by the Court itself making a local enquiry." 12. Time for such purpose should be granted under Order XVII, Rule 3, of the Code of Civil Procedure, (b) by appointing a local commissioner, and (c) by the Court itself making a local enquiry." 12. Thus, one of the ways prescribed for settlement of boundary dispute is by appointing Local Commission. It, however, does not mean that the Court is bound to issue commission in every case of boundary dispute, merely, on the asking of a party. In exercise of jurisdiction under Order 26 Rule 9 of the Code of Civil Procedure, the Court has to see the bonafides of the party asking for appointment of commission. In assessing the bonafides one of the parameters can be to see whether the party applying for appointment of commission to demarcate the land had sufficient opportunity to avail the remedy under Section 107 of the H.P. Land Revenue Act. It will be relevant for the reason that the procedure prescribed under H.P. Land Revenue Act, for demarcation requires considerable time. The order passed by the Revenue Officer on completion of demarcation proceeding is amenable to appeal and further revision under H.P. Land Revenue Act. In case when the alleged encroachment on one’s land precedes the filing of the suit, plaintiff may not have reason to file the suit without firstly ascertaining the nature and extent of encroachment, if any, by resorting to the remedy available under Section 107 of the H.P. Land Revenue Act. However, if the encroachment is alleged to have taken place after filing of the suit, as in the case in hand, different parameters will apply. In such a situation, in case the party is to get demarcation under Section 107 of H.P. Land Revenue Act, the probable time likely to be taken in such proceedings, may defeat the purpose of filing civil suit as the proceedings in civil suit shall come to a stand still to accommodate plaintiff or for that matter a party seeking demarcation to avail remedy under aforesaid provisions of H.P. Land Revenue Act. 13. Thus, in my considered view, while passing the impugned order, learned Trial Court has erred in not properly exercising the jurisdiction vested in it. The refusal of the prayer of the plaintiff may have serious consequence on the legal vested rights of the parties. 13. Thus, in my considered view, while passing the impugned order, learned Trial Court has erred in not properly exercising the jurisdiction vested in it. The refusal of the prayer of the plaintiff may have serious consequence on the legal vested rights of the parties. The prime duty of the Court is to arrive at the truth of the matter and to adjudicate upon the issues brought before it in light of such truth. 14. As regards, the ground of rejection that the Court is not to collect evidence, the same again cannot be applied as a general rule. By appointing a commission to demarcate the land, will not amount to collection of evidence in favour of one party for the reason that the result remains contingent and may favour either or none of the parties. 15. In Prithi Singh Vs. Bakshi Ram and another, Latest HLJ 2006 (H.P) 2006 5, a Co-ordinate Bench of this Court has already held as under:- “7. As referred to above, the dispute between the parties was in fact a boundary dispute. It could be solved only by demarcation, inasmuch as the land claimed by the plaintiff to be owned and possessed by him as different from the land ss claimed by the defendants to be owned and possessed by them and both the lands were adjoining each other. In such a situation, the only course open for the trial deweet was to have appointed a Local Commissioner to visit the spot after issuing notice to both the parties and to demarcate the suit land in accordance with law. on Instead of ordering the appointment of the Local Commissioner to demarcate the suit land, the learned trial Court proceeded to dismiss the application of the plaintiff an under Order 26 Rule 9 CPC by taking the plea that the object of local investigation was not to collect evidence on behalf of the parties. In my opinion, appointment of a on Local Commissioner to demarcate the suit land, in a case which involves boundary dispute would not amount to collecting on behalf of either party. On the other hand, as referred to above, this would be the only course open to the trial Court to settle the dispute between the parties by appointing a Local Commissioner to visit the spot and to submit his report after demarcation in accordance with law.” 16. On the other hand, as referred to above, this would be the only course open to the trial Court to settle the dispute between the parties by appointing a Local Commissioner to visit the spot and to submit his report after demarcation in accordance with law.” 16. In light of above discussion, the petition is allowed. The order dated 01.04.2023, passed by learned Senior Civil Judge, Court No.1, Amb, District Una, H.P. in CMA No. 81-VI - 2023 tagged with Civil Suit No. 209- I - 2012, is set aside. Learned Trial Court is directed to appoint a Local Commissioner (Revenue Officer) for the purposes of demarcating the suit land in order to ascertain its boundaries and extent of encroachment, if any, made thereon. 17. The petition, is accordingly, disposed of, so also the pending miscellaneous application, if any.