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2025 DIGILAW 455 (HP)

Dalip Chand v. Ashok Kumar

2025-03-22

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. The present petition has been preferred laying a challenge to order dated 15.1.2025, whereby an application filed under Order 26 Rule 9 CPC read with Section 151 for appointment of a revenue expert as a Local Commissioner to demarcate the suit land and to report the extent and nature of encroachment done by the respondent over the suit land has been dismissed. 2. The Petitioner/Plaintiff filed Civil Suit No. 422/2003, titled & Dalip Singh vs. Ashok Kumar”, seeking fixation of boundaries through demarcation, along with a consequential relief of permanent prohibitory injunction. Thesuit pertained to the land entered in Khata No. 38, Khatauni No. 71 min, Khasa Nos. 670 min (old) and present Khasra Nos. 1080, 1085, Kita-2, measuring 0-06-50 hectares (Jamai 25 paise) as per the Missal Hakiat Bandobast 1996-97, situated in Tika Bhalu, Mauza and Sub-Tehsil Galore, District Hamirpur, HP. The Plaintiff claimed ownership and possession of the land by way of construction of abadi and sought to restrain the Defendant, his agents, servants, and family members from interfering or raising any construction over the suit land until the boundary was redefined. Additionally, the Plaintiff prayed that if the Defendant was found in possession of any portion of the suit land, a decree for possession by way of demolition be granted. 3. Vide Judgment dated 11.03.2010, the suit was partly decreed in favor of the Plaintiff, granting a prohibitory injunction against the Respondent/Defendant, restraining him from causing any interference over the suit land. The Petitioner filed an appeal before the Learned First Appellate Court, which was dismissed vide Judgment and Decree dated 19.02.2011 in Civil Appeal No. 27/2010. Subsequently, the Petitioner filed an Execution Petition under Order 21, Rule 32 CPC before the Learned Senior Civil Judge, Nadaun, along with an application under Order 26, Rule 9 CPC for the appointment of a Local Commissioner (Revenue Expert) to demarcate the suit land and ascertain the extent and nature of encroachment. The Respondent contested the application by filing a reply. 4. The sole contention urged on behalf of the petitioner, in the case at hand is that the respondent encroached on his land and has raised a stair case thereon, after passing of the decree in Judgment dated 11.3.2010 passed in Civil Suit No.422/2003. 5. Heard counsel for the petitioner. Perused the impugned order and documents appended alongwith. 6. 4. The sole contention urged on behalf of the petitioner, in the case at hand is that the respondent encroached on his land and has raised a stair case thereon, after passing of the decree in Judgment dated 11.3.2010 passed in Civil Suit No.422/2003. 5. Heard counsel for the petitioner. Perused the impugned order and documents appended alongwith. 6. It is evident from the record that it was not the case of the petitioner in his appeal that the respondent had raised construction over the part of the suit land. He had only averred that the respondent had removed the marks of land marks fixed on the spot in the demarcation carried out by the revenue officer. It is also evident from the judgment of the trial court that the first demarcation in relation to the suit land was conducted in June, 2000 and the second demarcation was done November 06,2008, i.e during the pendency of the suit in which it was found that the defendant had encroached upon the land of the appellant i.e the suit land to the extent of less than one marla and on the spot, the parties entered into a compromise whereby the boundary in between the parties was fixed and respondent parted with the possession of the suit land. Besides the aforesaid, it has come on record that a demarcation was got conducted on an application filed by the present petitioner on 23.06.2014, the same is alleged to have been prepared in connivance with the revenue field staff and an appeal against the same is pending adjudication before the concerned appellate authority. 7. In the aforesaid facts and attending circumstances, the trial Court has correctly appreciated the law with respect to appointment of a local commissioner. Re-course to a local commissioner to determine the nature and extent of encroachment cannot be claimed as a right under Order 26 Rule 9 CPC. The burden to establish the factum of encroachment upon the suit land is upon the petitioner. Provisions of order 26 Rule 9 CPC cannot be allowed to be abused by a party to create evidence in his/her favour. 8. The present petition has been filed under Article 227 of the Constitution of India. Article 227 of the Constitution reads as under:- “227. Provisions of order 26 Rule 9 CPC cannot be allowed to be abused by a party to create evidence in his/her favour. 8. The present petition has been filed under Article 227 of the Constitution of India. Article 227 of the Constitution reads as under:- “227. Power of superintendence over all courts by the High Court (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction. (2) Without prejudice to the generality of the foregoing provisions, the High Court may— (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision or any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.” 9. The scope of jurisdiction of High Court under Article 227 of the Constitution has been expounded by the Hon'ble Supreme Court as under: (i) In Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003) 3 SCC 524 , it has been held as under:- “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.” (iii) In Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181 , it has been held as under:- “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute conclusion, for its own that of decision the on facts inferior court and or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 10. Thus, from the above stated exposition of law, it is clear that this Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice. 11. 11. In the case at hand, I am of the considered view that no ground is made out in the present petition to invoking the jurisdiction of this Court under Article 227 of the Constitution of India. The present petition is dismissed. Pending miscellaneous applications, if any also stand disposed of.