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2012 Supreme(HP) 614
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Dharam Chand Chaudhary, J.
Balbir Singh – Appellants.
Versus
Sh. Pohu Khan – Respondent
RSA No.: 206 of 2002.
Decided On : 30.11.2012.
For the Appellant :Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate.
For the Respondents:Mr. Ramakant Sharma, Advocate for respondents No.1 and 3.
None for respondent No.2.
The importance of proper demarcation and the appointment of a Local Commissioner for local inspection to ascertain the actual position of the land.
Headnote:
demarcation - land dispute - High Court Rules and Orders - Braham Datt v. Prem Chand and others, 2000(1) SLJ 431 - Bali Ram Versus Mela Ram and another, 2002(3) Shim. L.C. 131 - Bandhu Mahto (dead) by LRs. And another Versus Bhukhli Mahatain and others, (2007) 10 SCC 564 - Tallam Gangadharan (dead) by LRs. Versus U. Ismaiil Saheb, (2009) 17 SCC 389 - Haryana Waqf Board Versus Shanti Sarup and others, (2008) 8 SCC 671
Fact of the Case:
The plaintiff filed a suit for permanent prohibitory injunction and possession of land. The lower appellate Court declined the decree for possession based on the demarcation report not being legally acceptable.
Finding of the Court:
The Court found that the demarcation report was not legally acceptable and remanded the suit to the lower appellate Court for deciding the issues afresh with a direction to appoint a Local Commissioner for local inspection.
Issues: The issues revolved around the acceptance of the demarcation report and the decree for possession of the land.
Ratio Decidendi: The Court emphasized the importance of proper demarcation and the appointment of a Local Commissioner for local inspection to ascertain the actual position of the land.
Final Decision: The impugned judgment and decree were set aside, and the case was remanded to the lower appellate Court with a direction to appoint a Local Commissioner for local inspection.
Dharam Chand Chaudhary, J.
This appeal is directed against the judgment and decree dated 15.12.2001 passed by learned Additional District Judge, Solan, Circuit Court at Nalagarh, District Solan, Himachal Pradesh in Civil Appeal No.80-NL/13 of 2001, allowing thereby the appeal preferred by the appellant/plaintiff (hereinafter referred to as “the plaintiff” for convenient sake) partly by decreeing the suit for the relief of permanent prohibitory injunction, however, declining the decree for possession of the suit land by way of mandatory injunction to pull down the construction the defendants raised thereon in his absence and thereby modified the judgment and decree passed by learned Sub Judge, Nalagarh, District Solan.
2. The impugned judgment has been assailed on the grounds, inter-alia, that learned lower appellate Court has failed to appreciate the evidence suggesting that the suit land has been encroached upon by the defendants by raising construction thereon and also the admission of defendant No.2 that the suit land bearing Khasra No.645/1, measuring 1.4 square metres was encroached upon by her by raising the construction of boundary wall of her house. Before institution of the suit, plaintiff got the suit land demarcated and it is thereafter she filed the suit against the defendants alongwith demarcation report and the tatima. The demarcation report is duly proved on record, however, erroneously brushed aside by the Courts below on the ground that the demarcation was not conducted as per the guidelines prescribed thereto by the Financial Commissioner, Himachal Pradesh. The defendants did not file any application for demarcation of their respective lands and also the suit land. PW-2 by a slip of tongue has stated while in the witness box that the demarcation on the spot had taken place with the help of ‘latha’. On the other hand, the defendants who pleaded specifically that they raised the construction after obtaining permission from the competent authority, however, failed to prove so. The defendants never raised any objection to the demarcation report nor did they file any application for appointment of Local Commissioner for demarcation of the suit land. The lower appellate Court has erroneously dismissed the application filed by plaintiff with the prayer to appoint a Local Commissioner for demarcation of the suit land. The law cited on behalf of the plaintiff on the issue of appointment of Local Commissioner, referred to in para-10 of the impugned judgment has been taken as if cited to substantiate the case in the main appeal. The evidence available on record has also been misread and misconstrued.
3. The appeal has been admitted on the following substantial questions of law:-
1. Whether the Additional District Judge has erroneously partly dismissed the suit of the appellant-plaintiff and denied the decree for possession by misreading and misinterpreting the evidence on record, more specifically, the demarcation report, Ext. P.1?
2. Whether the Additional District Judge has erred in dismissing the application for appointment of Local Commissioner which was filed by the appellant-plaintiff in order to place on record the demarcation report by way of additional evidence?
4. I have heard Mr. G.D. Verma, learned Senior Advocate assisted by Mr. B.C. Verma, Advocate on behalf of the appellant and Mr. Ramakant Sharma, Advocate on behalf of the respondents.
5. Learned Senior Advocate has strenuously contended that the decree for possession of the suit land by demolishing the structure raised thereon by the defendants has only been declined on the sole ground that the demarcation report Ex.P-1 cannot be treated as legal and acceptable evidence in view of the fact that the demarcation has not been conducted as per the guidelines framed by the Financial Commissioner, Himachal Pradesh and the law laid down by this Court in State of H.P. versus Laxmi Nand and others, 1992(2) Sim. L.C. 307. The findings so recorded are neit
