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2016 Supreme(HP) 643
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Ajay Mohan Goel, J.
Vishwa Nath – Plaintiff
Versus
State of H.P. and Another – Defendants
RSA No. 177 of 2006
Decided On : 29-04-2016
For the Plaintiff :Mr. K.D. Sood, Senior Advocate with Mr. Rajnish K. Lall, Advocate.
For the Defendant :Mr. V.S. Chauhan, Additional Advocate General.
The main legal point established in the judgment is that in boundary disputes, the appointment of a Local Commissioner for demarcation is crucial to facilitate the adjudication of the dispute, and the court must rely on the amended pleadings for adjudication.
Headnote:
Local Commissioner - Boundary Dispute - H.P. Land Revenue Act - Braham Datt Vs. Prem Chand and others 2000 (1) SLJ 431, Udai Ram and another Vs. Ram Lal, Latest HLJ 2008 (HP) 296, Haryana Waqf Board Vs. Shanti Sarup and Ors. (2008) 8 SCC 671 - The court erred in not ordering fresh demarcation of the property by appointing a new Local Commissioner to carry out the necessary demarcation, after coming to the conclusion that the report of the Local Commissioner was incorrect. The judgment and decree passed by the learned Appellate Court were set aside and the case was remanded back to the learned Appellate Court to decide the appeal on merits afresh after appointing a Local Commissioner for demarcation of the suit land.
Fact of the Case:
The appellant filed a suit for permanent prohibitory injunction against the respondent/defendant regarding a land dispute. The suit was decreed by the lower court, but the appellate court reversed the decision based on the incorrect demarcation report.
Finding of the Court:
The court found that the appellate court erred in not ordering fresh demarcation of the property by appointing a new Local Commissioner, and the judgment and decree passed by the learned Appellate Court were set aside.
Issues: The main issue was the correctness of the demarcation report and whether the appellate court erred in not ordering fresh demarcation.
Ratio Decidendi: The court held that in a boundary dispute, the appointment of a Local Commissioner for demarcation is essential to facilitate the adjudication of the dispute. The court also emphasized that once the pleadings are amended, the adjudication must be based on the amended pleadings.
Final Decision: The judgment and decree passed by the learned Appellate Court were set aside, and the case was remanded back to the learned Appellate Court to decide the appeal on merits afresh after appointing a Local Commissioner for demarcation of the suit land.
Ajay Mohan Goel, J.
1. This appeal has been filed against judgment and decree, dated 01.03.2006, passed by the learned District Judge, Hamirpur in Civil Appeal No. 100 of 2004, titled The State of Himachal Pradesh and another Vs. Vishwa Nath, vide which learned Appellate Court has reversed the judgment and decree, dated 17.04.2004, passed by learned Civil Judge (Senior Division), Hamirpur in Civil Suit No. 438 of 1996, titled as Vishwa Nath Vs. State of H.P. and another.
2. This appeal was admitted on 26.03.2007 on the following substantial question of law:
“Whether the first Appellate Court having found that the demarcation was not carried out, as per the instructions, ought not to have decided the appeal on merits, without appointing a fresh Local Commissioner and obtaining his report?”
3. Facts, in brief, necessary for the adjudication of the case, are that the appellant herein had filed a suit for permanent prohibitory injunction against the respondent/defendant qua the suit land comprising Khata No. 244, Khatoni No. 246, Khasra No. 666, measuring 0.7 Marlas, as per Jamabandi for the year 1995-96 of Tika Bohni, Tappa Ugialta, Tehsil and District Hamirpur, H.P. on the ground that the appellant/plaintiff was the owner in possession of the suit land, on which there was a shop as well as residential house, construction of which was 80-90 years old. Case of the appellant/plaintiff was that the adjoining land was owned by HP PWD department and the respondent/defendant No. 2 had destroyed the boundary marks and was bent upon to demolish and damage the building. Hence, the suit was filed for permanent prohibitory injunction for restraining the defendants from demolishing the building of the plaintiff or interfering in the suit land and the plaintiff had also prayed for mandatory injunction directing the respondents/defendants to restore the structure if any demolished by them.
4. During the pendency of the suit before the learned lower Court, an application was filed by the plaintiff for amendment of the plaint, which was allowed vide order, dated 16.03.1999. The amendment permitted to be incorporated was with regard to the description of the suit property, i.e. in the original plaint, the plaintiff had stated that he was owner in possession of the land measuring 0.2. Marlas as per Jamabandi for the year 1990-91, which was subsequently amended to the effect that he was owner in possession of the land measuring 0.7 Marlas as per Jamabandi for the year 1995-96.
5. The suit was decreed by the Court of learned Civil Judge (Senior Division), Hamirpur on 17.04.2004 in following terms:-
“The suit of the plaintiff for permanent prohibitory injunction is hereby decreed to the effect that defendants are hereby restrained from interfering in any manner whatsoever or causing any damage or demolishing the structure i.e. house-cum-shop of plaintiff situated in suit land bearing Khata No. 244, Khatoni No. 246, Khasra No. 666, measuring 0-7 marlas, as per Jamabandi 1995-96, situated in Tika Bohni, Tappa Ugialta, Tehsil and District Hamirpur (H.P.) Parties shall bear their own costs.”
6. Feeling aggrieved, the present respondents filed an appeal, which was allowed by the learned Appellate Court vide judgment, dated 01.03.2006.
7. During the pendency of the case before the learned lower Court, a Local Commissioner was appointed and his report is Ex.-P4. As per the report of the Local Commissioner, the appellant/plaintiff had not encroached upon any land of Public Works Department. This report was relied upon by the learned lower Court in passing the decree in favour of the plaintiff. Objections filed to the said report were also dismissed by the learned lower Court. Ex.-P4 is the report submitted by Naib Tehsildar, Hamirpur. In appeal, learned Appellate Court has observed that the boundary of the suit land with Khasra No. 1112 was required to be determined by the Collector/Assistant Collector under the provisions of the H.P. Land Revenue Act. The
