In cases of boundary disputes, the appointment of a local commissioner for demarcation is essential to obtain evidence that cannot be collected in court.

Tarlok Singh Chauhan, J.

This appeal is directed against the order passed by the learned Additional District Judge, Kinnaur at Rampur Bushehar, H.P., whereby he remanded the appeal filed by the respondent herein to the learned trial Court with the direction to appoint local commissioner, invite objections and thereafter decide the same afresh in accordance with law. The parties hereinafter in this judgment shall be referred to as the ‘plaintiff’ and ‘defendant’.

2. It is not in dispute that the parties are neighbourers. The plaintiff is owner in possession of land comprised in Khewat No. 77 min., Khatoni No. 136, Khasra Nos. 734, measuring 00-00- 68 hectares and Khasra No. 1407/1329/735, measuring 00-01-43 hectares, situated at Muhal Khaneri, Tehsil Rampur Bushehar, District Shimla, H.P., whereas the defendant is owner in possession of land comprised in Khewat No. 52 min., Khatauni No. 71, Khasra No. 676, measuring 00-03-13 hectares. The plaintiff filed a suit for injunction on the ground that the defendant in absence of the plaintiff had constructed his house over and above the land comprised in Khasra Nos. 675 and 676 and encroached upon Khasra No. 734. The plaintiff had got the land demarcated through the revenue department, wherein it was found that the defendant has encroached upon Khasra No. 734/1, measuring 00-00-26 hectares. Despite repeated requests, the defendant had not removed the encroachment, hence, the suit.

3. The defendant contested the suit by filing written statement wherein, he raised preliminary objections regarding maintainability, cause of action, locus standi and valuation etc. On merits, it was averred that the demarcation as relied upon by the plaintiff was not in accordance with the instructions issued by the Financial Commissioner, therefore, the area reflected therein was wrong. It was further averred that in addition to land comprised in Khasra No. 676, the defendant was also in possession of Khasra Nos. 675, 677 and 679 and had no concern whatsoever with Khasra No. 734 and claimed that since he had not encroached upon any land of the plaintiff, therefore, the suit be dismissed.

4. The plaintiff filed replication re-asserting the averments made in the plaint and denied the contentions raised by the defendant in the written statement.

5. On 15.01.2013, the learned trial Court framed the following issues:

1. Whether the plaintiff is entitled for decree of permanent prohibitory injunction restraining the defendant from raising any sort of construction over the suit land, as alleged? ...OPP

2. Whether the plaintiff is also entitled for the decree of mandatory injunction directing the defendant to handover the vacant possession of the suit land, as alleged, as prayed for? ...OPP

3. Whether the suit is not maintainable? ...OPD

4. Whether the plaintiff has no cause of action? ...OPD

5. Whether the plaintiff has no locus standi to file the present suit? ...OPD

6. Whether the suit has not properly valued for the purpose of court fee and jurisdiction? ...OPD

7. Whether the suit is frivolous and malafide? ...OPD

8. Relief.

6. After recording evidence and evaluating the same, the learned trial Court dismissed the suit mainly on the ground that the report of the local commissioner Ext.PW6/A, as was relied upon by the plaintiff, was illegal, as PW6 had not carried out the demarcation in accordance with the rules and procedures established by law and illegally adopted method for carrying out the demarcation.

7. Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff filed an appeal before the learned first Appellate Court and the learned first Appellate Court, as observed earlier, has remanded the case back to the learned trial Court with the direction to appoint local commissioner, invite objections and, thereafter, decide the same afresh.

8. It is vehemently contended by Shri H.R. Bhardwaj, learned counsel for the defendant that the judgment passed by the learned first Appellate Court i