The main legal point established in the judgment is the importance of fixed points in demarcation and the admissibility of demarcation reports as evidence.

JUDGMENT :

Chander Bhusan Barowalia, J.

1. The present petition is maintained by the legal representatives (hereinafter referred to as "the petitioners") of Shri Ram Parkash, who was the original defendant before the learned Trial Court (since dead) under Article 227 of the Constitution of India against order dated 08.05.2019, passed by learned Civil Judge-cum-Judicial Magistrate 1st Class, Barsar, District Hamirpur, H.P. whereby the objections filed by the petitioner were rejected and the demarcation report of Local Commissioner was confirmed.

2. As per the petitioners, the respondent herein maintained a suit against Shri Ram Parkash, who was the original defendant, in the learned Trial Court under Specific Relief Act, for fixation of boundary through demarcation and for permanent prohibitory injunction restraining the defendant from raising any construction or changing the nature of land comprising in Khata No. 199, Khatauni No. 232, Khasra No. 1281, 1282, Kita 2, measuring 14 marlas situated in Tika Barsar, Tappa Pangran, Tehsil Barsar, District Hamirpur, H.P. (hereinafter referred to as "the suit land"). The petitioners further averred that during the pendency of the suit he moved an application under Order 26, Rule 9 CPC for appointment of Local Commissioner and in consequence thereto the learned Trial Court appointed a retired Tehsildar, as Local Commissioner to demarcate the land. He conducted the demarcation of the land and submitted his report in the learned Court below alongwith the statement of Smt. Sudesh Kumari (respondent herein). Subsequently, objectors filed objections to the said demarcation report alleging that no valid service was effected upon the objectors and no signatures were obtained on the notices, so service of notices upon the objectors is not valid. It was further contended that on 07.05.2018 Local Commissioner reached the spot and he did not record the statements of objectors qua the pucca bannas on the spot. Instead, the Local Commissioner reported in his report that pucca banna was located i.e. Khasra No. 1279, actually Khasra No. 1279 was not a pucca banna/fixed point. As per the objectors, on Khasra No. 1279 there is a building, so the area cannot be measured. It was reported by the Local Commissioner that there are buildings on the spot and no vacant space is there, so jareb (measurement instrument) could not be used, so pucca banna was not located on the spot. The objectors further averred that Khasra No. 1278 had been partitioned among the share-holders and objectors have been allotted Khasra No. 1278/1, measuring 0K-6 Marlas, but the Local Commissioner did not measure Khasra No. 1278/1, measuring 0k-06 Marlas on the spot, as during the partition, tatima was deducted by the then Revenue Field Staff on the spot, but the Local Commissioner did not locate the boundaries of Khasra No. 1278/1 on the spot, where the objectors have constructed their shops and Khasra No. 1278/1 is touching with the old road which goes to the Veterinary hospital on the spot and area of Khasras No. 1281, 1282, is touching National Highway, upper side of Khasra No. 1278/1, so there is no boundary touching old road of the suit land, i.e. Khasras No. 1281 and 1282. The objectors averred that there is no middle maind existing on Khasras No. 1279 and 1280, but surprisingly the Local Commissioner reported that he took 10 Karams from middle line of Khasras No. 1279 and 1280. The Local Commissioner did not record the statements of the parties when he located points AB. As per the objectors, the entire process of the demarcation by the Local Commissioner is against the law. The Local Commissioner failed to ascertain the three pucca points and he himself mentioned in his report that only one point was fixed and other points, i.e. B and C could not be fixed due to buildings on the spot. The Local Commissioner, in order to benefit the plaintiff (respondent herein) wrongly depicted the encroachment upon Khasra No. 1281, the encroach