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2020 Supreme(HP) 35
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Chander Bhusan Barowalia, J.
Shyam Singh - Appellant
Versus
Joginder Singh - Respondent
Regular Second Appeal No. 612 of 2007
Decided On : 01-01-2020
Romesh Verma, Advocate, B.S. Chauhan, Advocate, Munish Datwalia, Advocate
The main legal point established in the judgment is that the appointment of a Local Commissioner and the credibility of the demarcation report are contingent upon the pleading of encroachment by the plaintiff.
Headnote:
encroachment - Land Dispute - Code of Civil Procedure, Order 26 Rule 9, Himachal Pradesh Tenancy and Land Reforms Act - [Order 26 Rule 9 CPC, Himachal Pradesh Tenancy and Land Reforms Act]
Fact of the Case:
The plaintiff filed a suit for permanent prohibitory injunction against the defendant, alleging encroachment and threat to land. The trial court partly decreed the suit, which was affirmed by the lower appellate court. The plaintiff appealed, raising substantial questions of law regarding the appointment of a Local Commissioner and the credibility of the demarcation report.
Finding of the Court:
The court found that the encroachment was not pleaded by the plaintiff, and therefore, the appointment of a Local Commissioner was not necessary. The demarcation report was deemed unreliable due to violation of instructions. The court dismissed the appeal, holding it to be without merit.
Issues: The issues included the entitlement of the plaintiff to the relief of permanent prohibitory injunction, the necessity of a Local Commissioner, and the credibility of the demarcation report.
Ratio Decidendi: The court held that the encroachment was not pleaded by the plaintiff, and therefore, the appointment of a Local Commissioner was not necessary. The demarcation report was deemed unreliable due to violation of instructions.
Final Decision: The appeal was dismissed as without merit, and the parties were left to bear their own costs.
JUDGMENT
Chander Bhusan Barowalia, J. - By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned Additional District Judge, Fast Track Court, Shimla, District Shimla, in Trial Court Case No.69/1 of 2002, dated 13.9.2007, vide which, the learned lower Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Junior Division), Court No.3, Shimla, District Shimla, in Civil Suit No.69/1 of 2002, dated 27.2.2007.
2. Material facts necessary for adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as 'plaintiff') maintained a suit for permanent prohibitory injunction against the respondent-defendant (hereinafter referred to as 'defendant') alleging therein that plaintiff is recorded owner-in-possession of land comprising in Khata No.1, Khatauni No.4, Khasra No.164, measuring 0- 09-75 hectares, situated at Mauja Kavi, Pargana Kaimli, Tehsil and District Shimla (hereinafter referred to as 'suit land'). Even though, other persons are also recorded as owners of the suit land, but the plaintiff is recorded as physical possession of the entire land. Defendant is recorded as owner-in-possession of the land as entered in Khata No.2, Khatauni No.12 min, Khasra No.165, measuring 0-03-69 hectares situated at Mauja Kavi, Tehsil and District Shimla. Defendant is one of the owner of Khasra No.165, but the entire area as entered in Khasra No.165 is recorded in exclusive possession of late Shri Deep Ram, who was father of the defendant. Defendant has got no right, title or interest in Khasra No.164, which is in exclusive possession of the plaintiff. The boundaries of Khasra No.165 and 164 are adjoining, therefore, the defendant is threatening to encroach upon area of Khasra No.164, at the point where boundaries of Khasra No.164 and 165 are adjoining. In the month of May, 2002, the defendant expressed his desire that he was tying to raise construction of his house upon Khasra No.165 and threatened to start construction work by encroaching upon Khasra No.164. The plaintiff is trying and threatening to start digging and excavation work over the land of the plaintiff as entered in Khasra No.164. There is every likelihood that the defendant is trying to encroach upon Khasra No.164, which is in exclusive possession of the plaintiff.
3. The suit of the plaintiff was resisted and contested by the defendant by filing written statement and taking the preliminary objections that the suit is not maintainable, plaintiff has no locus standi and suit is bad for non-joinder of necessary parties, plaintiff has no cause of action and suit is not properly valued for the purpose of court fee and jurisdiction. On merits, case of the defendant is that he is owner-in-possession of land comprised in Khata/Khatauni No.2/12 min. Khasra No.165, measuring 0-03-69 hectares situated at Mauza Kavi, Tehsil and District Shimla. Defendant is raising construction over Khasra No.165 and never touched to the land comprised in Khasra No.164. It is denied that the defendant is proclaiming and threatening to start any digging and excavation work over the land of the plaintiff.
4. From the pleadings of parties, the learned trial Court framed following issues :
"1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for ? OPP.
2. Whether the plaintiff is entitled for the relief of mandatory injunction, as prayed for ? OPP.
3. Whether the suit is not maintainable in the present form, as alleged ? OPD.
4 . Whether the plaintiff has no locus standi to file the present suit against the defendant, as alleged ? OPD.
5. Whether the suit is bad for non-joinder of necessary parties, as alleged ? OPD.
6. Whether the plaintiff has no cause of action to file the present suit, as alleged ? OPD.
7. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction, as alleged ? OPD.
8. Relief."
5. The learned trial Court af
