Appointment of a Local Commissioner for demarcation of disputed land in a boundary dispute and acceptance of the demarcation report as per High Court Rules and Orders.

JUDGMENT :

Tarlok Singh Chauhan, J.

This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Fast Track Court, Una, District Una (HP) on 30.08.2005, whereby he allowed the appeal filed by the plaintiff-respondent and set aside the judgment and decree passed by the learned Sub Judge Ist Class, Court No.1, Una, H.P., on 16.04.1999 and the suit of the plaintiff-respondent was ordered to be decreed by the learned first appellate Court. The parties hereinafter shall be referred to as the plaintiffs and defendants.

2. Facts, in brief, as are necessary for the adjudication of this case are that the plaintiff (since deceased) filed a suit for permanent injunction restraining the defendants from cutting the mango tree and further from removing wood of the two ‘sheesham’ tree lying on the spot already cut forcibly by the defendants situated in area of land measuring 17 Marlas, Khewat No. 5 min, Khatauni No. 12, Khasra No. 351, situated in Village Bhadori, Sub-tehsil Haroli, District Una. The plaintiff claimed that she had been deriving benefit out of these trees, but the defendants, who were having their adjoining land comprised in Khasra No. 352 and also having no right, title and interest over the suit land including the aforesaid ‘sheesham’ trees, had forcibly felled them and were now threatening to cut down the Mango tree. Hence, the suit.

3. The defendants contested the suit admitting the ownership and possession of the plaintiff over the suit land. However, the existence of the trees over the suit land was denied and it was further pleaded and claimed that the disputed trees infact existed over the land comprised in Khasra No. 352 which was in the ownership and possession of the defendants as per the demarcation carried out by the Field Kanungo. It was, therefore, denied that the defendants had forcibly cut and removed the trees from the suit land and prayed for dismissal of the suit.

4. The plaintiff denied the plea of the defendants in the replication and thereafter the learned trial Court on 26.12.1990 framed the following issues:—

“1. Whether the mango tree and two sheesham trees were standing over the suit land as alleged? OPP.

2. If issue No. 1 proved, whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.

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

4. Relief.”

5. After recording the evidence and appreciating the same, the learned trial Court dismissed the suit filed by the plaintiff by relying upon the report of the Local Commissioner, however, the learned first appellate Court discarded the report of the Local Commissioner and allowed the appeal filed by the plaintiff.

6. On 30.11.2005, this appeal was admitted on the following substantial questions of law:—

“1. Whether the Lower Appellate Court has committed grave procedural illegality in not calling for the report of the trial Court on the objections filed by the plaintiff to the report of the Local Commissioner, and while determining the said objections itself proceeded to set aside the said demarcation on highly erroneous and perverse considerations, especially when the plaintiff herself was satisfied with the report and appended her thumb impression in token of acceptance of the said report?

2. Whether the Lower Appellate Court has committed grave error of jurisdiction and law in not appointing fresh Local Commissioner, when the dispute between the parties was a boundary dispute and could only be determined by demarcation by ignoring the provisions contained in Chapter 1-M of High Court Rule and Order (Volume-1)?”

Substantial Questions of law No. 1 and 2.

7. Since both these substantial questions of law No. 1 and 2 are intrinsically interlinked and interconnected, therefore, they are taken up together for consideration and are being disposed of by common reasoning.

8. The appeal came up for hearing before this Court on 03.10.2018 and after hearing the parties and coming to a