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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Veer Singh - Petitioner
Vs.
Leela Devi - Respondent
CMPMO No. 293 of 2022
Decided on : 30-12-2022
Code of Civil Procedure, 1908 - Order 26 Rule 9, Section 151 - Himachal Pradesh Land Revenue Act, 1954 - Section 107 - Land - Decree for Permanent Prohibitory Injunction - Suit of plaintiff is for grant of decree for permanent prohibitory injunction restraining defendant from interfering and encroaching upon her land specifically by raising construction of retaining wall – Report of demarcation placed on record by Local Commissioner in pursuance to orders passed by learned trial Court, itself becomes a piece of evidence. [Para 15]
Finding of the Court: Once, demarcation is conducted by a competent Revenue Officer, fresh demarcation is not permissible, unless earlier demarcation is set-aside in accordance with law - Plaintiff came up with an allegation that interim injunction order granted by learned trial Court was being violated - Defendant denied such allegation - Learned trial Court could pass order to take assistance of police in implementation of order for limited purpose i.e. police assistance could be allowed only to justifiable extent - In view of above observations, impugned order to extent it granted liberty to SHO to take assistance of local Revenue Official/officials for identifying suit land cannot be sustained - Land can only be identified after demarcation and demarcation is a quasi-judicial function and has serious consequence on rights of parties - With availability of demarcation report with it, learned trial Court was not justified in abdicating its powers to SHO or any Revenue Officer - Allowance of such practice will potentially cause serious prejudice to rights of parties which otherwise are subject to decision of civil Court.
Result: Petition allowed.
JUDGMENT :
Satyen Vaidya, J.
Aggrieved against order dated 02.07.2022 passed by learned Senior Civil Judge, Court No.1, Shimla in CMA No. 1349 of 2022 in Civil Suit No. 86 of 2021, petitioner has approached this Court with a prayer to set-aside the impugned order.
2. Brief facts necessary for adjudication of the petition are that Civil Suit No. 86 of 2021, titled Leela Devi vs. Veer Singh and another, is pending disposal before learned Senior Civil Judge, Court No.1, Shimla. Petitioner herein is the defendant and respondent herein is the plaintiff in above noted suit.
3. The suit of the plaintiff is for grant of decree for permanent prohibitory injunction restraining the defendant from interfering and encroaching upon her land specifically by raising construction of retaining wall thereon. The land in respect of which relief has been claimed is comprised in Khata Khatauni No.113/193, Khasra Nos. 1553/1267,1555/1268, 1275 and 1557/1276, total measuring 188-38 hectares, situated at Mohal Panjari, Patwar Circle, Tutikandi, Tehsil and District, Shimla, H.P.
4. Alongwith the suit, the plaintiff also prayed for interim injunction by seeking relief in the aforesaid terms.
5. The defendant has contested the suit by denying the allegation of plaintiff. It is denied on behalf of the defendant that he is trying to interfere in any manner in the land owned and possessed by the plaintiff. The specific stand of defendant is that whatever construction is being done by him, is on his own land.
6. On the application for interim injunction, learned trial Court passed an order dated 15.7.2021 and restrained the defendant as under:
7. During the pendency of the suit, plaintiff moved another application being CMA No.1349 of 2022 with the allegations that despite the order of interim injunction, being operative against defendant, the same was being openly violated. Accordingly, a prayer was made for police assistance in implementing the injunction order dated 15.7.2021.
8. The defendant contested the prayer of plaintiff so made in CMA No. 1349 of 2022. Learned trial Court decided the application and passed the impugned order dated 02.07.2022, the operative part of which is as under:
Ascertainment of boundaries of immoveable properties is domain of Revenue Officer in exercise of powers under Section 107 of Himachal Pradesh Land Revenue Act.
The reliance on the demarcation report by the lower courts was justified, as it found no encroachment on the suit land. The plaintiff failed to provide evidence to challenge the report, and therefore....
The court emphasized the importance of following instructions for demarcation and the power of the court to appoint a fresh Local Commissioner. The court also highlighted the need for evidence to be ....
An appellate court under Section 100 CPC will not interfere with concurrent findings of fact unless they are proven to be perverse; a Local Commissioner's demarcation report is valid when signed by a....
The onus is upon the plaintiff to prove the encroachment and produce the relevant record before the Revenue Official to enable demarcation. The Court cannot create evidence in favor of a party.
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