Point of Law: If a boundary is in dispute, Revenue Officer or Field should relay it from Village-map prepared at last settlement.

JUDGMENT :

Satyen Vaidya, J.

The instant appeal has been preferred by the appellant against judgment and decree dated 31.12.2021 passed by learned Additional District Judge, Sundernagar, District Mandi, H.P. in Civil Appeal No. 24 of 2020, whereby judgment and decree dated 07.12.2019 passed by learned Civil Judge (Senior Division), Court No.1, Sundernagar, District Mandi, H.P. in Civil Suit No.09/2008 has been set-aside and the suit has been remanded to learned trial Court with direction to appoint fresh Local Commissioner for the purposes of carrying out demarcation and thereafter decide the matter in light of the reports submitted by the Local Commissioner.

2. The parties shall be referred to by the same status as they held before learned trial Court for the sake of convenience and clarity. The appellant was defendant No.2 and proforma respondents were defendants No. 1 and 3 respectively before the trial Court. Respondents No. 1 to 7 were plaintiffs.

3. The plaintiffs had filed a suit for permanent prohibitory and mandatory injunction in respect of the land comprised in Khata/Khatauni No. 157/186 min, Khasra No. 274, measuring 04-15-02 bighas, situated in Muhal Khilra, Tehsil Sundernagar, District Mandi, H.P. (for short the suit land) and had also sought a decree of possession in alternative on the premise that in case the defendants succeeded in encroaching upon the suit land during the pendency of the suit, the same be restored to the plaintiffs.

4. Undisputed facts are that the plaintiffs were owner of land comprised in Khata/Khatauni No. 157/186 min, Khasra No. 274, measuring 04-15-02 bighas. Defendant No.1 owned land comprised in Khasra No.283, out of which she sold two separate portions measuring 0-5-4 bighas and 0-4-1 bighas respectively in favour of defendants No. 2 and 3. Initially, plaintiffs had alleged encroachment over the suit land by defendant No.3, however, during pendency of the suit, plaintiffs got the suit land demarcated from revenue agency and thereafter amended the plaint to plead that it was defendant No.2, who had encroached upon the suit land to the extent of 0-3-17 bighas by raising construction thereon. The encroached land was depicted by Khasra No. 274/1.

5. The plaintiffs placed reliance on the report of demarcation Ext.PW1/B. However, during the pendency of suit, plaintiffs and defendant No.2 preferred a joint application before the learned trial Court seeking orders for appointment of the Local Commissioner to demarcate the land in question. Accordingly, the Tehsildar, Sundernagar was appointed as Local Commissioner. He submitted his report exhibited on record as Ext.DW-3/A/B. The Local Commissioner had not found any encroachment on the land of plaintiffs as alleged in the plaint.

6. Learned trial Court found the demarcation conducted by the Local Commissioner to be in accordance with Chapter 10 of the Himachal Pradesh Land Records Manual as also the instructions issued for guidance of the Revenue Officers by the Financial Commissioner (Revenue) Himachal Pradesh and affirmed the same despite objections raised on behalf of the plaintiffs. Accordingly, the suit was dismissed.

7. In first appeal, learned lower Appellate Court has held the report of the Local Commissioner Ext. DW-3/1/B to be in violation of the instructions of the Financial Commissioner (Revenue). The judgment and decree passed by learned trial Court has thus been set-aside with direction to appoint the Local Commissioner afresh and to decide the matter thereafter in accordance with law.

8. Defendant No.2 has now approached this Court against judgment and decree passed by learned lower appellate Court on the grounds firstly that the report of the Local Commissioner i.e. Tehsildar, Sundernagar, Ext.DW-3/1/B could not have been set-aside as the Local Commissioner was appointed with the consent of the plaintiffs and the plaintiffs had also consented for recognition of permanent points affixed on the spot for the purpose of demarcation and, sec