IMPORTANT POINT
The demarcation of land by a Local Commissioner must be carried out strictly in accordance with the instructions of the relevant authorities and land record manuals.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition filed under Article 227 of the Constitution of India, the petitioners have assailed order dated 05.02.2024, passed by the Court of learned Senior Civil Judge, Court No.1, Hamirpur, H.P. in terms whereof, the objections filed by the petitioners against the report of the Local Commissioner appointed by the Court under Order 26, Rule 9 of the Civil Procedure Code have been dismissed.

2. Having heard learned counsel for the petitioners and having perused the order under challenge as well as other documents appended with the petition, this Court does not finds any infirmity in the impugned order.

3. Learned counsel for the petitioners submitted that the objections of the petitioners were erroneously dismissed by the learned Court below without appreciating that as the Local Commissioner erred in not demarcating the land of the petitioners, therefore, the report could not have been accepted and the objections could not have been rejected.

4. On the asking of the Court, learned counsel for the petitioners produced order dated 28.04.2023, passed by the Court of learned Senior Civil Judge, Court No.1, Hamirpur, H.P., in terms whereof, the Local Commissioner was appointed to appreciate as to what all the Local Commissioner was called upon to demarcate by the learned Court below while allowing the application filed by the respondents herein under Order 26, Rule 9 of the Civil Procedure Code. Learned counsel produced order dated 28.04.2023, which reads as under:­

“An application under Order 26 Rule 9 read of CPC is pending for carrying out the demarcation of the suit land. Learned counsel for the defendant has already pleaded no objection if the application under Order 26 Rule 9 of CPC is allowed. Keeping in view the submission as made in the application as well as no objection pleaded by learned counsel for the defendant coupled with application, the application accordingly stands disposed of being allowed. After needful be tagged with the main case file for record.

With the consent of the learned counsel for the parties, Sh. Vipan Kumar Retired Settlement Naib Tehsildar, R/O Village Sankar, PO Jol Sappar, Tehsil Nadaun. District Hamirpur, H.P. is hereby appointed as local commissioner in this case for the purpose of demarcating the suit land and find out the exact nature and extent of encroachment, if any. The Local Commissioner shall demarcate the suit land strictly in accordance with the instructions of the Financial Commissioner and the High Court Rules and Orders, after prior intimation to the parties and report as to encroachment, if any, found over the suit land along with the nature and extent thereof. The fee of local commissioner for this purpose is fixed at Rs. 3,000/­ which shall be paid by the plaintiff-applicant on the spot. Let reference be issued accordingly calling report of the local commissioner for 29.05.2023.”

5. A perusal of this order demonstrates that mandate of the Local Commissioner was to demarcate the suit land and find out the exact nature and extent of encroachment if any and the Local Commissioner was called upon to demarcate the suit land strictly in accordance with the instructions of the Financial Commissioner and the High Court Rules & Orders. A Retirement Settlement Naib Tehsildar was appointed as the Local Commissioner. Thus, in terms of this order, the Local Commissioner was called upon only to demarcate the suit land and not the land of the petitioners, who incidently are the defendants in the Civil Suit.

6. In this background, when one peruses the order passed by learned Court below which stands challenged by way of this petition, one finds that the objections of the petitioners were rejected by the learned Court below, inter alia, by holding that as the demarcation was carried out by the Local Commissioner strictly in accordance with the instructions of the Financial Commissioner as well as Chapter­10 of the H.P. Land Record Manual, therefore, the same