A petitioner must prove encroachment without court assistance and cannot seek a Local Commissioner for evidence collection without prior boundary demarcation.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, petitioner has taken exception to order dated 20.8.2022, passed by the learned Civil Judge (2), Amb, District Una, in Case No. 231/2010, whereby the application of petitioner under Order 26 Rule 9 Code of Civil Procedure (for short the ‘Code’) for appointment of Local Commissioner has been dismissed.

2. Petitioner has filed a suit against respondents for relief of possession with the allegation that the respondents have encroached upon the land belonging to the petitioner. The land on which the encroachment is alleged is shown, comprised in Khata No. 118, Khatauni No. 203, Khasra No. 827 in Village Gokul Nagar, Tehsil Amb, District Una, H.P. For identifying the alleged encroached portion of the land, the petitioner has placed reliance on a site plan, in which the said encroached portion is shown by letters ABCD. As per allegation of the petitioner, the encroachment was carried by the respondents in the third week of May, 2010. The plaint was instituted in July, 2010.

3. Respondents have filed the written statement and have specifically denied the allegation of any encroachment having been made by them on any portion of land comprised in Khasra No. 827. The respondents have submitted that in the year 1988 also, the petitioner had filed a suit against the respondents, during the pendency of which, the demarcation was carried out by the Local Commissioner. Less than one Marla of land was found encroached, however, the suit was finally compromised on the basis of boundaries fixed by the Local Commissioner. The respondents have further averred that they have not violated the boundary so fixed and in such way the allegations levelled by the petitioner have been denied.

4. During the pendency of the suit, petitioner amended the plaint and alleged that the respondents have further encroached the suit land after filing of suit. The said encroached portion has again been shown by way of letters CFGD and HIJK in another site plan relied upon by the petitioner.

5. Thereafter, the petitioner filed an application under Order 26 Rule 9 of the Code for appointment of Local Commissioner for the purpose of demarcation of land, so as to ascertain the extent of encroachment made by the respondents on the suit land. The respondents contested the prayer. The learned trial Court vide impugned order has dismissed the application of the petitioner on the ground that it is for the plaintiff to prove the extent of alleged encroachment and he cannot be allowed to take the assistance of the Court for collection of evidence.

6. I have heard learned counsel for the petitioner and have also gone through the record. The respondents have not chosen to contest the petition.

7. Noticeably, the averments with respect to encroachment on suit land by respondents can be found in original plaint. As noticed above, the petitioner placed reliance on a site plan for the purposes of identifying the alleged encroachment. What has been added by way of amendment in the plaint is that after filing of the suit also the respondents have carried further encroachment and the said encroachment has again been depicted with the help of another site plan.

8. It cannot be disputed that the only way to find out the encroachment on the land is by ascertainment of its boundaries. The boundaries can be ascertained by way of demarcation. H.P. Land Revenue Act provides complete mechanism for demarcation. As per prescribed procedure the Revenue Officer is bound to demarcate the land on the application of the owner.

9. In the instant case, the petitioner has filed the suit without getting suit land demarcated by resorting to the procedure prescribed under the H.P. Land Revenue Act. Admittedly, the petitioner filed the application for appointment of Local Commissioner after carrying amendment in the plaint by alleging that that the encroachment made by respondents during the pendency of the suit was required to be ascertained.

10. H.P. High Court