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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
HON'BLE MR. JUSTICE BIPIN CHANDER NEGI
Dalip Chand – Appellant
Versus
Ashok Kumar – Respondent
JUDGMENT :
Bipin Chander Negi, J.
The present petition has been preferred laying a challenge to order dated 15.1.2025, whereby an application filed under Order 26 Rule 9 CPC read with Section 151 for appointment of a revenue expert as a Local Commissioner to demarcate the suit land and to report the extent and nature of encroachment done by the respondent over the suit land has been dismissed.
2. The Petitioner/Plaintiff filed Civil Suit No. 422/2003, titled & Dalip Singh vs. Ashok Kumar”, seeking fixation of boundaries through demarcation, along with a consequential relief of permanent prohibitory injunction. Thesuit pertained to the land entered in Khata No. 38, Khatauni No. 71 min, Khasa Nos. 670 min (old) and present Khasra Nos. 1080, 1085, Kita-2, measuring 0-06-50 hectares (Jamai 25 paise) as per the Missal Hakiat Bandobast 1996-97, situated in Tika Bhalu, Mauza and Sub-Tehsil Galore, District Hamirpur, HP. The Plaintiff claimed ownership and possession of the land by way of construction of abadi and sought to restrain the Defendant, his agents, servants, and family members from interfering or raising any construction over the suit land until the boundary was redefined. Addition
The High Court's supervisory jurisdiction under Article 227 is limited to ensuring inferior courts act within their parameters, not correcting errors of law or fact.
Appointment of Local Commissioner – Demarcation is a quasi-judicial function – Unless, demarcation order once passed in accordance with provisions of Land Revenue Act is not set aside or there are al....
The court established that the refusal to appoint a Local Commissioner does not affect the rights of the parties and is not subject to revision.
A petitioner must prove encroachment without court assistance and cannot seek a Local Commissioner for evidence collection without prior boundary demarcation.
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.
Local Commissioners can be appointed under CPC for resolving boundary disputes when acknowledged by both disputing parties, ensuring accurate demarcation in property cases.
The discretionary nature of relief under Order 26 Rule 9 of CPC and the limited scope for entertaining a petition under Article 227 of the Constitution of India.
The prime duty of the Court is to arrive at the truth of the matter and to adjudicate upon the issues brought before it in light of such truth.
The discretionary nature of powers under Order 26 Rule 9 of CPC and the limited scope for entertaining a petition under Article 227 of the Constitution of India.
The plaintiff must provide independent and reliable evidence to prove the encroachment and cannot invoke the provisions of Order 26, Rule 9 of the Code of Civil Procedure to generate evidence.
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