Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(HP) 314

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ROMESH VERMA, J.
Ramesh Kumar & Others - Appellants
Versus
Om Prakash(deceased) through LRs & others – Respondents
RSA No.440 of 2018
Decided On : 24-03-2026

Advocates Appeared:
For the Appellants :Mr. Naveen K. Bhardwaj, Advocate.
For the Respondents:Mr. Ajay Kumar, Senior Advocate with Mr. Rohit, Advocate.

Irregularity in Local Commissioner's demarcation report due to non-compliance with land revenue instructions requires fresh commission, not dismissal of possession suit alleging encroachment.

Headnote:(A) H.P. Land Revenue Act - Sections 106 and 107 - Instructions for demarcation by Financial Commissioner - Local Commissioner’s report in execution of prior injunction decree found unauthorized possession through construction on suit land measuring total 0-00-17 hectares - Suit for possession by demolition of structure dismissed by trial and first appellate courts holding report not compliant with statutory demarcation procedure requiring pucca points and proper measurements - Application under Order 39 Rule 9 CPC for fresh Local Commissioner rejected - Held: Non-compliance with demarcation instructions renders report irregular but does not justify outright dismissal of suit asserting title and encroachment; proper course is fresh commission to elucidate disputed possession - Remand to trial court for fresh report, objections and decision. (Paras 14-22)

(B) Demarcation Proceedings - Quasi-judicial function of Revenue Officer must follow prescribed rules including fixation of pucca points, party statements and survey methods to ensure credibility; report must demonstrate compliance. (Paras 16-19)

Facts of the case:
Plaintiffs claimed ownership per revenue entries and sought possession by demolition alleging defendants’ unauthorized construction detected by Local Commissioner in prior execution proceedings. Defendants contested denying cause of action post-dismissal of execution, filed counterclaim challenging entries (dismissed). Lower courts rejected report for improper demarcation and dismissed suit.

Findings of Court:
Appeal allowed; lower courts’ judgments set aside; suit remanded for fresh Local Commissioner report, party objections and expeditious decision within six months.

Issues: Whether lower courts failed to consider prior decree and Local Commissioner report; whether evidence misconstrued.

Ratio Decidendi: Irregularity in Local Commissioner’s report warrants fresh demarcation rather than suit dismissal, as plaintiffs adduced evidence of title and encroachment; courts must ensure just adjudication per Supreme Court precedent.

Result: Second appeal allowed.

Table of Content
1. plaintiffs claim possession alleging encroachment after prior injunction decree. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10)
2. dispute on local commissioner's report evidentiary value. (Para 11 , 12 , 16)
3. lower courts rejected report for demarcation procedural defects. (Para 14 , 15)
4. statute mandates proper boundary demarcation methods. (Para 17 , 18 , 19)
5. report irregularity requires fresh commission, not suit dismissal. (Para 20 , 21)
6. remand for fresh local commissioner and re-adjudication. (Para 22 , 23 , 24)

JUDGMENT :

Romesh Verma, J.

The present appeal arises out of the judgment and decree as passed by learned District Judge, Kangra at Dharamshala, dated 24.02.2018, whereby the appeal as preferred by the appellants/plaintiffs was dismissed and the judgment and decree as passed by learned Civil Judge (Junior Division)-II, Kangra, District Kangra, H.P. was affirmed.

2. Brief facts of the case are that the present plaintiffs/appellants filed a suit for possession against the defendants/respondents. It was averred in the plaint that the land bearing Khata No.102 min, Khatauni No.160, Khasra No.691, area measuring 0-24-08 hectares, marlas Rs.1.34 paise situated at Mohal Rasuh, Mauza Kuthar, Tehsil and District Kangra, H.P. is entered in the ownership and possession of the plaintiffs as is clear from the entries contained in the column of possession of the jamabandi for the years 1990-91. The predecessor-in-interest of the defendants had suffered a decree for permanent prohibitory injunction in case No.79 of 1977 vide judgment and decree dated 16.05.1981. There was interference by the defendants and the said judgment and decree was put into execution by filing Petition No.18 of 1986. A Local Commissioner was appointed in the said execution who, after demarcating the suit land, found that the defendants are in unauthorized possession by way of construction vide report date 29.05.1991. The said execution petition for seeking action for breach of the decree passed against the defendants was dismissed for want of non-compliance of the order dated 23.05.1992.

3. It has been averred in the plaint that the defendants in November 1986 during the pendency of earlier proceedings, raised the construction over a part of suit land, which was detected and worked out by the Local Commissioner vide his report dated 29.05.1991 as per tatima and field book attached with the plaint. The said unauthorized possession has been worked out over the land in Khasra No.891/1 to the extent of an area measuring 0-00-10 hectares and in Khasra No.691/2 to the extent of an area measuring 0-00-07 hectares. Thus, the total land in unauthorized possession of the defendants is 0-00-17 hectares. The decree for possession by way of demolition of structure was sought from the learned Civil Judge (Junior Division)-II, Kangra, District Kangra, H.P.

4. The suit was contested by the defendants by filing a written statement raising preliminary objections regarding maintainability, cause of action etc. On merits, it was averred in the written statement that the judgment and decree, which was passed against the defendants, was an ex-parte decree. It was further averred that the execution, which was filed by the plaintiffs, was dismissed. Since, the execution petition was not revived by the plaintiffs, they have got no cause of action against the present defendants. All the averments and the allegations as levelled in the plaint were refuted and the defendants prayed for dismissal of the suit.

5. The defendants had also preferred a counter claim seeking declaration to the effect that the entry of ownership in the name of the plaintiffs is not correct and the same is paper entry, which be declared null and void.

6. Learned trial framed issues on 23.11.1996 in the following manner:

“1) Whether the plaintiffs are entitled to the possession of the suit land by demolition of structure, as prayed for? OPP.
2) Whether the plaintiffs have cause of action? OPP
3)