Effective resolution of boundary disputes requires appointment of a local commissioner to ensure proper demarcation and avoid reliance on erroneous or inadequate assessments.

Vivek Singh Thakur, Judge

Appellant/defendant Nikka Ram has approached this Court under Order 43 Rule 1(u) of the Code of Civil Procedure (for short ‘CPC’) to assail judgment dated 21.12.2021 passed in Civil Appeal No. 10/13 of 2021, titled as Naresh Kumar Vs. Judhya Devi and Another, by District Judge, Bilaspur, H.P., whereby appeal preferred by respondent/plaintiff Naresh Kumar has been allowed and case has been remanded to the Trial Court to appoint a Local Commissioner as the application under Order 26 Rule 9 CPC filed by plaintiff in Civil Appeal, preferred before District Judge has been allowed and Trial Court has been further directed to decide the suit in the light of new demarcation report.

2. Plaintiff Naresh Kumar had filed a suit for permanent prohibitory injunction against defendants No. 1 and 2 Judhya Devi and Nikka Ram for restraining them from causing any i nterference in the suit land comprised in Khata Khatauni No. 369/389 min Khasra No. 49, situated in Village Deoli, Pargana and Tehsil Sadar, District Bilaspur, H.P. in any manner by raising construction, digging the suit land, changing the nature of the suit land, throwuing raw material on the suit land either themselves or through toheir agents, servants and employees etc. In alternative, prayer was made that in case during pendency of the suit, if defendants dispossess the plaintiff, then a decree for vacant possession of suit land after dismantling the structure (pillars) if raised thereon and restogring the suit land to its original nature, be passed.

3. After completion of pleadings, following issues were framed:-

“1. Whether the plaintiff is entitled for permanent prohibitory injunction as prayed? ….OPP

2. In alternative, whether the plaintiff is entitled for possession in case defendants succeed in raising construction over the suit land during the pendency of the suit? ….OPP.

3. Whether the suit of the plaintiff is not maintainable? ….OPP

4. Whether the plaintiff has no cause of action? ….OPD

5. Whether the plaintiff has not approached the Court with clean hand and suppressed the material facts from the Court.? ….OPD

6. Whether the plaintiff is estopped from filing the present suit? ....OPD

7. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? ...OPD

8. Whether the suit is bad for non-joinder of necessary parties? ...OPD

9. Relief.”

4. After considering the pleadings and evidence lead by the parties, suit was partly decreed by deciding issue No. 1 in favour of plaintiff and issue No. 2 against the plaintiff. Accordingly defendants were restrained by giving following relief to the plaintiff:-

“35. In view of my findings on issue No. 1 to 8, supra, the suit filed by the plaintiff is partly decreed and defendants are restrained from changing the nature and raising construction in any manner in and over the suit land comprised in Khata/Khatoni 369/389min, Khasra No. 49, g situated at Village Deoli, Pargana and Tehsil Sadar, District Bilaspur, H.P. In the facts and circumstances of the case the parties are left to bear their own cost(s). Decree sheet be prepared accordingly. Case file after competition be consigned to record room.”

5. Prayer in alternative to pass a decree for possession was declined by holding that plaintiff had failed to prove that defendants had encroached upon the suit land during pendency of the suit.

6. It is apt to record that for proving the encroachment on the suit land during pendency of the suit, plaintiff had relied upon demarcation report Ex. PW-3/A. However, the said evidence was not considered by the Trial Court on the ground that for conducting demarcation, Demarcating Offic