IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 202 of 2008 Reserved on : 7.4.2010 Date of decision : 19.5. 2010 Rattanjeet Singh …Petitioner Versus Sudha Khera and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. Ankush Dass, Advocate. For the Respondents : Mr. G.D.Verma, Sr.Advocate with Mr. B.C.Verma, Advocate for respondents No. 1 to 3. Kuldip Singh , Judge The plaintiff No. 1 has filed the revision against the order dated 5.9.2008 passed by the learned Civil Judge (Jr. Division) Court No.3, Shimla in case No. 88-1 of 2003 rejecting the application of plaintiff under Order 7 Rule 1`4 (3) read with Section 151 C.P.C. for placing some documents on record and summoning some witnesses. The petitioner has filed CMP No. 639 of 2009 for converting the Civil Revision into petition under Article 227 of the Constitution of India. The revision is being disposed of without going into the question of 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 maintainability, therefore, CMP No. 639 of 2009 requires no order and is disposed of accordingly. 2. The facts, in brief, are that petitioner and proforma respondent No.4 have filed a suit for possession of land measuring 20.06 sq. meters comprised in Khasra No. 382, Chepsley Estate, Up-Mohal Lakkar Bazar, Tehsil and District Shimla on the grounds that respondents No.1 to 3 have encroached the said land. In addition to possession, a prayer for recovery of Rs. 14,000/-as use and occupation charges at the rate of Rs.200/- per day from the date of the institution of suit till delivery of possession has also been made. 3. It is the case of the petitioner that petitioner and proforma respondent No.4 had sold two plots to Rajeev Khera, predecessor-in-interest of respondents, one plot measuring 113.7 sq. yards comprised in khasra Nos.783/432/F and another plot measuring 26 sq. yards comprised in Khasra No. 483/432/Z as per tatima through separate sale deeds dated 1.11.1975 and 7.6.1976, respectively and respondents had raised construction covering the entire land which was purchased from the petitioner and proforma respondent No.4. 4. In the year 2002 the respondents illegally and unauthorisedly improvised a passage and flower bed on the 3 land of the petitioner and proforma respondent No.4 comprised in Khasra No. 382 by encroaching land measuring 20-06 sq.meters. The petitioner got the land demarcated from revenue agency and the encroachment made by respondents No.1 to 3 was confirmed in the demarcation conducted on 21.7.2003 on the spot. The respondents No.1 to 3 were requested to remove their encroachment, they were also notified that for illegal encroachment, they would be liable to pay Rs. 200/- per day use and occupation charges. The respondents No.1 to 3 did not vacate the encroachment and took the stand in their reply dated 16.9.2003 that they have purchased the piece of land. The petitioner and proforma respondent No.4 in these circumstances had filed the suit. 5. The respondents contested the suit by filing written statement in which preliminary objections of maintainability, suppression of material facts, harassment, incorrect valuation of the suit for the purpose of court fee and jurisdiction have been taken. It has been alleged that petitioner and proforma respondent No.4 had sold land comprised in Khasra No. 382 new Khasra No. 783/432/2/Z to the predecessor in interest of the respondents No.1 to 3 vide sale deed dated 7.6.1976 and since then, the respondents No.1 to 3 through their predecessor-in-interest are in possession of the said land. The encroachment of land alleged by petitioner and proforma respondent No.4 was denied. 4 6. It has been pleaded that respondents No.1 to 3 are owners in possession of Khasra No. 382 and mutation to this effect was attested on 20.2.2004 in favour of respondents No.1 to 3. The petitioner and proforma respondent No.4 have no right, title over Khasra No. 382. The petitioner and proforma respondent No.4 have marked the boundaries of their entire estate and the land of respondents No.1 to 3 comprised in Khasra Nos. 381, 382, 383 and 384. The petitioner and proforma respondent No.4 have nothing to do with Khasra Nos. 381 to 384 as they have already sold the land of these khasra numbers to the predecessor-in-interest of respondents No.1 to 3. The sale deed dated 11.6.1976 is not denied. The petitioner and proforma respondent No.4 have sold the land comprised in Khasra Nos.783/432/2/F (old) which has been given new Khasra Nos. 381, 383, 384 total measuring 113.7 sq. yards and land comprised in Khasra Nos. 783/432/2/Z (old) which has been given new Khasra No. 382 measuring 26 sq. yards. The mutation of land comprised in khasra No. 382 has also been attested in favour of respondents No. 1 to 3. The respondents No.1 to 3 denied the claim of the petitioner and proforma respondent No.4. In replication, the petitioner and proforma respondent No.4 reiterated their stand. 7. The petitioner filed an application under Order 7 Rule 14 (3) read with Section 151 CPC. It has been alleged that during the pendency of the suit mutation No. 135 regarding land comprised in Khasra No. 382 was attested in favour of 5 respondents No.1 to 3 by the Assistant Collector 1st Grade on 20.2.2004. The petitioner filed appeal against the attestation of mutation which was dismissed by the Sub Divisional Officer (Civil) Shimla. The petitioner filed revision before the Divisional Commissioner which was accepted on 10.4.2008. The Divisional Commissioner suo motu reviewed the order on 1.7.2008 and has forwarded the revision to the Financial Commissioner Appeals who has stayed the order and directed the Assistant Collector not to proceed further till the revision is finally decided by the Financial Commissioner. 8. The petitioner had also applied to Municipal Corporation, Shimla regarding building plan of respondents No.1 to 3 under Right to Information Act. The Municipal Corporation, Shimla has now supplied the information to petitioner, which petitioner intends to bring on record. The petitioner also wanted to place on record report of retired Kanungo Devi Ram Gangta certifying the area of the building constructed and occupied by respondents No.1 to 3. The petitioner also intended to summon Devi Ram Gangta as witness to prove the report. In addition, the petitioner intended to summon the record of sanctioned building plan of respondents No.1 to 3 from Municipal Corporation, Shimla. Therefore, petitioner submitted that he may be permitted to summon concerned Junior Engineer, Office of the Architect Planner, Municipal Corporation, Shimla with the record of the sanction plan of Rajeev Khera, sanctioned vide Executive 6 Officer’s order No.215 dated 24.5.1976 and Executive Officer’s Order No. 398 dated 1.9.1976. The petitioner has also prayed for summoning Devi Ram Gangta, retired Kanungo as witness. 9. The application under Order 7 Rule 14 (3) read with Section 151 C.P.C. was opposed by respondents 1 to 3 by filing reply. It has been submitted that application is malafide and has been filed to fill up lacunas left in the evidence. PW-2 D.R. Bhagta, Naib Tehsildar has already been examined to prove demarcation on the basis of which suit was filed. On merits the respondents opposed the application and prayed for dismissal of application. 10. I have heard the learned counsel for the parties and have also gone through the record. On 7.3.2008 the suit was adjourned for the evidence of the plaintiff on 2.7.2008 but on 14.5.2008 petitioner filed an application for adjournment and suit was fixed for evidence on 7.7.2008. On 7.7.2008 an application under Order 7 Rule 14(3) CPC was filed, which was dismissed on 5.9.2008. In other words, the evidence of the plaintiff is continuing and has not yet been closed. 11. The learned Civil Judge in the impugned order has noticed that the Financial Commissioner (Appeals) vide order dated 30.5.2008 has stayed the order dated 10.4.2008 passed by the Divisional Commissioner till the disposal of the case. The order dated 10.4.2008 has been further reviewed by the Divisional Commissioner on 1.7.2008 and the revision petition has been forwarded to Financial Commissioner (Appeals) for 7 further appropriate orders. The Assistant Collector has been ordered not to proceed on the basis of order dated 10.4.2008 till the matter is taken by the Financial Commissioner (Appeals) for hearing. This factual aspect noticed by the learned Civil Judge in the impugned order has not been denied by either side. In these circumstances, no purpose will be served for granting permission to the petitioner to place on record order dated 10.4.2008 passed by the Divisional Commissioner. 12. The learned Civil Judge has rejected the request of the petitioner to examine Devi Ram Gangta by observing that report of Devi Ram is self procured and manufactured document by the plaintiff with a purpose to defeat the genuine defence of the respondents and it cannot be taken on record in view of the statement of PW-2 D.R. Bhagta. 13. The learned Civil Judge has pre-maturely observed regarding the evidence which has not yet come on record so far it relates to report of Devi Ram Gangta and his statement. The suit is not at the stage of appreciation of the evidence. The learned Civil Judge in the discussion part has not considered regarding the prayer of the petitioner for placing on record sanction plan of Rajeev Khera. The Court below has committed jurisdictional error in refusing to summon Devi Ram Gangta on the ground that report of Devi Ram Gangta is a self procured and manufactured document by the petitioner with a purpose to defeat the genuine claim of the respondents. 8 The learned Civil Judge has also committed further error of jurisdiction in not considering why sanction plan of Rajeev Khera should not come on record. The evidence of the petitioner in court below has not yet been closed, respondents No.1 to 3 will get the opportunity to cross-examine the witnesses and to lead evidence. Therefore, the additional documents and witnesses will not cause any prejudice to respondents No.1 to 3. In these circumstances, the impugned order is not sustainable. 14. In view of the above the revision is allowed, impugned order is set-aside, the petitioner is permitted to examine (i) Devi Ram Gangta alongwith record mentioned in the application (ii) summon appropriate witness from the Municipal Corporation to prove sanction plan of Rajeev Khera subject to payment of Rs. 1000/- costs to be paid by the petitioner to respondents No.1 to 3 in the Court below. The parties through their counsel are directed to appear before the Court below on 10.6.2010. The record of the court below be sent back immediately so as to reach before the date fixed. The suit was filed on 9.12.2003, the learned trial Court is directed to decide the suit expeditiously. CMP No. 1003 of 2008 infructuous. . May 19, 2010. ( Kuldip Singh ) (GR) Judge.