IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 6 of 2011. Reserved on: 17.06.2011. Decided on: 29.06 .2011. ______________________________________________ Prithi Chand. … Appellant. Versus Shakti Chand. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. K.D. Sood, Advocate. For the Respondent : Mr. Praneet Gupta, Advocate. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge (Fast Track Court), Hamirpur in Civil Appeal No.2 of 2010, dated 3.12.2010. 2. Material facts necessary for the adjudication of this regular second appeal are that the respondent/plaintiff (hereinafter referred to as ”the plaintiff” for convenience sake) instituted a suit 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - against the appellant/defendant (hereinafter referred to as “the defendant” for convenience sake), for fixation of boundary by way of demarcation with consequential relief of permanent prohibitory injunction restraining him from interfering over the suit land in the Court of Civil Judge (Junior Division), Court No. III, Hamirpur. 3. According to the plaintiff, he was absolute owner in possession over the suit land as detailed in the plaint, whereas, the appellant/defendant was totally a stranger to the same. The defendant had uprooted the pucca boundaries and started cutting trees from the suit land. The suit was contested by the defendant by filing written statement. According to him, he has neither interfered nor did he intend to do so. It was further stated in the written statement that the suit land was got demarcated through Assistant Collector 1st Grade, Hamirpur on 28.11.1996 and boundaries were fixed on the spot. 4. Replication was filed by the plaintiff. Issues were framed by the trial Court on 12.12.2001. The learned Civil Judge (Junior Division), Hamirpur decreed the suit filed by the plaintiff on 9.12.2009 restraining the defendant from interfering over the suit land comprised in Khasra No.259/3 in any manner. The suit of the plaintiff was also decreed for possession. Thereafter the defendant preferred an appeal against the judgment and decree passed by the learned Civil Judge (Junior Division), Court No. III, Hamirpur, dated 9.12.2009 before the learned Additional District Judge (Fast - 3 - Track Court), Hamipur. He dismissed the same on 3.12.2010. Hence this regular second appeal. 5. The appeal was admitted by this Court on 7.1.2011 on the following substantial questions of law:- 1. Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence, particularly, Ext.OW-1/A, Musaavi Ext.RW-1/A, field book Ext.RW-1/B, Ext.D-1 to Ext.D-9, DA, DA-1 and Ext. RW-3/B as also the pleadings of the parties and drawing up of wrong inferences from the facts proved on record? 2. Whether the report of the Local Commissioner was being not in accordance with the High Court rules and the instructions of the Financial Commissioner was liable to be rejected and the denial of the opportunity to have the property demarcated from another Local Commissioner has vitiated the findings and the judgment is liable to be set aside? 3. Whether in the absence of the challenge to the settlement records and the proceedings of the Consolidation Officer, the suit of the plaintiff was maintainable in the civil court and could be decreed on the basis of the old record by ignoring the presumption of truth attached to the revenue records which has vitiated the findings?” 6. Mr. K.D. Sood, learned counsel for the defendant has strenuously argued that the demarcation report Ex.OW-1/A is not in accordance with the High Court Rules and Orders and the instructions of the Financial Commissioner. According to him, the learned courts below have misread Ex.OW-1/A, i.e. copy of the - 4 - report of Local Commissioner, Musavi RW-1/A, Field Book Ex.RW- 1/B and also the pleadings of the parties. 7. Mr. Praneet Gupta, learned counsel for the plaintiff has supported the judgments and decrees passed by both the courts below. 8. I have heard the learned counsel for the parties and gone through the record carefully. 9. Since all the substantial questions of law are interlinked and interconnected, they are taken up together for determination to avoid repetition of discussion of evidence. 10. Plaintiff has appeared as PW-1. According to him, he was owner in possession of the suit land, whereas, defendant had encroached upon about 1 kanal of his land. According to him, Local Commissioner has been appointed by the Court, who found 1 Kanal land belonging to the plaintiff to be in possession of the defendant. He has also tendered in evidence copy of jamabandi for the year 1993-94, Ex.P-1. 11. DW-1, Prithi Chand, defendant has deposed that he has nothing to do with the suit land. According to him, the Local Commissioner had not demarcated the land as no boundary marks had been affixed. DW-2, Dharam Chand has deposed that the demarcation had taken place in his presence in the year 1996 and no land belonging to the plaintiff was found in possession of the defendant. - 5 - 12. Statement of DW-3, Rattan Singh, Field Kanungo is not relevant, who had earlier demarcated the suit land. The report submitted by him has been set aside by the trial Court vide order dated 7.1.2009. 13. It will be relevant at this stage to reproduce the order dated 9.4.2003 passed by the learned Sub Judge 1st Class, Hamirpur, which reads thus:- “… No reply is sought to be filed to the application under Order 26 Rule 9 CPC. Therefore, keeping in view the facts and circumstances of the present case, the application is allowed. Shri Rattan Chand, Office Kanungo, D.C. Office Hamirpur is appointed as local commissioner in this case with the direction to visit the spot after due notices to both the parties or their representatives and thereafter to demarcate the suit land comprised in khata No.1, khatoni No.1, Khasra No.259, measuring 6 kanals 12 marlas, situated in Tika Chalokhar, Tappa Kuthera, Tehsil and District Hamirpur, H.P. and thereafter to find out the encroachment made by the defendant if any over the suit land by preparing separate tatima. His fee is assessed to Rs.1000/- which shall be paid by the applicant/plaintiff on the spot against proper receipt. Letter of commission be issued forthwith and report be called for on or before 28.6.2003. Sd/- Sub Judge 1st Class (1), Hamirpur, H.P.” Thereafter, the Local Commissioner, i.e. Rattan Singh, Field Kanungo has submitted the report. His report was set aside vide order dated 7th January, 2009 and Shri Narinder Singh, Tehsildar, - 6 - Sujanpur was appointed as new Local Commissioner with the consent of respective counsel of the parties. He was directed to demarcate the suit land as per order dated 9.4.2003. The order dated 7.1.2009 reads thus:- “… I have heard respective counsel with respect to Local Commissioner’s report that has been submitted in connection with the present case and also gone through the objections that have been filed on behalf of defendant to the same. After going through the Local Commissioner’s report, it comes out that the Local Commissioner has talked of having measured Khasra Nos. 256, 255, 257, 258, 254, 253, 253/1, 274, 272 and 260 and thereby had embarked upon upon measuring Khasra No.259 i.e. the suit land. However from the report it is not coming out that as to how he went about measuring these Khasra numbers and as to whether measurement tallied exactly and how with the available record as after measuring these Khasra numbers, the Local Commissioner had demarcated the suit land in question and has found defendant to be in possession over some portion of it. As such objections of defendant that the demarcation was not properly conducted is accepted and accordingly, the Local Commissioner’s report is set-aside. On the consent of the respective counsel Tehsildar, Sujanpur is appointed as Local Commissioner who is directed to demarcate the suit land as per order dated 9.4.2003. His fee is assessed at Rs.1000/- which shall be paid by the applicant at the spot. Let report be called for 03.03.2009.” - 7 - 14. The Local Commissioner submitted the report. The defendant filed objections to the same. Thereafter the following issue was framed by the trial Court on 11.9.2009:- “Whether the Local Commissioner’s report is liable to be set aside in view of the objections filed by defendant, as alleged? OPD” 15. What emerges from order dated 9.4.2003 is that the Local Commissioner was appointed to demarcate the suit land comprised in Khata No.1, Khatauni No.1, Khasra No.259 measuring 6 kanals 12 months situate in Tika Chalokhar, Tappa Kuthera, Tehsil and District Hamirpur and thereafter to find out the encroachment made by the defendant, if any, over the suit land by preparing separate tatima. The report submitted by Rattan Chand, Office Kanungo was set aside, as noticed above, by the trial Court on 7.1.2009 and Tehsildar, Sujanpur was appointed as Local Commissioner. He was specifically directed to demarcate the suit land as per order dated 9.4.2003. He demarcated the suit land on the basis of Ex.RW-1/A, Aks Musavi. He recorded the statements of parties vide RW-1/C and RW-1/D. The plaintiff had accepted the report, but the defendant has not accepted the report. The copy of Field Book is RW-1/A. The suit has been filed by the plaintiff in the year 1997. The village map was prepared during consolidation and this was the latest document. However, the settlement has taken place in the year 2004-2005. The latest record, which was available at the time of filing the suit, was the map prepared during - 8 - consolidation. Shri Narender Singh, OW-1 has demarcated the suit land and furnished report Ex.OW-1/A on the basis of musavi prepared during the consolidation. He has found that the defendant has encroached upon the land of plaintiff. The Local Commissioner has fixed pucca points as per instructions issued under the High Court Rules and Orders and the instructions issued by the Financial Commissioner. According to report Ex.OW-1/A, land comprised in Khasra No.259/1 measuring 0-12 kanal and Khasra No.259/2 measuring 0-15 kanal, kita-2, total measuring 1-7 kanal was found to have been encroached by the defendant. The defendant has not raised any objection at the time when new Local Commissioner was appointed after setting aside the earlier report whereby he was directed to demarcate the land as per order dated 9.4.2003. 16. Mr. Praneet Gupta, learned counsel for the plaintiff has also argued that the parties are litigating over the latest settlement and in these circumstances, there is neither any illegality nor any irregularity in the report furnished by the Local Commissioner, whereby he had come to the conclusion that the defendant has encroached upon 1-7 kanal of land of the plaintiff. 17. Mr. K.D. Sood, learned counsel for the defendant has drawn the attention of the Court to the statement of OW-1, Narender Singh. It is not in dispute that the Local Commissioner’s report is based on the musavi, prepared at the time of - 9 - Consolidation. The settlement has taken placed in the year 2004- 2005. The Local Commissioner has been directed to carry out the demarcation on the basis of the position which prevailed on 9.4.2003. It was always open to the defendant to protest at the time when the Local Commissioner was appointed on 7.1.2009 as per order dated 9.4.2003. In these circumstances, the defendant is estopped from challenging the report furnished by the Local Commissioner vide OW-1/A. The Court is also of the considered view that the matter is required to be given quietus in view of the latest report furnished by Narender Singh, OW-1. In this case the situation existing at the time of filing of the suit was to be seen. 18. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the regular second appeal and the same is dismissed, so also the pending application(s), if any. Ad-interim order dated 7.1.2011 made absolute on 30.3.2011 is vacated. No costs. (Rajiv Sharma), Judge. June 29, 2011. (sck).