R.S.A. No. 3577 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3577 of 1985 Date of decision: 12-7-2010 Amarjeet and others ......... Appellants Vs Ram Kishan and others .........Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. O.P.Hoshiarpuri, Advocate, for the appellants Mr. M.S.Rakkar, Senior Advocate with Mr. P.S.Baath, Advocate, for the respondents HARBANS LAL, J. This appeal is directed against the judgment/decree dated 2.2.1985 passed by the court of learned Additional District Judge, Jalandhar whereby he accepted the appeal and set aside the judgment/decree dated 18.8.1982 rendered by the court of learned Sub Judge Ist Class, Jalandhar vide which he decreed the suit of the plaintiff for possession against the defendants in respect of the suit land as delineated in the headnote of the plaint. The factual matrix is that the plaintiffs are the owners of the land comprised in khasra No. 101/2 measuring 9 Marlas as described in the plaint. Sometime back, the defendants took forcible possession of the same and made construction over it without any right title or interest as trespassers. They were requested to vacate the suit land by removing malba and to hand over the possession of the same to the plaintiffs but of no avail. In their joint written statement, the defendants inter-alia R.S.A. No. 3577 of 1985 2 pleaded that they have constructed five shops in their share in the suit land which was in their possession for the last more than 35 years. The following issues were framed by the learned trial Court. 1. Whether the plaintiffs are entitled to the possession prayed for?OPP 2. Whether the plaintiffs are entitled to the injunction prayed for?OPP 3. Relief After recording evidence and examining the same, the learned trial Court decreed the suit in the terms referred to hereinbefore. Feeling aggrieved therewith, the defendants went up in appeal, which was accepted by the court of learned Additional District Judge, Jalandhar. Feeling aggrieved with the reversal of the trial Court's judgment by the learned Appellate Court, the plaintiffs have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. On behalf of the appellant, it has been argued by Mr. O.P.Hoshiarpuri, Advocate that as reflected in Ex.PA the copy of the jamabandi for the year 1976-77 Radha, and Dalipa sons of Attra son of Guli are the owners in possession of the land measuring 0Kanal 9 Marlas bearing khasra No. 101/2 which is gairmumkin. The field Kanungo Krishan Dev Singh PW-2 in his demarcation report Ex.PB has given the finding that the defendants are in illegal possession of the land in dispute. Ex.PC 'Aks- shazra' as also Ex.PD 'Naksha' lend sustenance to this report, but none-the- less, the Appellate Court by merely relying upon Ex.C-1 and Ex. C-2 orders passed by the Consolidation Authorities during the pendency of the suit has set aside the judgment rendered by the learned trial Court. To controvert R.S.A. No. 3577 of 1985 3 these submissions, the learned counsel for the respondent urged with great eloquence that the demarcation proceedings were carried out at the back of the defendants-respondents. That being so, they are not bound by the same. To add further to it, as per Ex.C-1 as well as Ex.C-2 they are the owners of the suit land. As such the judgment rendered by the learned Appellate Court reversing that of the trial Court calls for no interference. I have well considered these submissions. Krishan Dev Singh (sic) under the stress of cross-examination has testified that “ I did not issue any notice to any party before the inspection of the spot. The defendants Ram Kishan, Bhagu Ram, Sant Ram, Labhu Ram and Charanji Lal were not present. They were called, but they went away. I have not mentioned the names of the defendants in my report in specific language, but I have mentioned illegal occupants. The Sarpanch and the Lambardar were not present at the time of spot inspection but neighbourers of the locality were present. I did not call any lambardar. I started demarcating from the metalled portion of the road at the asking of the persons who were present there. I did not get the demarcation from the Lal lakir as the village is far off.” The Financial Commissioner's instructions as embodied in part M, Chapter 1 of High Court Rules and Orders Volume I reads as under:- (Financial Commissioner's Instructions) (i)If a boundary in dispute, the Field Kanungo should relay it from the village map prepared at the last Settlement. If there is a map which has been made on the square system he should reconstruct the squares in which the disputed land lies. He should mark on the ground on the lines of squares the places where the map shows that the disputed boundary R.S.A. No. 3577 of 1985 4 intersected those lines and then to find the position of points which do not fall on the lines of the squares. He should with his scale read on the map, the position and distance of those points from a line of a square, and then with a chain and cross staff mark out the position and distance of those points. Thus, he can set out all the points and boundaries which are shown in the map. But if there is no map on the square system available, he should then find these points on different sides of the place in dispute, as near to it as he can, and if possible not more than 200 kadams apart which are shown in the map and which the parties admit to have been undisturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances when thus compared, agree in all cases, he can then draw lines joining these three points in pencil on the map and perpendiculars with the scale from these lines to each of the points it is required to lay out on the ground. He will then lay them out with cross-staff as before and test the work by seeing whether the distance from one of his marks to another is the same as the map. If there is only a small dispute as to boundary between two fields the greater part of which is undisturbed then such perpendiculars as may be required to points on the boundaries of these field as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map. R.S.A. No. 3577 of 1985 5 (ii)In the report to be submitted by him, the Field Kanungo must explain in detail how he made his measurements. He should submit a copy of the relevant portion of the current Settlement field map of the village showing the fields, if any, with their dimensions (karukan) of which he took measurements, situated between the points mentioned in instruction No. (i) above and the boundary in dispute. This is necessary to enable the Court to follow the method adopted and to check the Field Kanungo's proceedings. (iii)If a question is raised as to the position of the disputed boundary according to the field map of the Settlement proceeding the current Settlement, that also should be demarcated on the ground, so far as this may be possible, and also shown in the copy of the current field map to be submitted under Instruction No.(ii) (iv)On the same copy should be shown also, the limits of existing actual possession. (v)The areas of the fields, abutting on the boundary, in dispute as recorded at the time of the last Settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Field Kanungo's report with the explanation of the cause or causes of the increase of decrease, if any, discovered. (vi)When taking his measurements the Field Kanungo should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to R.S.A. No. 3577 of 1985 6 elucidate the matter in dispute. At the end, he should record the statements of all the parties to the effect that they have seen and understood the measurements that they have no objection to make to this (or if they have any objection he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court, one or other party impugns the correctness of the measurements and asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent. (vii)The above instructions should be followed by Revenue Officers or Field Kanungo whenever they are appointed by a Civil Court as Commissioners in suits involving disputed boundaries.” It follows from these instructions that the Revenue Officer whosoever is appointed to undertake the demarcation of land is obligated to explain to the parties whatsoever is being done by him and he is further supposed to enquire from them as to whether either party or both wish anything further to be done to elucidate the matter in dispute. He is under obligation to record the statements of the parties to the effect that they had seen and understood the measurements and they did not wish to have anything further done at the spot. Furthermore, the procedure of making measurements has been detailed out in these instructions. In the present one it is deducible from the afore extracted cross-examination of Krishan Dev Singh(sic) that without issuing any notice to either party, he inspected the R.S.A. No. 3577 of 1985 7 spot, though he was obliged to issue notice in writing specifying the date and time of his visit to the parties through the chowkidar of the village, who in turn was to make a report as to whether or not the service in a desired manner has been effected upon the party. In the absence of issuance of such a notice, it is very difficult to say that the defendants/respondents whose rights were to be effected by the demarcation proceedings were called upon to be present at the spot. The report Ex.PB purports to have been obtained by the plaintiffs before they filed the suit. To put it differently the demarcation has not been conducted by a Revenue Officer appointed as Local Commissioner by the Court. Krishan Dev Singh (sic) has merely stated that the defendants were called, but they went away. When they were not informed in relation to the time and date of the visit of Krishan Dev Singh to the spot for the purpose of making demarcation, how they could be expected to be there. Besides this, under the stress of cross-examination, he has deposed that he has not mentioned the names of the defendants in his report in specific language. In my estimation this demarcation report Ex.PB does not conform to the afore quoted Financial Commissioner's instructions rather the same is in derogation thereof. Sequelly, it would be not in the right perspective to make this report to be the basis for the decision of this case. Ostensibly, Krishan Dev Singh (sic) while carrying out demarcation proceedings had thrown the aforementioned instructions to the wind. The First Appellate Court has relied upon Ex.C-1 as also Ex.C-2 the orders passed by the Consolidation Authorities during the pendency of the suit, which was instituted in 1980 whereas the defendant-respondents had recourse to the consolidation proceedings in the year of 1984, which is obviously after four years after the suit was instituted. It is on the basis of R.S.A. No. 3577 of 1985 8 these orders passed by the Consolidation Authorities that the learned lower Appellate Authority has disturbed the judgment rendered by the learned trial Court. In this scenario as the propriety demands, the judgments recorded by both the Courts below are hereby set aside. The case is remanded back to the learned trial Court to decide the matter afresh after seeking report from the Local Commissioner to be appointed from amongst the Revenue Officers mentioned in the Financial Commissioner's instructions. The fee of the Local Commissioner to be assessed by the learned trial Court shall be deposited by both the parties in equal shares within the time frame to be fixed by the learned trial Court. The parties through their respective counsels are directed to put in their appearance before the learned trial Court on 18.8.2010. The Registry is directed to send a certified copy of this judgment to the learned trial Court well before the said date. (HARBANS LAL) JUDGE July 12, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No