IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 209 of 2010 Date of decision: 20.10.2010 _________________________________________________________________ Chamel Singh & another. .....Appellants. Versus Hari Ram and others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. _________________________________________________________________ For the appellants: Mr. B.C. Verma, Advocate. For the respondents: Mr. Haminder Chandel, Advocate, for respondents No. 1 to 7. None for respondents No. 8 to 11, though served. V.K. Sharma, J (Oral). Respondents No. 8 to 11 are absent despite valid service and are accordingly proceeded against ex parte. 2. The present first appeal is against the judgment dated 01.05.2010 of the learned District Judge, Hamirpur, H.P., whereby the appeal filed by the respondents herein, who were defendants before the learned trial court, has been allowed and the case remitted to the learned trial court in terms of para 29 of the impugned judgment dated 01.05.2010, which is as under: “29. It will be noticed that the disputed Khasra No. 2128 is situated in the boundary of District Hamirpur and District Mandi. There is stated to be a 'Nala' on the spot which divides the two districts in its 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... boundary, on the Eastern side, as shown in the Aks Tatima, placed on file. Its Karukans on eastern side are given as 20 + 26 + 64 + 41 = 151. It is mentioned in the plaint in Para No. 6, that these Karukans are mentioned wrongly in the Aks Tatima, whereas they are 161, and this has reduced the land of the plaintiff. The Local Commissioner while giving the report Ext. OW1/B, has not explained as to how the karukans 151 are mentioned wrongly and why they should be 161 only. In order to clarify the same, a reference was made to the earlier demarcation report, copy of which is Ext. DW3/B on file. This demarcation was conducted by the Consolidation Officer and it is, dated December 31, 1994. In the same, it is mentioned that the Nala dividing two districts of Hamirpur and Mandi, would be shifted about 56 Karams towards Mandi district, if measurement is conducted as per settlement record. So, obviously, there is likelihood of dis-location of the boundaries of two districts and the land owners on the other side would also be adversely affected. Therefore, even the latest demarcation report, dated, June 13, 1996, Ext. OW1/B, also cannot be accepted. In fact, the demarcation is required to be done by associating the revenue agency of District Mandi also, so that first of all, boundary of the two districts if ascertained and thereafter, the allegation of encroachment is probed. So, on this ground also, demarcation report Ext. OW1/B is liable to be set aside and the suit is liable to be remanded to the learned trial Court for fresh disposal by appointing Tehsildar, Bhoranj as the Local Commissioner in the case and directing him to give demarcation on the spot by associating the revenue agency of District Mandi also. Thereafter, the suit shall be ...3... decided afresh in accordance with law.” 3. Briefly stated the facts of the case are that the appellants herein, being the plaintiffs, had filed a suit for possession against the respondents herein, being the defendants, in respect of the land comprised in khata No. 288 min, khatauni No. 324, khasra No. 2128 corresponding to old khasra No. 2443/1994, measuring 37 kanals, 18 marlas, situate in Tika Sangroh, Tehsil Bhoranj, District Hamirpur, H.P. (hereinafter referred to as the suit land), which was decreed. Being aggrieved and dissatisfied, the matter was carried in appeal by the respondents-defendants to the court of learned District Judge, Hamirpur, H.P., which court has passed the impugned order dated 01.05.2010. 4. In view of agreement between the parties, the appeal is taken up for final disposal at this stage without calling for the records of the learned courts below. 5. Admittedly, a Local Commissioner was appointed by the learned trial court to demarcate the land in dispute. Accordingly, the Local Commissioner submitted his report which was made basis for decreeing the suit of the appellants-plaintiffs by the learned Civil Judge (Senior Division), Hamirpur, H.P., vide judgment and decree dated 01.09.2008. In appeal, the learned District Judge has observed that since the land in dispute is located on the boundary of two districts, namely, District Hamirpur and District Mandi, and in case the report submitted by the Local Commissioner is accepted, the very location of the suit land would be partially shifted from District Hamirpur to District Mandi. In such situation, the learned District Judge was of the opinion that a fresh demarcation ought to be carried out and while doing so, revenue ...4... authorities of both the districts, mentioned hereinabove, are required to be associated. With these observations, the appeal was allowed by setting-aside the judgment and decree dated 01.09.2008 of the learned trial court. 6. In all fairness, both the learned counsel appearing on the either side submit that though it was not specifically pleaded on behalf of the parties that in case the report of the Local Commissioner is accepted, a part of the suit land would be shifted from District Hamirpur to the adjoining District Mandi, except that such a plea was raised by the respondents-defendants in the objections filed by them to the LC report, yet even if the learned first appellate court was of the view that a fresh demarcation was required to be carried out, it should not have resorted to wholesale remand of the case and instead would have been well advised to itself undertake the exercise of appointing a fresh Local Commissioner in the light of the above observations made by it vide para 29 of the impugned judgment dated 01.05.2010. The submission on the face of it appears to be genuine and justified as also in accordance with law. The reasons to arrive at this conclusion are that the suit was filed as far back as on 16.03.1995. It was finally decided by the learned trial court only on 01.09.2008, i.e., after more than 13 years. Thereafter, the appeal which was filed on 13.10.2008 took another about one and half years for final disposal. If at this stage, the parties are to be relegated to the point from which they had started in the year 1995, it would amount to travesty of justice. 7. In view of the above, the appeal is accepted and the impugned judgment dated 01.05.2010 is reversed with a direction to the learned first appellate court to restore the appeal to its original number and thereafter appoint a fresh Local Commissioner and proceed to ...5... decide the appeal in accordance with law. 8. The parties through their learned counsel are directed to appear before the learned District Judge, Hamirpur on 9th November, 2010. A copy of this judgment be sent for information and compliance to both the learned courts below so as to reach well before the date fixed. 9. The appeal is disposed of in the above terms with no order as to costs. 10. In view of disposal of the main appeal, pending CMP(s), if any, shall also stand disposed of, as infructuous. (V.K. Sharma) Judge 20th October, 2010 (virender)