IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Lettes Patent Appeal No. 118/2008 Decided on : December 16, 2008 M/s Intown Resorts and others …Appellant Versus Rao Inderjit Singh & others …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Bhupinder Gupta, with Mr. Bimal Gupta, Advocates. For the Respondent : Mr. Vinay Kuthiala Advocate. Per Surjit Singh, Judge(Oral) This Letters Patent Appeal is directed against the order dated July 11, 2008, passed by the learned Single Judge on an application for appointment of Local Commissioner under Order 26 Rule 9 of the Code of Civil Procedure read with Section 75 of the Code of Civil Procedure in civil suit No. 5 of 2007. The said application was moved by the plaintiffs, respondents herein. Relevant facts are as follows. Respondent-plaintiff has filed a suit claiming that he is owner in possession of 3 bigha 15 biswas property comprised in Khasra Nos. 2237/1052, 2313/2238/1052.2314/2238/1052, 2303/61 and 2304/61. His case is that initially the property belonged to a firm named and style as M/s Shaligram and Firms. From the firm, property was purchased by one Gunwati Devi, sister of the father of respondent. Said Whether reporters of the local papers may be allowed to see the judgment? - 2 - Gunwati transferred the property in favour of Rao Birender Singh, the father of the respondent and thereafter Rao Birender Singh transferred it to the respondent by a sale deed in the year 1987. The case of the present appellants who are defendants in the suit, is that only one bigha fifteen biswas property, denoted by Khasra Nos. 2237/1052, was sold to Gunwati by the aforesaid firm and that rest of the property alongwith some other area has been purchased by them from the original owner, i.e., Prem Sagar, a partner of the aforesaid firm, as the said Prem Sagar got the entire property in a family partition. . Respondents filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking temporary injunction restraining the appellants from raising any construction on the entire suit property measuring 3 bigha 15 biswas. The learned Single Judge ordered that prima facie the respondents had purchased only 1 bigha 15 biswas area bearing Khasra No. 2237/1052 and therefore, he was not entitled to the relief of temporary injunction in respect of the remaining 2 bigha area denoted by other four numbers in the plaint. Respondents filed LPA against that order. There was some settlement between the parties per which pending disposal of the main suit, appellants were to carry out construction on the remaining four numbers, but while doing so they were not to cause any damage to the frame and structure of existing main building, servant quarters, out houses and water tank and were also not to interfere with the vacant land between existing main building and out houses and were also to keep 10 feet wide strip of land abutting to the main - 3 - building of the respondents. L.P.A. was disposed of in terms of this settlement. Thereafter respondent moved an application for appointment of Tehsildar, Shimla as Local Commissioner for demarcation of 3 bigha 15 biswas of land, which he claims to belong to him, as according to him, Tehsildar Kasauli had not been carrying out the demarcation, despite repeated requests. Learned Single Judge has allowed the application. On behalf of respondents it has been argued that the appeal is not maintainable since the impugned order is not a judgment within the meaning of clause 10 of Letters Patent of Lahore High Court which applies in the case of our High Court also. Now question arises whether the impugned order is a judgment within the meaning of the said clause or not. If it is a judgment, the appeal may be admitted and if it is not then the appeal will not be even maintainable. A three judge Bench of the Supreme Court in Shah Babulal Khimji vs. Jayaben D. Kaniaand another (1981) 4 SCC 8 has held that the term judgment used in clause 15 of Letters Patent of Bombay, Calcutta and certain other High Courts which is similar to clause 10 of our Letters Patent, is much wider than the definition of the judgment appearing in Code of Civil Procedure and that all orders which affect right of the parties and have the characteristics of finality come within the ambit of judgment for the purpose of Letters Patent Appeal. In the present case, the impugned order does not by itself affect the rights of the parties and nor does it have the traits of - 4 - finality because the report which the Local Commissioner may submit will be subject to objections by the parties and also because it can be used by Trial court only for the purpose of elucidation of evidence, which the parties would be leading. In any case, even if the final judgment in the civil suit is based on the said report, the aggrieved party shall have the right to assail the report along with final judgment and decree passed in the main suit. So, we are of the considered view that the impugned order is not a judgment within the meaning of clause 10 of Letters Patent of Lahore High Court as applicable to our court. Consequently, the appeal is dismissed being not maintainable. ( R.B. Misra), J December 16, 2008(cm) ( Surjit Singh ), J