IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 337 of 2007 Date of Decision: 31st March, 2008 Ram Pal Appellant Versus Nirmla Devi Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr. N.K.Thakur, Advocate. For the respondent: Mr.Ajay Kumar, Advocate. Sanjay Karol, J. (Oral) The plaintiff’s Suit No. 55/1993, titled as Bhago Devi (deceased) through Ram Pal vs. Ram Kishan and another was dismissed by the Civil Judge, Una, District Una, HP in terms of his judgment and decree dated 31st March, 2006. Aggrieved by the same, the plaintiff preferred an appeal being Civil Appeal No. 30 of 2004, titled as Ram Pal vs. Ram Kishan and others, which was dismissed in terms of judgment and decree dated 22nd May, 2007. Thus, the plaintiff has filed the present appeal against the concurrent findings of fact returned by the Courts below. The parties have been heard on the following substantial question of law:- Whether the reporters of Local Papers are allowed to see the Judgment? 2 “Whether it was incumbent upon the Courts below to have appointed a fresh Local Commissioner as stipulated under Order 26 Rule 14(3), Code of Civil Procedure Code and also the ratio of law laid down by this Court in Prithi Singh vs. Bakshi Ram and another, Latest HLJ 2006 (HP) 5?” Admittedly, the suit pertains to a boundary dispute, inter se between the parties and on the asking of the parties on 10.2.1994 Local Commissioner was appointed by the trial Court. However, the report submitted by the Local Commissioner was rejected and the suit was dismissed on merits. The first Appellate Court also did not appoint the Local Commissioner in spite of a specific ground raised by the appellant and dismissed the suit. From a bare reading of provisions of Order 26 Rule 14(3), CPC, it is clear that where the report submitted by the Local Commissioner appointed by the Court is set aside, it is required to either issue a new commission or make such other order as it deems fit and necessary under the circumstances. Admittedly, in the present case, no order as stipulated in law was passed by the Courts below. Chapter I Part M(1) of the Rules and Orders of the Punjab and Haryana High Court as applicable to the High Court of Himachal Pradesh, provides that in cases pertaining to boundary dispute the Court is required to ascertain the factual position by appointing a Local Commissioner. For the sake or ready reference, the relevant portion is reproduced hereinbelow:- 3 “1. Local Inquiry: In “Head-Shikni” suits and other suits of boundary disputes of land falling within the jurisdiction of Civil Court it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways. (a) by suggesting that one party or the other should apply to the Revenue Officer to fix the limits, under Section 101(1) of the Punjab Land Revenue Act. Time for such purpose should be granted under Order XVII, Rule 3, of the Code of Civil Procedure; (b) by appointing a Local Commissioner; and (c) by the Court itself making a local enquiry.” In Bali Ram vs. Mela Ram and another, 2002 (3) Shim. L.C. 131, the Court held as under:- “14. Be it stated that whatever was within the power of the plaintiff to show that a piece of land owned by him has been encroached upon by the defendants, has been done by him. If the revenue agency has prepared a report which may not be according to rules, the case of the plaintiff could not have been thrown out simply for the lapses committed by the revenue agency/Tehsildar in carrying out the demarcation. No amount of oral evidence which could be led by the plaintiff, would have established the identity of the encroached land. To identify it the only way was to get it demarcated. The plaintiff adopted that course and nothing more could have been done by him. In case the Appellate Court entertained any doubt about the correctness of the demarcation and the report, the prayer of the plaintiff for appointment of Local Commissioner for demarcation of the suit land to find out the extent of the encroachment, if any, ought to have been acceded. It is the duty of the courts to ensure that substantial justice is delivered to the parties and that for the mistake of any Government agency in demarcating the land, a party should not be deprived of the justice on merits by taking recourse to technicalities. 4 15. Once the learned District Judge had entertained doubt about the correctness of the demarcation given by the Tehsildar, he ought to have appointed a Local Commissioner to demarcate the disputed area to find out whether there was any encroachment and if so, to what extent, instead of proceeding to dismiss the suit. The impugned judgment and decree, therefore, cannot be sustained.” In Prithi Singh vs. Bakshi Ram and another, Latest HLJ 2006 (HP) 5, it has been held as under:- “As referred to above, the dispute between the parties was in fact a boundary dispute. It could be solved only by demarcation, inasmuch as the land claimed by the plaintiff to be owned and possessed by him as different from the land claimed by the defendants to be owned and possessed by them and both the lands were adjoining each other. In such a situation, the only course open for the trial Court was to have appointed as Local Commissioner to visit the spot after issuing notice to both the parties and to demarcate the suit land in accordance with law. Instead of ordering the appointment of the Local Commissioner to demarcate the suit land, the learned trial Court proceeded to dismiss the application of the plaintiff under Order 26 Rule 9, CPC by taking the plea that the object of local investigation was not to collect evidence on behalf of the parties. In my opinion, appointment of a Local commissioner to demarcate the suit land, in a case which involves boundary dispute would not amount to collecting on behalf of either party. On the other hand, as referred to above, this would be the only course open to the trial Court to settle the dispute between the parties by appointing a Local Commissioner to visit the spot and to submit his report after demarcation in accordance with law.” Considering the ratio of law as laid down by the Court and also the relevant provisions of the statute, in my view, the matter needs to be 5 remanded back to the trial Court for the purpose of appointment of new Commission. The question of law is answered accordingly. Accordingly the judgments and decrees dated 22.5.2007 and 31.3.2006 are set aside and the matter is remanded back to the trial Court for consideration afresh, after appointing the Local Commissioner and considering his report. The suit is restored to its original position. Learned counsel for the parties undertake to appear before the concerned Court on 25th April, 2008. Since the matter pertains to the year 1993, it is expected of the Court to dispose of the main matter on merits in accordance with law, preferably within a period of three months. The appeal is accordingly disposed of. CMP No. 552 of 2007 In view of the disposal of the main appeal, the present application is also disposed of. 31st March, 2008 (Sanjay Karol) (C) Judge.