IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 591 of 2009 Judgment Reserved on :24.2.2010 Date of decision : 2.3..2010 ____________________________________________________ Amar Singh …Petitioner. Versus Narpat Ram …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the petitioner : Mr. Ashok Kumar Sood, Advocate. For the Respondent : Mr. Hem Raj Bhardwaj, Advocate. Kuldip Singh, Judge The order dated 7.9.2009 passed by learned Civil Judge (Jr. Division), Kasauli in case No.65/6 of 2009 in main Case No.214/1 of 2006 has been assailed by petitioner/plaintiff under Article 227 of the Constitution of India. 2. The facts in brief are that petitioner had filed a suit for permanent prohibitory injunction restraining the respondent from raising construction on his land in contravention of Town and Country Planning Act and the rules framed thereunder besides regulations framed by Special Area Development Authority (SADA), Solan. It has also been prayed that respondent be restrained from encroaching upon ______________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 suit land in any manner and from raising construction on any portion of the suit land over which the respondent has already encroached upon and has raised pillars. The petitioner has prayed mandatory injunction to remove all types of structures raised on portion of the suit land, restore status quo ante after demolition of the same. The prayer has also been made to give direction to respondent to demolish structure raised on set back areas and to bring his building in accordance with provisions of Town and Country Planning and Special Area Development Authority. The petitioner has ultimately prayed for decree of mandatory injunction and vacant possession of the encroached portion of the suit land. In para-8(a) of the amended plaint, it has been pleaded that the two pillars and projection and about twenty feet lintel so constructed by the respondent is inside the land of the petitioner who had applied for demarcation of the lands so as to know exact extent of the encroachment by the respondent. 3. The suit was contested by the respondent. He has denied that he had encroached any part of the suit land. The petitioner had filed application dated 30.6.2009 under Order 26 Rule 9 read with Section 151 CPC for appointment of Local Commissioner to demarcate the boundaries of khasra Nos.939/630 and 629 and also to prepare Naksha Tafawat. In the application, it has been submitted that respondent is co-owner of land comprised in khasra No.629 whereas khasra No.939/630 is owned by petitioner. The petitioner earlier had applied to the Assistant Collector, Kasauli for demarcation of the land on 8.1.2008. The Kanungo had inspected the spot on 7.8.2008 but did 3 not complete the demarcation. On 26/27.5.2009 the demarcation was carried out on the spot. The encroachment of respondent was found on khasra No.939/630. The statement of respondent was recorded by Kanungo on 27.5.2009 which also establishes that respondent has made encroachment on khasra No.939/630. The petitioner on receipt of certified copy of demarcation report was surprised to note that the report prepared by the Kanungo is altogether different from the proceedings and facts and encroachment which was found on the spot. It has been submitted that petitioner is unable to get the demarcation because of the conduct of Revenue Agency. In these circumstances, the petitioner had applied for appointment of Local Commissioner and demarcation of the two sets of lands. 4. The respondent had contested the application and denied the claim of the petitioner. It has been denied that Field Kanungo had found any encroachment as alleged. The respondent has denied that his statement was recorded. The application is not maintainable as the petitioner had already got his land demarcated. The evidence has been led by the petitioner and the application has been filed to delay the proceedings. 5. The learned Civil Judge has held that earlier demarcation conducted by the Field Kanungo has not been set aside and dismissed the application. 6. The learned counsel for the petitioner has submitted that petitioner is unable to get proper demarcation on the application of petitioner submitted on 8.1.2009 for demarcation of land khasra No.939/630 and khasra No.629 due to the conduct of the Revenue 4 Agency. The case of the petitioner is that it is difficult for him to prove encroachment in absence of demarcation. The learned counsel for the petitioner has relied on Bali Ram v. Mela Ram and another AIR 2003 (HP) 87, Prithi Singh vs. Bakshi Ram and another Latest HLJ 2006 (HP) 5, Haryana Waqf Board vs. Shanti Sarup and others (2008) 8 SCC 671. 7. The encroachment can be established by demarcation in a boundary dispute. The demarcation can be obtained by a party from the Revenue Agency without the intervention of the Court by filing appropriate application for demarcation of the land. The demarcation also can be obtained by a party during the pendency of the litigation by filing appropriate application in the Court for appointment of Local Commissioner and to demarcate the land to find out the encroachment. In the present case, the petitioner vide application dated 8.1.2009 had applied to the Revenue Agency for demarcation of the land in question. It is the case of the petitioner that thereupon the demarcation was carried out. A copy of demarcation report dated 20.6.2009 (sic illegible) has been placed on record by the petitioner. In the application under Order 26 Rule 9 read with Section 151 CPC the petitioner has shown doubt regarding the correctness of the ultimate report submitted by Field Kanungo and he has pleaded that in these circumstances petitioner is unable to get the demarcation because of the conduct of Revenue Agency, therefore, he had applied for demarcation and appointment of Local commissioner through the intervention of the Court. 5 8. The demarcation of boundaries is provided in Chapter 10 of the Himachal Pradesh Land Records Manual. The Chapter 10.8 provides that in case the demarcation is given by the Field Kanungo, the Revenue Officer shall call the parties before him and record statements of the concerned parties. He shall also see that the demarcation was done in accordance with the procedure prescribed by Financial Commissioner (Revenue). In case the parties have no objection regarding demarcation given by the Field Kanungo, he will pass orders accordingly. It has further been provided in Chapter 10.8 that if the Revenue Officer finds that the demarcation has not been given in conformity with the Financial Commissioner’s instructions or the parties are dissatisfied with the demarcation given by the Field Kanungo, the Revenue Officer shall proceed to the spot and demarcate the boundaries himself in accordance with the instructions of the Financial Commissioner referred to above. The demarcation report dated 20.6.2009 has been submitted by Field Kanungo. There is no averment in the application for appointment of Local Commissioner that the report dated 20.6.2009 has been ultimately accepted or not by the Revenue Officer as provided in Chapter 10.8 of the Himachal Pradesh Land Records Manual. 9. It is not a case where demarcation report dated 20.6.2009 has been set aside or not accepted by the court and thereafter the petitioner had applied to the Court for appointment of Local Commissioner to carry out the demarcation. In the present case demarcation of the land in question at the instance of petitioner has already been carried out, which has not been set aside. Therefore, 6 judgments relied by the learned counsel for the petitioner are not applicable in the facts and circumstances of the case. 10. The Section 107 of the Himachal Pradesh Land Revenue Act, 1954 authorizes the Revenue Officers to define the limits of any estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require survey-marks to be erected or repaired. The classes of Revenue Officer are provided in Section 7 of the said Act. It is the case of the petitioner that he had given the application to Revenue Officer for demarcation of the land and Kanungo has prepared demarcation report dated 20.6.2009 . In Radha Soami Satsang Beas v. State of H.P. and another ILR (XIII) 1984 (HP) 317 it has been held that a Revenue Officer exercising powers under section 107 of the Act is a statutory authority exercising powers and discharging functions entrusted to him under the enactment and that the powers so vested are exercisable by him and none other. If the Revenue Officer has acted without or in excess of jurisdiction or has committed an illegality or irregularity in the exercise of his jurisdiction, such excess, error or irregularity is curable in exercise of revisional powers conferred by section 17 of the Act. The demarcation carried out by Kanungo is subject to confirmation as per Chapter 10.8 of The Himachal Pradesh land Records Manual. There is nothing on record to show that the demarcation report dated 20.6.2009 has not been approved/confirmed by Revenue Officer or set aside or it has not been accepted by the Court. In these circumstances, at this stage Local Commissioner cannot be appointed 7 under Order 26 rule 9 CPC. There is no merit in the petition which is accordingly dismissed. No costs. 11. The parties through their learned counsel are directed to appear before the learned trial Court on 22.3.2010. The record of the learned trial Court be sent back immediately, so as to reach before the date fixed. 12. In view of disposal of main petition the CMP No.838/2009 is rendered infructuous. Interim order dated 20.10.2009 stands vacated. March 2, 2010 (Kuldip Singh) (sks) Judge.