Allowed

Santosh Kumari v. Sanjeev Kumar

Himachal Pradesh HC31 May 2017CMPMO/46/2017

Case brief

AI extract

What is this about?

Single Judge allowed petition for appointment of Local Commissioner to demarcate disputed land in a property suit filed eight years earlier, finding belated filing permissible under CPC Order 26 Rule 9 to ascertain ongoing encroachment.

What did the court decide?

Appointed Tehsildar, Dehra to conduct demarcation of suit land on 24.6.2017 with parties present; petitioner to deposit fees and court costs.

Santosh Kumari Vs Sanjeev Kumar — Landlord and Tenant | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMPMO No. 46 of 2017.

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Date of decision: May 31, 2017.

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Smt. Santosh Kumari. …...Petitioner. Versus Sanjeev Kumar and another. …..Respondents.

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Coram

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The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?¹ Yes.

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For the petitioner : Mr. Anand Sharma, Advocate. For the respondents : Mr. Dheeraj K. Vashisht, Advocate.

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Dharam Chand Chaudhary, J. (Oral)

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Order dated 5.11.2016 passed by learned Civil Judge (junior Division), Dehra, District Kangra in application filed by the petitioner-plaintiff under Order 26 Rule 9 CPC is under challenged in this petition. The petitioner-plaintiff claims herself to be owner in possession of the suit land bearing Khasra No. 744 situated in Mohal Moin, Mauza Gangot, Tehsil Dhera, District Kangra, H.P. She has filed a suit against the respondentsdefendants for the decree of permanent prohibitory and mandatory injunction. The suit presently is at the stage of recording her evidence in rebuttal. It is at that stage she had

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1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.

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filed the application under Order 26 Rule 9 CPC on the ground that the respondents-defendants during pendency of the suit, while raising the construction of their house on the adjoining land bearing Khasra No. 745, have encroached upon a portion of the suit land bearing Khasra No. 744. The prayer, as such, was made to appoint some revenue expert as Local commissioner to conduct the demarcation on the spot and pinpoint the encroachment so made by the respondents-defendants.

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The application has been resisted and contested on the ground, inter-alia, that the respondents-defendants have already obtained the demarcation on the adjoining land bearing Khasra No. 745. The petitioner-plaintiff allegedly was found to have encroached upon a portion of the said land. They, as such, have filed a suit for possession thereof against her. Also that, no fresh demarcation is required. The application being belated having been filed after eight years of the institution of suit has also been sought to be dismissed.

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Learned trial Judge taking into consideration the demarcation of the adjoining land already conducted and on being influenced with the factum of its institution after a period over eight years has dismissed the same.

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The demarcation of the suit land i.e. Khasra No. 744 has not been conducted. The respondents-defendants may have obtained the demarcation of their adjoining land bearing Khasra

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No. 745, however, that report cannot be considered to find out the encroachment if any made by the respondents-defendants over the suit land bearing Khasra No. 744 allegedly during the pendency of the suit. Learned trial Judge, therefore, has went wrong in considering the demarcation of their own land obtained by the respondents-defendants while dismissing the application vide order under challenge in this petition.

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True it is, that the application has been filed at a belated stage i.e. after the expiry of eight years of the institution of the suit. However, Rule 9 of Order 26 CPC nowhere prohibits the institution of the application at a belated stage and rather should be filed at a stage when in the interest of justice it is required to do so. True it is, that in the case in hand the evidence of the parties except for the plaintiff’s evidence in rebuttal is over. In the event of the demarcation is conducted by the competent Revenue Authority the demarcation report will only be a piece of evidence if proved on record in accordance with law. Therefore, if anything adverse to the interest of the respondents-defendants occurs during the course of demarcation of the land in dispute they shall have an opportunity to challenge the same.

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On the other hand, since the alleged encroachment has been made during the pendency of the suit, therefore, in order to appreciate the facts and circumstances of the case and

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also the evidence available on record, local inspection is essentially required to be got conducted. I, therefore, allow this petition subject to payment of 5000/- as costs to be paid by the petitioner-plaintiff in the trial Court and order to appoint Tehsildar, Dehra to visit the spot and conduct demarcation of the land in dispute bearing Khasra No. 744 in the presence of the parties on both sides. The fee of Local Commissioner shall be 10,000/- to be deposited by the petitioner-plaintiff in the Government Treasury at Dehra within a week from today. The demarcation of the land on the spot will be conducted by Tehsildar, Dehra on 24.6.2017 at 11:00 A.M. The parties through learned counsel representing them are directed to remain present on the spot on that day at 11:00 A.M. The Tehsildar after conducting the demarcation on the spot prepare the report and file the same in the Court below within one week thereafter along with Tatima (Shajra) if prepared. Learned trial Judge thereafter shall proceed with the matter further in accordance with law. The petition is accordingly disposed of.

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An authenticated copy of this judgment be sent to learned trial Court and also the Local Commissioner i.e. Tehsildar Dehra for compliance.

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(Dharam Chand Chaudhary), Judge.

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May 31, 2017, (vs)

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Santosh Kumari v. Sanjeev Kumar

Case brief

What is this about?

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Santosh Kumari v. Sanjeev Kumar

Case brief

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