IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.307 of 2022 Decided on 09th October, 2025 Shyama Pathik & Ors. …Petitioners Versus Satya Auckta …Respondent Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? For the petitioners : M/s Y.P. Sood and Praveen Chauhan, Advocates. For the respondent : Mr. Sheetesh Khanna, Advocate, through v.c. with Mr. Yash Sharma, Advocate, Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioners have prayed for the following relief:- “It is, therefore, prayed that this petition may kindly be allowed and impugned orders dated 7.1.2022 (Annexure P-4) and order dated 6.6.2022 (Annexure P-7) passed by the Ld. Senior Civil Judge Court (I), Rohroo, District Shimla in Civil Suit No. 19/1 of 2017 titled Hukam Chand Versus Satya Auckta may kindly be ordered to the set aside and Application Annexure P-5 for appointment of Local Commissioner may kindly be allowed and Local Commissioner may kindly be ordered to be appointed to carry out demarcation of the suit land in the interest of justice and fair play.” 2 2. Brief facts necessary for the adjudication of this petition are that the predecessor-in-interest of the petitioners has filed a suit for vacant possession of the suit land against the respondent/defendant. Petitioners have placed reliance upon a demarcation report which is a duly exhibited document and stands appended with the petition as Annexure PW-3/A. The grievance of the petitioners is that on 07.01.2022, learned Trial Court returned adverse findings on this exhibited document during the pendency of the trial. Thereafter, when an application was filed by the predecessor of the petitioners under Order 26, Rule 9 of the Civil Procedure Code for the demarcation of the suit land on the ground that the same was necessitated by the fact that the Court had observed in its order dated 07.01.2022, that the demarcation report being relied upon by the petitioners was bad in law, the said application filed by the predecessor of the petitioners stood rejected by the learned Trial Court vide order dated 06.06.2022, by recording in the order that as a demarcation report was already placed on record, there was no need to have the land demarcated afresh. 3 3. Learned counsel for the petitioners has argued that the impugned orders demonstrate that there is a complete non- application of judicial mind by the learned Court below. He argued that firstly there was no occasion for the learned Trial Court to have in isolation gone into the veracity of the exhibited document and pass the order as was passed on 07.01.2022. He further submitted that assuming that the learned Court had the jurisdiction to do so, then, the application filed subsequently by the plaintiff under Order 26, Rule 9 for appointment of a Local Commissioner for the demarcation could not have been dismissed by recording in the order that the application was being dismissed as there already was a demarcation report on record. Accordingly, learned counsel prayed that the petition be allowed, the impugned orders be set aside and appropriate orders be passed by the Court either holding the earlier demarcation report to be a validly exhibited document or by ordering fresh demarcation of the suit land by appointment of a Court Commissioner. 4 4. Learned counsel for the respondent though tried to defend the orders passed by the learned Trial Court but he fairly stated that the appreciation of the exhibited document could have been done only at the time of the final hearing of the suit. 5. I have heard learned counsel for the parties and have also carefully gone through the orders under challenge. 6. The order that was passed by the learned Trial Court on 07.01.2022 reads as under:- “He has brought the requisitioned record whichupon perusal reveals that on 24.11.2011 the Collector, Sub-Division, Rohru has directed Tehsildar Rohru by appointing him the Local Commissioner to demarcate the suit property. The application as well as the demarcation report alongwith other documents is appended in the case file. However, no final order has been passed by the Collector after the receipt of the demarcation report as to whether any opportunity was granted to both the parties to present their objections and further the demarcation report was finalized and thereafter the file was consigned to the record room. Accordingly, the principle of natural justice has not been adhered to by Collector, whereby the demarcation report does not become a relevant and reliable piece of evidence. So, after making observations supra the file brought by the Reader, SDM Rohru is returned back. At this stage, the learned counsel for plaintiff moved an application under Order 26 Rule 9 and 10 readwith Section 75 of the CPC. Copy supplied. Be listed for filing reply on 21.02.2022.” 5 7. Thereafter, the order that was passed by the learned Trial Court in the application filed for the appointment of a Local Commissioner, in terms whereof, said application was rejected reads as under:- “I have heard learned counsel for both the parties and perused the case file carefully. It is apparent that suit for possession has been filed by the plaintiff against the defendant qua the specific Khasra number 716/1 claiming its exclusive ownership which has been encroached by the respondent/defendant as part of the stair case and house. The applicant has arrived at the conclusion that Khasra number 716/1 belongs to him on the basis of demarcation carried out by Tehsildar Rohru which has been sternly denied by the respondent/defendant. However, it is worth to mention that once the applicant has placed his cause of action on demarcation report seeking the vacant possession of specific Khasra numbers comprised in 716/1 which is part of Khasra number 716 carved out by virtue of Tatima by Tehsildar Rohru and demarcation report in this behalf exist on record. This Court cannot order demarcation for the same. The question here does not arise whether allowing the application would be assisting the applicant in calling evidence but rather it is necessary to note that applicant is well aware of his boundary as well as 6 factum of encroachment by the respondent on the basis of which he has sought relief for specific Khasra number 716/1. Here the burden lies upon him to establish the genuineness and validity of the demarcation report carried out by the Tehsildar Rohru which is foundation of the case in the present matter. So once the demarcation report is established as correct on record only then the relief sought by the applicant falls to its foundation since on one hand, he is asserting with definiteness that Khasra number 716/1 belongs to him which is encroached by the respondent and on the other hand, he is seeking assistance of the court by the present application to carve out the area of encroachment by the respondent. So the present application does not deserve to be allowed and accordingly dismissed. Be put up for arguments on 24.08.2022.” 8. This Court is of the considered view that there is perversity writ large in both the said orders, which call for interference under Article 227 of the Constitution of India. As it has not been disputed before this Court that the demarcation report Ex.P-3/A was a duly exhibited document, therefore, the relevance thereof from all perspective could have been gone into by the learned Trial Court only at the time of final adjudication of the Civil Suit and not before that. This Court reiterates that once 7 the document stood exhibited, then, there was no occasion for the Trial Court to have undertaken the exercise as was undertaken and is reflected in terms of order dated 07.01.2022. 9. Not only this, once the Trial Court vide order dated 07.01.2022 had returned adverse findings with regard to exhibit PW-3/A i.e., the demarcation report upon which reliance was being placed by the plaintiff, the application filed later on by the plaintiff, after the passing of order dated 07.01.2022 by the learned Trial Court, for the appointment of a Local Commissioner for the demarcation of the land could not have been rejected by the learned Trial Court by inter alia holding that as there already was a demarcation report on record, therefore, the burden to establish the genuine-ness and validity of said demarcation report was upon the petitioner and there was no occasion for the appointment of a Local Commissioner to demarcate the land. 10. While passing this order, learned Trial Court erred in not appreciating that as the said Court itself had tarnished Ex. PW-3/A in terms of its order dated 07.01.2022, nothing survived with the plaintiff so as to now establish the genuine-ness and validity thereof before the learned Trial Court and in these 8 circumstances as order dated 07.01.2022 was on record, interest of justice demanded that the prayer for appointment of a Local Commissioner to demarcate the suit land should have been allowed. 11. Be that as it may, in light of the observations made hereinabove, this Court concurs with the submissions made by learned counsel for the petitioners that the orders under challenge are perverse and not sustainable in the eyes of law and this petition is allowed by setting aside order dated 07.01.2022. As far as the subsequent order passed by the Court, in terms whereof, the application filed under Order 26 Rule 9 of the CPC has been rejected is concerned, this Court though is not upholding the findings returned therein, but this Court is also not ordering the appointment of any Local Commissioner for fresh demarcation of the suit land as this Court is of the considered view that when there is already a demarcation report on record as Ex.PW-3/A, the Trial Court is bound take the said demarcation report into consideration as an exhibited document and decide the case on its own merit. Ordered accordingly. Petition is allowed in above terms. It is clarified that as this Court 9 has set aside order dated 07.01.2022 findings returned therein shall not be taken into consideration by the learned Trial Court at all while considering the value of exhibit Ex.PW-3/A, which shall be duly considered by the learned Trial Court for the decision of the case. Parties through learned counsel are directed to appear before the learned Trial Court on 10.11.2025. In light of the fact that the suit relates to the year 2017, learned Trial Court shall make an endeavour to decide the Civil Suit as expeditiously as possible. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge October 09, 2025 (Vinod)