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2026 DAILYLAW 16630 (HP)

Ramesh Kumar v. Om Prakash(deceased) through LRs

2026-03-24

Romesh Verma

body2026
JUDGMENT : Romesh Verma, J. The present appeal arises out of the judgment and decree as passed by learned District Judge, Kangra at Dharamshala, dated 24.02.2018, whereby the appeal as preferred by the appellants/plaintiffs was dismissed and the judgment and decree as passed by learned Civil Judge (Junior Division)-II, Kangra, District Kangra, H.P. was affirmed. 2. Brief facts of the case are that the present plaintiffs/appellants filed a suit for possession against the defendants/respondents. It was averred in the plaint that the land bearing Khata No.102 min, Khatauni No.160, Khasra No.691, area measuring 0-24-08 hectares, marlas Rs.1.34 paise situated at Mohal Rasuh, Mauza Kuthar, Tehsil and District Kangra, H.P. is entered in the ownership and possession of the plaintiffs as is clear from the entries contained in the column of possession of the jamabandi for the years 1990-91. The predecessor-in-interest of the defendants had suffered a decree for permanent prohibitory injunction in case No.79 of 1977 vide judgment and decree dated 16.05.1981. There was interference by the defendants and the said judgment and decree was put into execution by filing Petition No.18 of 1986. A Local Commissioner was appointed in the said execution who, after demarcating the suit land, found that the defendants are in unauthorized possession by way of construction vide report date 29.05.1991. The said execution petition for seeking action for breach of the decree passed against the defendants was dismissed for want of non-compliance of the order dated 23.05.1992. 3. It has been averred in the plaint that the defendants in November 1986 during the pendency of earlier proceedings, raised the construction over a part of suit land, which was detected and worked out by the Local Commissioner vide his report dated 29.05.1991 as per tatima and field book attached with the plaint. The said unauthorized possession has been worked out over the land in Khasra No.891/1 to the extent of an area measuring 0-00-10 hectares and in Khasra No.691/2 to the extent of an area measuring 0-00-07 hectares. Thus, the total land in unauthorized possession of the defendants is 0-00-17 hectares. The decree for possession by way of demolition of structure was sought from the learned Civil Judge (Junior Division)-II, Kangra, District Kangra, H.P. 4. The suit was contested by the defendants by filing a written statement raising preliminary objections regarding maintainability, cause of action etc. Thus, the total land in unauthorized possession of the defendants is 0-00-17 hectares. The decree for possession by way of demolition of structure was sought from the learned Civil Judge (Junior Division)-II, Kangra, District Kangra, H.P. 4. The suit was contested by the defendants by filing a written statement raising preliminary objections regarding maintainability, cause of action etc. On merits, it was averred in the written statement that the judgment and decree, which was passed against the defendants, was an ex-parte decree. It was further averred that the execution, which was filed by the plaintiffs, was dismissed. Since, the execution petition was not revived by the plaintiffs, they have got no cause of action against the present defendants. All the averments and the allegations as levelled in the plaint were refuted and the defendants prayed for dismissal of the suit. 5. The defendants had also preferred a counter claim seeking declaration to the effect that the entry of ownership in the name of the plaintiffs is not correct and the same is paper entry, which be declared null and void. 6. Learned trial framed issues on 23.11.1996 in the following manner: “1) Whether the plaintiffs are entitled to the possession of the suit land by demolition of structure, as prayed for? OPP. 2) Whether the plaintiffs have cause of action? OPP 3) Whether the plaintiffs have locus-standi? OPP 4) Whether the suit is not maintainable in the present form? OPD. 5) Whether the revenue entries in favour of the predecessor-in-interest of the plaintiffs are wrong, null and void, as alleged, if so, its effect? OPD. 6) Whether the suit is barred by limitation? OPD. 7) Whether the suit is bad for mis-joinder and non- joinder of necessary parties? OPD. 8) Whether the suit is barred under section 11 and order 2 Rule 2 CPC? OPD. 9) Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD. 9(a) Whether the plaintiffs were never inducted tenant over suit land by defendants and the predecessor- in-interest, if so, its effect? OPD. 9(b) Whether the defendants are entitled to decree by way of counter claim against the plaintiffs, as alleged? OPD. 9(c) Whether the counter claim is not maintainable, as alleged? OPP. 9(d) Whether the counter claimants have no cause of action, as alleged? OPP. OPD. 9(b) Whether the defendants are entitled to decree by way of counter claim against the plaintiffs, as alleged? OPD. 9(c) Whether the counter claim is not maintainable, as alleged? OPP. 9(d) Whether the counter claimants have no cause of action, as alleged? OPP. 9(e) Whether the counter claim is not properly valued for the purpose of court lee and jurisdiction? OPP 10. Relief.” 7. It will be pertinent to mention that during the pendency of the suit, the plaintiffs/appellants filed an application under Order 29 Rule 9 of CPC for appointment of Local Commissioner for determination of issue No.1. Learned trial Court, vide its order dated 20.03.2014, dismissed the application for appointment of Local Commissioner. Learned trial Court vide its judgment and decree dated 29.04.2014, dismissed the suit and further the counter claim preferred by the defendants was also ordered to be dismissed. 8. Feeling dissatisfied, the plaintiffs/appellants preferred an appeal in the Court of learned District Judge, Kangra at Dharamshala on 03.07.3014. The defendants accepted the findings as passed in the counter claim as they did not assail the findings of dismissal of their counter claim. The learned first appellate Court vide its judgment and decree dated 24.02.2018, dismissed the appeal preferred by the plaintiffs. 9. Still feeling aggrieved, the plaintiffs/appellants have approached this Court by way of regular second appeal assailing the impugned judgments and decrees as passed by learned Courts below. 10. The appeal was admitted by this Court on 28.11.2018 on the following substantial questions of law: “1. Whether both the learned Courts below have failed to take note of the fact that the earlier decree passed in favour of the appellants/plaintiffs in Civil Suit No. 79/1977 decreed on 16.5.1981 and the report of the local commissioner dated 29.5.1991, has a bearing upon the subsequent suit? 2. Whether the learned Courts below have misinterpreted, misconstrued and misread the evidence on record, be it ocular documentary?” 11. It is contended by learned counsel for the appellants that the suit filed by the plaintiffs for grant of possession on the basis of title ought to have been decreed in view of report of the Local Commissioner, who was appointed in the earlier proceedings. It is contended by learned counsel for the appellants that the suit filed by the plaintiffs for grant of possession on the basis of title ought to have been decreed in view of report of the Local Commissioner, who was appointed in the earlier proceedings. He submits that there is a categorical finding in the report of the Local Commissioner that the defendants have raised construction over Khasra No.691/1, measuring an area 0-00-10 hectares and Khasra No.691/2 measuring area 0-00-07 hectares. Thus, the total land found in unauthorized possession of the defendants is 0-00-17 hectares. 12. On the other hand, Mr. Ajay Kumar, learned Senior counsel, duly assisted by Mr. Rohit, Advocate, has submitted that there are concurrent findings of fact by the learned Courts below, which do not call for any interference and the present regular second appeal deserves to be rejected. 13. I have heard learned counsel for the parties and scanned the record at length. 14. The precise case of the plaintiffs before this Court is that they have filed a suit for possession on the basis of title and report of the Local Commissioner, who was appointed during the pendency of previous proceedings. Learned counsel for the plaintiffs has relied upon the report of the Local Commissioner Ext. PW-2/A, whereby it has been depicted that the present defendants have encroached upon the suit land owned by the plaintiffs. Learned trial Court, while passing the judgment and decree, has discussed the report of the Local Commissioner in paras 15 to 18. It has been held by the learned trial Court that the Local Commissioner appointed in the Execution Petition No.18 of 1986 had not conducted the demarcation as per Rules and instructions laid down for the purpose. It was held that, in the opinion of the court, the Local Commissioner had not carried out the demarcation in accordance with the instructions meant for carrying out the demarcation. Therefore, the demarcation report Ext. PW-2/A cannot be relied upon. Further, it has been held that the plaintiffs have failed to prove the identity of the land in question. As such, the allegation of the plaintiffs that the defendants have encroached upon the suit land does not hold good. 15. Therefore, the demarcation report Ext. PW-2/A cannot be relied upon. Further, it has been held that the plaintiffs have failed to prove the identity of the land in question. As such, the allegation of the plaintiffs that the defendants have encroached upon the suit land does not hold good. 15. Learned first appellate Court in paras 12 and 13 of its judgment and decree also on the similar lines has ignored the report of the Local Commissioner on the ground that same is not in conformity with the provisions of law. Learned first appellate Court, while returning the findings, has come to the conclusion that it was obligatory upon the local Commissioner to have fixed three pucca points and to have recorded the statements of parties as to their satisfaction regarding the fixation of pucca points. Further, it has been held that the Local Commissioner started measurements from railway station side, but he has further clarified that he did not remember exactly. Learned first appellate Court has come to the conclusion that taking into account the testimony of Local Commissioner, it is clear that he was not sure form where he started measurement and it is also not clear whether the measurement was started from any pucca point. Learned first appellate has come to the conclusion that in view of testimony of PW-2, Amar Chand, Local Commissioner, it cannot be held that a proper and legal measurement was carried out by him. Hence, the report Ext. PW-2/A and Tatima Ext. PW-2/B cannot be termed as legal evidence and the same are liable to be rejected. 15. It is contended by learned counsel for the appellants that whatever was within the reach of the present appellants, they have done and the Local Commissioner, who was appointed at the time of execution petition, has clearly pointed out that the defendants have encroached over the suit land and both the Courts have non-suited him on the ground that since the demarcation is not proper and in conflict with the provisions of the instructions as laid down by Financial Commissioner(Revenue), H.P., the report of the Local Commissioner has been brushed aside by the learned Courts below. It has further been submitted that in case the Courts were of the opinion that the Local Commissioner has not carried out the demarcation in consonance with the provisions of law, in that event, it was incumbent upon the learned Courts below to have appointed the Local Commissioner afresh. Learned counsel further submits that before the learned trial Court, the plaintiffs had filed an application for appointment of local Commissioner, however, the same was ordered to be dismissed. 16. Section 106 of H.P. Land Revenue Act reads as under: “106. Powers of Financial Commissioner to make rules for demarcation of boundaries and erection of survey marks.-(1) The Financial Commissioner may make rules as to the manner in which the boundaries of all or any estates in any local area are to be demarcated and as to the survey-marks to be erected within those estates. (2) Rules under this section may prescribe, among other matters form of survey-marks and the material to be used in their construction. 17. Section 107 of the Act reads as follows: “107. Power of Revenue Officers to define boundaries.- (1) A Revenue Officer may, for the purpose of framing any record or making any assessment under this Act or on the application of any person interested, 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 surveymarks to be erected or repaired. (2) In defining the limits of any land under sub-section (1) the Revenue Officer may, cause survey-marks to be erected on any boundary already determined by, or by order of any Court, Revenue Officer or Forest Settlement Officer, or restore any survey-marks already set up by, or by order of any Court or any such Officer. (3) The Revenue Officer shall define the limits of boundaries mentioned in sub-section (1) by conducting measurements on the basis of the method of surveys used during the last settlement that is by triangulation system or square system or electronic total station system of measurement etc. as the case may be. (4) The Revenue Officer shall decide the proceeding of defining the boundaries within two months from the date of filing of application thereof: Provided that for the reasons to be recorded in writing the time period may be extended by one month. as the case may be. (4) The Revenue Officer shall decide the proceeding of defining the boundaries within two months from the date of filing of application thereof: Provided that for the reasons to be recorded in writing the time period may be extended by one month. (5) If the Revenue officer fails to decide the case within the extended period, the proceedings shall not become invalid for final adjudication merely on the ground of lapse of the stipulated period. However the Revenue officer shall submit a report in the manner as may be prescribed citing reasons for such delay to the officer under whose control he is subjected to and after considering the report and examining the record, if the Controlling Officer is satisfied that there were valid and genuine reasons for delay in deciding the case he may accept the report with no further action. In case the Controlling Officer is not satisfied with the report, he shall submit his observations to the Government for such action and in such manner as may be prescribed against the erring officer. (6) If the Revenue Officer fails to submit a report required under sub-section (5), he shall be liable for an action under relevant service rules applicable to such officer after following the procedure. (7) If all the interested parties have agreed to and accepted the limits defined by the Revenue officer under sub-section (1) and objections have not been raised by any of the interested party during the proceedings, no appeal shall lie against the order of the Revenue Officer in such proceedings.” 18. Chapter 10 of H.P. Land Record Manual deals with the demarcation of boundaries. Section 10.1 deals with powers of Revenue Officer under Section 107 of the H.P. Land Revenue Act. Section 102 deals with the instructions issued by Financial Commissioner (Revenue), Himachal Pradesh. 19. This Court in Kamal Dev and another vs. Hans Raj, decided on 5th October, 1999, AIR 2000 HP 130 , held as under:- “13. Be it stated that demarcation of boundaries of a holding, field or any other portion of an estate is a statutory function of quasi-judicial nature of the Revenue Officer and the above instructions, in view of their adoption for Himachal Pradesh, evidently to fulfil the requirements of Section 106 of the H.P. Land Revenue Act, have statutory sanction. Be it stated that demarcation of boundaries of a holding, field or any other portion of an estate is a statutory function of quasi-judicial nature of the Revenue Officer and the above instructions, in view of their adoption for Himachal Pradesh, evidently to fulfil the requirements of Section 106 of the H.P. Land Revenue Act, have statutory sanction. Therefore, it is necessary for a Revenue Officer to discharge his function of demarcation of land in accordance with the said instructions. 14. A Division Bench of this Court while dealing with the necessity of compliance of these Instructions in case State of H.P. v. Laxmi Nand (1992) 2 ShimLC 307 has held as under : “16.Demarcation of boundaries of any holding, field or any portion of any other estate u/s 107 of the Act is otherwise a statutory function of quasi-judicial nature of the Revenue Officer, as held in Radha Soami Satsang Beas through Radha Soami Satsang Beas Vs. State of Himachal Pradesh and Another, Since the function to demarcate the limits of any holding or field is a statutory function of a quasi-Judicial nature, it is, therefore, absolutely necessary for the Revenue Officer, while carrying out demarcation, to perform the function in accordance with the instructions and guidelines, which have been issued by the Financial Commissioner under the powers contained in Section 106 of the Act meticulously without any deviation therefrom, since it also affects valuable rights of the estate right holders. The report of demarcation on the face of it must show that all precautions which are required to be taken as per the instructions were taken, so as to enable the Court, when the report comes before it to follow the method adopted by the Revenue Officer while carrying out demarcation and to find out that no mistake has been committed in doing so, so as to avoid the possibility of any error having crept in." 15. Thus, the compliance of these instructions regarding demarcation of land has been held to be absolutely essential. The ultimate object of these instructions, no doubt, is to lend credibility to the correctness of the demarcation.” 20. Learned counsel for the plaintiffs has relied upon the judgment of Hon’ble Apex Court in Ram Lal and others vs Salig Ram and others in Civil Appeal No.8285 of 2009, wherein it has been held Hon’ble Supreme Court as under: “17. The ultimate object of these instructions, no doubt, is to lend credibility to the correctness of the demarcation.” 20. Learned counsel for the plaintiffs has relied upon the judgment of Hon’ble Apex Court in Ram Lal and others vs Salig Ram and others in Civil Appeal No.8285 of 2009, wherein it has been held Hon’ble Supreme Court as under: “17. The fact that the Local Commissioner’s report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner’s report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner’s report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner’s report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioner’s report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record. 18. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioner’s report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record. 18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any. 19. Accordingly, this appeal is allowed in the manner that the judgment and decree dated 06.11.2007 in RSA No. 260 of 1995 is set aside but the said appeal is disposed of by setting aside the judgment and decree of the subordinate Courts; and the suit filed by the plaintiffs-appellants is restored for reconsideration by the Trial Court keeping in view the observations and requirements foregoing.” 21. Learned counsel for the appellants/plaintiffs strenuously argued that the learned Courts below have wrongly rejected the suit filed by the plaintiffs merely on the ground that the report of Local Commissioner is not in consonance with the provisions of the Land Revenue Act. The Hon’ble Apex Court in the case of Ram Lal (supra) has come to the conclusion that if the Local Commissioner’s report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. In the present case also, the plaintiffs are alleging encroachment on the suit land by the defendants. In order to substantiate their case, the plaintiff placed on record a copy of report of the Local Commissioner, which has been discarded by the learned Courts below. In the present case also, the plaintiffs are alleging encroachment on the suit land by the defendants. In order to substantiate their case, the plaintiff placed on record a copy of report of the Local Commissioner, which has been discarded by the learned Courts below. In view of dictum of law, as laid down by the Hon’ble Apex Court, if the learned Courts below were of the opinion that the report of the Local Commissioner is not as per the mandate of the instructions, in that event, the suit should not have been dismissed in its entirety and proper course would have been to issue a fresh commission for adjudicating the point in controversy. 22. Consequently, the appeal is allowed, judgments and decrees as passed by the learned Courts below are set aside. The case is remanded back to learned trial Court with a direction to decide the suit afresh on the issues originally framed and after obtaining a fresh report from the local Commissioner, an opportunity shall be afforded to the parties to submit their objections, and the trial Court shall proceed with the matter in accordance with the law. The parties, through their respective counsel, shall appear before the learned trial Court on 20.04.2026. 23. This Court hopes and trusts that the trial Court shall issue a fresh commission immediately and, after examining the objections, if any, to the Commission report, dispose of the suit afresh expeditiously preferably within six months from the date of the appearance of the parties. 24. Pending application(s), if any, shall also stand disposed of.