CHANAN SINGH Vs. VEK PARKASH GOEL

JUDGEMENT

(1.) THE plaintiff who sought permanent injunction regarding land measuring 7 Biswas comprised in Khata No. 540/926 Khasra No. 932/871 min situate within the estate of Dhuri as per Jamabandi for the year 1968- 69 and the mutation No. 12136 dated 23rd September, 1980 which was sanctioned in their favour and in the said mutation this Khasra number had been re-numbered as 7263/5932/872, lost their cause before the trial Court as the suit was dismissed by the Sub Judge 1st Class, Dhuri on 27th May, 1983. However, in appeal the judgment and decree passed by the trial Court was set aside and the permanent injunction sought for by them restraining the respondents from interfering with their possession in the suit property was granted. It is against this order of reversal passed by the first appellate Court that the defendants have come to this Court obviously asking for setting aside the order passed by the first appellate Court and to restore the one passed by the trial Court.

(2.) IT is the admitted position between the parties Jagdev Kaur and Dalip Kaur, that original owners of the property in dispute out of their holdings measuring 12 Bighas 1 Biswa, sold (sic) of land to defendants-appellants vide registered sale deed dated 6th January, 1970, the mutation whereof was sanctioned in their favour on 12th July, 1971. Out of the remaining land of the owners referred to above, plaintiffs or their predecessor-in-interests purchased 7 Biswas of land vide registered sale deed dated 25th March, 1974. It is with regard to this land measuring 7 Biswas that they had sought an injunction against the defendants appellants. Admittedly, the trial Court had appointed a Local Commissioner as this was perhaps the only right course to determine as to which party then was in possession in excess of its share i. e. the land sold to it. The report of the Local Commissioner was rejected by the trial Court on the ground that the same was not in accordance with the procedure prescribed. The plaintiffs filed objections to the Report dated 30. 4. 1983 but the same were not decided by the trial Court. The appellate Court has clearly observed in paragraph 12 of its judgment that it was incumbent upon the trial Court to decide the objections first and then to come to the conclusion as to whether the report was in order or not. The appellate Court relied upon a judgment in Parambath v. Vellangattu, 1983 N. O. C. 196, wherein it was held that if the Court is not satisfied with the report of the Local Commissioner, it should remit the same to the Commissioner to file fresh report after making local commission and that being so, the trial Court could not ignore the report of the Local Commissioner. It is rather strange that even after observing so, the appellate Court set aside the judgment of the trial Court and decreed the suit.

(3.) THE facts of this case reveal that the controversy between the parties could be best decided by appointment of a Local Commissioner. The total land owned by the original landowners was known and it was also known and, in fact, admitted by the parties that whereas defendants had purchased 3 Bighas of land vide sale deed dated 6th January, 1970, the plaintiffs had purchased land measuring 7 Biswas vide sale deed dated 25th July, 1974. The sum total of land purchased by the plaintiffs and defendants did not exceed the land owned by Jagdev Kaur and Dalip Kaur. It could, thus, easily be ascertained as to which party was in excess possession, if any, and once that finding was arrived, the relief could be granted or denied to the plaintiffs. It is true that the parties are in litigation since 1981 and a period of 13 years have gone by but this case can be best decided by appointment of fresh Local Commissioner who should be ordered to specify the land in possession of the respective parties and the owners, if necessary. There is thus no choice left with this Court but for to set aside the judgments of both the Courts and remit the case to the trial Court for deciding the matter afresh after appointing a fresh Local Commissioner, to have his report on the crucial issue as also alter deciding objections, if any, that might be filed against the report of the Local Commissioner to decide the matter. Parties through their counsel are directed to appear before the trial Court on 7th July, 1994.