BISH RAM SON OF SH. SHOBHA RAM, RESIDENT OF VILLAGE KUNDLA, POST OFFICE OACHGHAT, TEHSIL AND DISTRICT SOLAN, H.P. Vs. HET RAM SON OF LATE SH. BHOPU AND ORS.

JUDGEMENT

(1.) ALL the respondents are served and have been proceeded against ex -parte by this Court vide order dated 15.12.2011. This petition has been preferred by the plaintiff against the order passed by learned Civil Judge (Senior Division), Solan rejecting the application instituted by the plaintiff praying for appointment of the commissioner under Order 26, Rule 9 of the Code of Civil Procedure to ascertain/demarcate the land in dispute. The plaintiff instituted the suit out of which these proceedings arise, praying for a permanent and mandatory injunction against the defendant/respondent on basis of title. Apart from the other evidence on record, there is demarcation report Ex. PW4/B which was relied upon by the plaintiff in support of his case. Learned trial Court dealing with this aspect rejected the report on the ground that the Kanungo, who appeared as PW4 had not carried out the demarcation according to the instructions issued by the Financial Commissioner and in these circumstances, the so called encroachment indicated in the report could not be accepted. The suit of the plaintiff was dismissed and the appeal was preferred before the learned District judge as all the issues were decided against the plaintiff. An application under Section 151 of the Code of Civil Procedure was filed with the prayer that the case be remanded to the learned trial Court as respondents No. 2 had died on 15.4.2003 during the pendency of the civil suit and his legal representatives are required to be impleaded. The learned Appellate Court holds that from the record it was found that an application under Order 22, Rules 4 and 9 of the Code of Civil Procedure was in fact filed before the learned trial Court but has not been dealt with, therefore, requires to be disposed of in accordance with law. In these circumstances, the judgment and decree was set aside and the case was remanded back to the learned trial court with a direction to decide the suit afresh in accordance with law after granting opportunity to the plaintiff to take such other and further steps and to allow the defendants to file objections, if any.

(2.) ON remand the present application was filed. I find from the order of the learned trial Court that though the principle of law urged that the Court will not act as an active participant in assisting any party to collect evidence but nonetheless, the application was rejected on grounds which are not tenable. The learned trial Court did not take into consideration the decision of this Court in Bali Ram versus Mela Ram and another, : AIR 2003, H.P. 87 holding:

(3.) IN Haryana Waqf Board versus Shanti Sarup and others : (2008)8 SCC 671 the Supreme Court reaffirmed this principle holding: