GEETA CHOPRA Vs. KULWANT SINGH BAKSHI

JUDGEMENT

(1.) THE petitioner herein instituted a suit against the respondent herein before the learned Civil Judge, Sr. Division, Solan. The suit as instituted by the petitioner herein against the defendant -respondent herein was for compensation arising from the purported act of the respondent herein constituted in his resorting to unscientifically excavate his land adjoining to the land of the plaintiff/petitioner herein having caused damage to it. Besides a relief of injunction was also claimed against the respondent/defendant before the learned trial Court. However, the respondent -defendant before the learned trial Court had filed a counter claim canvassing therein that the petitioner herein plaintiff before the learned trial Court had encroached upon his land. Succor to the aforesaid fact of the petitioner herein having encroached upon the land of the counter claimant/respondent herein defendant before the learned trial Court, was embedded in the factum of the demarcation of the suit land having been carried out by the Field Kanungo.

(2.) THE learned Deputy Commissioner, Solan while deciding a complaint instituted before him by the plaintiff/petitioner herein against the defendant respondent herein arising from the latter having contravened the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act had allowed the complaint and ordered for vesting in the State of Himachal Pradesh the land of the counter claimant/defendant/respondent herein. The counter claimant/defendant/respondent stood aggrieved by the rendition of the Deputy Commissioner, Solan, hence, proceeded to assail it by filing an appeal before the Divisional Commissioner, Shimla. The Divisional Commissioner, Shimla accepted the appeal preferred before him by the counter claimant/defendant/ respondent herein. Consequently, the order of the Deputy Commissioner, Solan directing the vesting in the State of Himachal Pradesh the land of the counter claimant/defendant/respondent herein stood quashed and set -aside. The plaintiff/petitioner herein was aggrieved by the rendition aforesaid of the Divisional Commissioner, Shimla, hence, she took to assail it by filing a revision before the Financial Commissioner (Appeals), H.P., who accepted the revision. In sequel, the rendition of the Deputy Commissioner, Solan ordering the vestment in the State of Himachal Pradesh the land of the counter claimant/defendant/ respondent herein, stood affirmed. The rendition of the Financial Commissioner (Appeals) stands as stated at bar by the learned counsel for the counter claimant/respondent assailed at the instance of the counter claimant/defendant/respondent herein before this Court by his instituting a writ petition before it. The petitioner herein had during the pendency of the suit before the learned trial Court concerted to, on the strength of the rendition of the learned Financial Commissioner (Appeals), who affirmed the rendition of the Deputy Commissioner, Solan whereby the latter had ordered the vestment in the State of Himachal Pradesh the land of the counter claimant/defendant/respondent herein, oust the locus of the defendant/counter claimant to espouse in his counter claim besides to seek a decree from the Court of the learned Civil Judge Sr. Division, Solan, of possession of his land encroached upon by the plaintiff/petitioner herein besides a decree of mandatory injunction. The aforesaid manner of ouster of the locus of the counter claimant/ defendant/respondent herein stood concerted by the petitioner herein by her proceeding to file an application under Section 151 CPC before the learned Civil Judge, Sr. Division, Solan, canvassing therein that the rendition of the learned Financial Commissioner (Appeals) which ordered for the vestment in the State of Himachal Pradesh of the land of the counter claimant/defendant/respondent herein be permitted to be placed on record, its being both essential and imperative to succor her contest to the locus of the defendant/counter claimant/respondent herein to press for the reliefs agitated by him in his counter claim besides its adduction being essential to clinch the aforesaid facet. The learned Civil Judge, Sr. Division, Solan, however, did not permit the petitioner herein to place it on record. The learned Civil Judge, Sr. Division, Solan, having not permitted the petitioner herein to place it on record, appears not to have misdirected itself in law or committed any grave illegality especially in the face of the counter claimant/defendant/respondent, as submitted by the learned counsel for the counter claimant/respondent herein, having assailed the rendition of the Financial Commissioner (Appeals) ordering the vestment in the State of H.P. of his land arising from the purported infraction on his behalf of the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, by his preferring a writ petition before this Court. Necessarily then given the pendency of a writ petition at the instance of the respondent herein against the afore referred rendition of the Financial Commissioner (Appeals) any reliance at this stage upon the rendition of the Financial Commissioner (Appeals) with pronouncements therein aforesaid was misplaced, naturally when hence given the pendency of the writ petition before this Court assailing its findings and conclusions it was bereft of any conclusiveness or finality. In aftermath, the fact of its not acquiring any conclusiveness besides finality in clinching the factum of ousting the locus of the counter claim, any reliance thereupon was inchoate while it not possessing probative vigour. Moreover, naturally its adduction at this stage was not only unnecessary besides unessential for determining the facet aforesaid. Moreover, the plaintiff before the learned trial Court had sought to oust the counter claimant respondent herein from claiming a decree of possession of his land purportedly encroached upon by the plaintiff/petitioner herein, which decree of possession was concerted to be sustained besides being viewed with sustenance on the factum of a demarcation having been carried out by the Field Kanungo. However, when during pendency of the suit, the demarcation of the suit land carried out by the Field Kanungo who had unearthed the factum of the plaintiff/petitioner herein having encroached upon the land of the defendant counter -claimant stood impugned before the Assistant Collector 1st Grade, Solan, who accepted the appeal preferred before him by the petitioner herein against the report of the Field Kanungo. Moreover, when the defendant while standing aggrieved by the order of the Assistant Collector 1st Grade instituted an appeal before the Collector Sub Division, Solan, who dismissed the appeal preferred before him by the counter claimant respondent herein. Thereupon counter claimant preferred a revision before the Divisional Commissioner, who accepted the revision petition and forwarded it for affirmation to the Financial Commissioner (Appeals), H.P. However, the Financial Commissioner (Appeals) did not affirm the decision arrived at by the Divisional Commissioner, Shimla. A perusal of the order of the Financial Commissioner (Appeals) discloses that the reason which prevailed upon him for not affirming the rendition of the Divisional Commissioner, Shimla, is founded upon the factum of Financial Commissioner (Appeals) having affirmed the order of the Deputy Commissioner, Solan, whereby the latter ordered the vesting in the State of Himachal Pradesh the land of the counter claimant/respondent herein. Nonetheless, when the order of the Financial Commissioner (Appeals) ordering the vesting in the State of Himachal Pradesh of the land of the respondent herein has been as submitted by the learned counsel for the counter claimant/respondent herein to have come to be assailed by the respondent herein before this Court by his filing a Civil Writ Petition and when the said factum has been constituted in the order of the Financial Commissioner (Appeals) to constrain him to not accept the report of the Field Kanungo who had carried out the demarcation of the suit land and had unearthed the factum therein of the land of the defendant/counter claimant having stood encroached upon by the plaintiff/petitioner herein which foisted a ground for the former to claim a decree of possession besides a decree of mandatory injunction against the plaintiff/petitioner herein, necessarily when the said report of the Field Kanungo cannot for reasons aforesaid be concluded to acquire any finality or conclusiveness any reliance thereupon by the petitioner herein to oust the locus of the defendant counter claimant to claim relief of possession besides of mandatory injunction cannot at this stage be concluded to be either having any probative sinew nor its adduction at this stage being either just besides essential nor imperative to succor the contention of the plaintiff petitioner herein that its placing on record would dislodge the claim ventilated by the counter claimant respondent before the Civil Judge, Sr. Division, Solan. Accordingly, I find no merit in the petition, which is dismissed. No costs.