BHINDRO DEVI Vs. SURAT SINGH

JUDGEMENT

(1.) By way of this petition filed under Article 227 of the Constitution of India, the petitioner has challenged order dated 31.1.2014 passed by the Court of learned Civil Judge (Jr. Division), Court No.1, Una, in Execution Petition No. 7 of 2005 whereby an application filed by present petitioner under Order 26 Rule 9 read with Section 151 of CPC for appointment of a revenue expert as a Local Commissioner to visit the spot and report about alleged encroachments made by the JD over the suit land comprised in Khasra Nos. 1163 and 2078/1153 situated at Upmohal Lamia, Mohal Behdala stands rejected by the learned Executing Court.

(2.) A perusal of the impugned order demonstrates that learned Executing Court has dismissed the application by holding that a party has to stand on its own legs and has to prove its case by leading cogent and convincing independent evidence and the Court cannot create any evidence by appointing Local Commissioner. Learned Court below has also held that the present petitioner could have easily applied for demarcation to revenue authority as per the provisions of H.P. Land Revenue Act as revenue authorities have independent powers of demarcation under the said Act and no Court orders are required for the same.

(3.) I have heard learned counsel for the parties. In my considered view while passing the impugned order, learned Court below has erred in not appreciating that in order to meet the ends of justice and in order to do substantial justice between the parties the Court is not to take hyper technical view. In the impugned order, on one hand learned Court below has refused to allow the application on the ground that the Court cannot create evidence by appointing Local Commissioner and in the same breath the Learned Court below has also observed that the applicant could have had easily applied for demarcation from revenue authorities as per provisions of H.P. Land Revenue Act, as the said authorities had power to demarcate the land in issue. While dismissing the application so filed by the present petitioner under Order 26 Rule 9 read with Section 151 CPC, learned Executing Court erred in not appreciating that it was clearly mentioned in the application so filed by the present petitioner that the JD had made encroachments in the shape of wall and pillars over the suit land qua which decree stood passed in favour of the petitioner on 21.5.2004 and though the onus to prove encroachment was upon the decree holder but the said onus could not be discharged unless a revenue expert is appointed by the learned Executing Court whether respondent has encroached upon the suit land or not. Learned Executing Court also erred in not appreciating that in reply filed to the said application the JD had stated that he had carried out construction in the land which was owned and possessed by him much before the institution of the civil suit itself. In the backdrop of this factual controversy having been raised in the course of the execution of the decree, in my considered view learned Court below rather than dismissing the said application filed under Order 26 Rule 9 should have had allowed the same and directed the revenue expert to act as a Local Commissioner and submit his report about the alleged encroachments made by the JD after carrying out necessary demarcation. The report of the Local Commissioner would have had facilitated the learned Executing Court in deciding the execution petition and would have had assisted the learned Executing Court in imparting substantive justice.