RAM PARKASH Vs. SUDESH KUMARI

JUDGEMENT

(1.) The present petition is maintained by the legal representatives (hereinafter referred to as "the petitioners") of Shri Ram Parkash, who was the original defendant before the learned Trial Court (since dead) under Article 227 of the Constitution of India against order dated 08.05.2019, passed by learned Civil Judge-cum-Judicial Magistrate 1st Class, Barsar, District Hamirpur, H.P., whereby the objections filed by the petitioner were rejected and the demarcation report of Local Commissioner was confirmed.

(2.) As per the petitioners, the respondent herein maintained a suit against Shri Ram Parkash, who was the original defendant, in the learned Trial Court under Specific Relief Act, for fixation of boundary through demarcation and for permanent prohibitory injunction restraining the defendant from raising any construction or changing the nature of land comprising in Khata No. 199, Khatauni No. 232, Khasra No. 1281, 1282, Kita 2, measuring 14 marlas situated in Tika Barsar, Tappa Pangran, Tehsil Barsar, District Hamirpur, H.P. (hereinafter referred to as "the suit land"). The petitioners further averred that during the pendency of the suit he moved an application under Order 26, Rule 9 CPC for appointment of Local Commissioner and in consequence thereto the learned Trial Court appointed a retired Tehsildar, as Local Commissioner to demarcate the land. He conducted the demarcation of the land and submitted his report in the learned Court below alongwith the statement of Smt. Sudesh Kumari (respondent herein). Subsequently, objectors filed objections to the said demarcation report alleging that no valid service was effected upon the objectors and no signatures were obtained on the notices, so service of notices upon the objectors is not valid. It was further contended that on 07.05.2018 Local Commissioner reached the spot and he did not record the statements of objectors qua the pucca bannas on the spot. Instead, the Local Commissioner reported in his report that pucca banna was located i.e. Khasra No. 1279, actually Khasra No. 1279 was not a pucca banna/fixed point. As per the objectors, on Khasra No. 1279 there is a building, so the area cannot be measured. It was reported by the Local Commissioner that there are buildings on the spot and no vacant space is there, so jareb (measurement instrument) could not be used, so pucca banna was not located on the spot. The objectors further averred that Khasra No. 1278 had been partitioned among the share-holders and objectors have been allotted Khasra No. 1278/1, measuring 0K-6 Marlas, but the Local Commissioner did not measure Khasra No. 1278/1, measuring 0k-06 Marlas on the spot, as during the partition, tatima was deducted by the then Revenue Field Staff on the spot, but the Local Commissioner did not locate the boundaries of Khasra No. 1278/1 on the spot, where the objectors have constructed their shops and Khasra No. 1278/1 is touching with the old road which goes to the Veterinary hospital on the spot and area of Khasras No. 1281, 1282, is touching National Highway, upper side of Khasra No. 1278/1, so there is no boundary touching old road of the suit land, i.e., Khasras No. 1281 and 1282. The objectors averred that there is no middle maind existing on Khasras No. 1279 and 1280, but surprisingly the Local Commissioner reported that he took 10 Karams from middle line of Khasras No. 1279 and 1280. The Local Commissioner did not record the statements of the parties when he located points AB. As per the objectors, the entire process of the demarcation by the Local Commissioner is against the law. The Local Commissioner failed to ascertain the three pucca points and he himself mentioned in his report that only one point was fixed and other points, i.e., B and C could not be fixed due to buildings on the spot. The Local Commissioner, in order to benefit the plaintiff (respondent herein) wrongly depicted the encroachment upon Khasra No. 1281, the encroachment which had been shown in Khasra No. 1278, i.e., Khasra No. 1278/1, measuring 0k-6 Marlas, where the objectors have constructed their shops in the lower side touching with old road on the spot. As per the objectors karu-kan of Khasras No. 1279, 1280 to the eastern side and southern sides are misprint in Aks Musabi in the year 1986-87 and not readable, so how the Local Commissioner have measured Khasra No. 1279 and line of Khasras No. 1279, 1280, 1281, 1282, 1283, 1284, 1285 and 1286, which are touching the line of Khasras No. 1304 and 1295 are not readable, then how the Local Commissioner have measured the land on the spot. With the above averments the petitioners prays that the petition be allowed and order dated 0-8.05.2019, passed by learned Court below in CMA No. 411 of 2018 in Civil suit No. 102 of 2005, may be quashed and set aside.

(3.) The respondent herein refuted the contentions of the objectors by filing reply in the learned Trial Court. The respondent contended that the demarcation was conducted as per the settled procedure. It was further averred that upon the application of the objector Local Commissioner was appointed, so the applicant/objector had full knowledge about the visit of the Local Commissioner. As per the respondent, some of the area of Khasra No. 1279 on the spot is vacant, so the measurement was done in presence of Shri Santosh Kumar, one of the petitioners herein. The middle line of Khasras No. 1279 and 1280 was measured and found 10 karams and the parties admitted its correctness as pucca banna. The respondent denied that Khasra No. 1278 was demarcated inter se the co-sharers. The respondent has further averred that the Local Commissioner demarcated the suit land and shop of the objectors, to the extent of 0K-2 marlas was found existing on Khasra No. 1282/1, thus tatima was prepared. The respondent admitted that Khasras No. 1281 and 1281 touch the National Highway. It is averred that the objector has forcibly encroached over the suit land during the pendency of the suit. As per the respondent, the Local Commissioner took middle line of Khasras No. 1279 and 1280 as pucca point. The Local Commissioner did not show any encroachment over Khasra No. 1281 and encroachment was found over Khasra No. 1281/1. It is further contended that the demarcation was carried out by the Local Commissioner is in accordance with law. With the above precise contentions, in reply to the objections filed against the report of the Local Commissioner, the respondent sought dismissal of the objections so filed by the objector.