MOHINDER KUMAR Vs. SITA DEVI

JUDGEMENT

(1.) The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioner/defendant (hereinafter to be called as "the defendant"), against the order dated 04.05.2018, passed by learned Civil Judge (Jr. Div.), Court No. 6, Shimla, H.P., whereby an application under Order 26, Rule 9 CPC, filed by the defendant for appointment of a Local Commissioner has been dismissed.

(2.) Briefly stating facts giving rise to the present petition are that the respondent-plaintiff (hereinafter to be called as "the plaintiff") filed a Suit for permanent prohibitory injunction and for mandatory injunction, wherein the plaintiff has claimed the right of passage through the stairs which passes through defendant's land and garden, comprised in Khasra No. 296 and then joins the main road, situated at Bhagwati Nagar, Tehsil and District Shimla. The plaintiff has claimed the passage from the said stairs to the main road, which has been constructed by the defendant through Khasra No. 296 on the basis that the stairs have been constructed on the common land, as no partition has taken place amongst the co-sharers. It has been further averred that there was no common path ever constructed on common land, nor it was ever a passage shown in the revenue papers. In April, 2013, the defendant carried out private demarcation of his land, comprised in Khasra No. 296, in which the plaintiff was also associated being a necessary party. In said demarcation, the report was submitted by the revenue officials on 06.01.2017, wherein it has been stated that the stairs in question have been constructed by the defendant on Khasra No. 296. Feeling aggrieved by the said demarcation report, the defendant filed an appeal before Sub Divisional Magistrate (Rural), Shimla, who set aside the order dated 06.01.2014, passed by Assistant Collector 1st Grade, Shimla, on the ground that the instructions given by the Financial Commissioner, under Section 107 of the H.P. Land Revenue Act, i.e. Guidelines of demarcation are not followed by the lower revenue authority. As per the defendant, present boundary dispute can only be decided through the revenue agency by demarcating the plot, building and stairs in question, as such, a Local Commissioner is required to be appointed. Hence the present application.

(3.) In reply to the application, the plaintiff has taken preliminary objection qua maintainability. On merits, it has been averred that the land in question is still unpartitioned amongst the co-sharers and there is no boundary dispute. It has been further averred that at the time when the plot was purchased by the plaintiff there existed a common path from the main road to the plots, comprised in Khata/Khatauni No. 74/106, Khasra No. 512, situated at Muhal Vihar, Pargana Jajhot, Tehsil and District Shimla, H.P. The plaintiff used the said path to only access the plot and has been using the same since the purchase of plot by her. The land over which the defendant has constructed his house, has been assigned Khasra No. 296 and the land on which the plaintiff constructed her house was assigned Khasra No. 297, the common passage which existed on the spot in old Khasra No. 512, after the settlement operation is now lead to Khasra No. 297. The defendant after filing of the present suit entered into an agreement with the plaintiff, wherein existence of old common path and construction of stairs over the said common paths has been admitted by the defendant. Lastly, it has been averred that prejudice shall be caused to the plaintiff, if the present application is allowed and dismissal of the application has been prayed.