3/25/24, 2:08 PM India Law Library Web Version

India Law Library Web Version

This Product is Licensed to : Mr. Anand Sharma, Advocate

Docid # IndLawLib/1300790
(2018) 2 CivCC 802 : (2018) LatestHLJ(HP) 302
HIMACHAL PRADESH HIGH COURT
SINGLE BENCH

PURAN DASSI — Appellant

Vs.

SURESH KUMAR SHARMA — Respondent

( Before : Mr. Tarlok Singh Chauhan, J. )
FAO No. 551 of 2017
Decided on : 08-01-2018

Civil Procedure Code, 1908—Order 26, Rule 9—Appointment of Local

Commissioner—Parties are neighbours—Dispute regarding identification of
boundary between adjacent land owners certainly a dispute of Civil nature and
not barred either expressly or impliedly—First Appellate Court remanded
back case to trial Court to appoint local commissioner, invite objections and
decide afresh—No merit in appeal—Appeal dismissed.
Counsel for Appearing Parties
Mr. H.R. Bhardwaj, Advocate, for the Appellant; Mr. Y.P. Sood, Advocate, for the Respondent
Cases Referred

E. Achuthan Nair Vs. P. Narayanan Nair, AIR 1987 SC 2137

Gurunath Manohar Pavaskar Vs. Nagesh Siddappa Navalgund, (2007) 13 SCC 565
Haryana Waqf Baord Vs. Shanti Sarup, (2008) 8 SCC 671
Kavasji Jamsetji Vs. Hormasji Nassarvanjishet, (1905) ILR 29 Bom 73
Wake Vs. Conyers, (1759) 1 Wh and TLC 7th Edn. 170
Po Gyi Vs. Maung Paw, 12 I.C. 347
Rayappan Vs. Yagappan Nadar, (1958) Ker LT 955
Varala Ramachandra Reddy Vs. Mekala Yedi Reddy, (2010) 4 CCC 453 AP

JUDGMENT/ORDER

Tarlok Singh Chauhan, J. - This appeal is directed against the order passed by the learned
Additional District Judge, Kinnaur at Rampur Bushehar, H. P. , whereby he remanded the
appeal filed by the respondent herein to the learned trial Court with the direction to appoint

about:blank 1/6
3/25/24, 2:08 PM India Law Library Web Version

local commissioner, invite objections and thereafter decide the same afresh in accordance
with law.
The parties hereinafter in this judgment shall be referred to as the 'plaintiff' and
'defendant'.
2. It is not in dispute that the parties are neighbourers.
The plaintiff is owner in possession of land comprised in Khewat No. 77 min. ,
Khatoni No. 136, Khasra Nos. 734, measuring 00-00- 68 hectares and Khasra No.
1407/1329/735, measuring 00-01-43 hectares, situated at Muhal Khaneri, Tehsil
Rampur Bushehar, District Shimla, H. P. , whereas the defendant is owner in
possession of land comprised in Khewat No. 52 min. , Khatauni No. 71, Khasra No.
676, measuring 00-03-13 hectares. The plaintiff filed a suit for injunction on the
ground that the defendant in absence of the plaintiff had constructed his house over
and above the land comprised in Khasra Nos. 675 and 676 and encroached upon
Khasra No. 734. The plaintiff had got the land demarcated through the revenue
department, wherein it was found that the defendant has encroached upon Khasra No.
734/1, measuring 00-00-26 hectares. Despite repeated requests, the defendant had not
removed the encroachment, hence, the suit.
3. The defendant contested the suit by filing written statement wherein, he raised
preliminary objections regarding maintainability, cause of action, locus standi and
valuation etc. On merits, it was averred that the demarcation as relied upon by the plaintiff
was not in accordance with the instructions issued by the Financial Commissioner,
therefore, the area reflected therein was wrong. It was further averred that in addition to
land comprised in Khasra No. 676, the defendant was also in possession of Khasra Nos.
675, 677 and 679 and had no concern whatsoever with Khasra No. 734 and claimed that
since he had not encroached upon any land of the plaintiff, therefore, the suit be dismissed.
4. The plaintiff filed replication re-asserting the averments made in the plaint and denied
the contentions raised by the defendant in the written statement.
5. On 15. 01. 2013, the learned trial Court framed the following issues:
1. Whether the plaintiff is entitled for decree of permanent prohibitory injunction
restraining the defendant from raising any sort of construction over the suit land, as
alleged? . . . OPP
2. Whether the plaintiff is also entitled for the decree of mandatory injunction
directing the defendant to handover the vacant possession of the suit land, as alleged,
as prayed for? . . . OPP
3. Whether the suit is not maintainable? . . . OPD
4. Whether the plaintiff has no cause of action? . . . OPD
5. Whether the plaintiff has no locus standi to file the present suit? . . . OPD
6. Whether the suit has not properly valued for the purpose of court fee and
jurisdiction? . . . OPD
about:blank 2/6
3/25/24, 2:08 PM India Law Library Web Version

7. Whether the suit is frivolous and malafide? . . . OPD

8. Relief.
6. After recording evidence and evaluating the same, the learned trial Court dismissed the
suit mainly on the ground that the report of the local commissioner Ext. PW6/A, as was
relied upon by the plaintiff, was illegal, as PW6 had not carried out the demarcation in
accordance with the rules and procedures established by law and illegally adopted method
for carrying out the demarcation.
7. Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff
filed an appeal before the learned first Appellate Court and the learned first Appellate
Court, as observed earlier, has remanded the case back to the learned trial Court with the
direction to appoint local commissioner, invite objections and, thereafter, decide the same
afresh.
8. It is vehemently contended by Shri H. R. Bhardwaj, learned counsel for the defendant
that the judgment passed by the learned first Appellate Court is based upon surmises and
conjectures and is perverse. It is further urged by learned counsel for the defendant that by
appointing the local commissioner, undue advantage has been created in favour of the
plaintiff whereby instead of the plaintiff improving his case as set-up by him, it would
indeed the Court which is collecting evidence on his behalf.
9. While on the other hand, Shri Y. P. Sood, learned counsel for the plaintiff would strongly
urge that the findings recorded by the learned Courts below are strictly in accordance with
law, particularly, when it is not disputed that the instant is a case of boundary dispute and,
therefore, no fault can be found with the order passed by the learned first Appellate Court
whereby it has directed to appoint local commissioner to demarcate the land.
I have heard learned counsel for the parties and have gone through the records of the
case.
10. In Varala Ramachandra Reddy vs. Mekala Yedi Reddy & Ors. , 2010 4 CivCC 453,
(AP), it was held that the Court could appoint local commissioner in suit for permanent
injunction to survey and demarcate the land and to give report about the boundaries.
11. Indubitably, the object of local investigation is not so much to collect evidence which
can be taken in Court but to obtain evidence which from it peculiar nature can only be had
on the spot. Cases of boundary disputes and disputes about the identity of lands are
instances where the Court should order local investigation. (Ref. : Po Gyi v. Maung Paw
and Anr. , 12 I. C. 347).
12. Therefore, in order to determine whether there has been an encroachment, it is always
desirable to get the fields/plots/areas measured by an expert in order to find out the exact
area encroached upon. Oral evidence cannot conclusively prove such an issue.
13. Reference may be made to a decision of the Hon'ble Supreme Court in E. Achuthan
Nair vs. P. Narayanan Nair and another, 1987 AIR(SC) 2137, wherein it was held that
even a suit for demarcating boundaries of the property is maintainable and it was further
held that the dispute regarding identification of the boundary between the adjacent land
about:blank 3/6
3/25/24, 2:08 PM India Law Library Web Version

owners is certainly a dispute of civil nature and it is not barred either expressly or
impliedly. The technicalities of English law and the distinction made by the English courts
between legal estates and equitable estates, cannot be imported into our jurisprudence. It is
apt to reproduced relevant observations, which reads thus:-
"2. The only question argued before us by the learned counsel for the appellant was
that a suit for demarcating the boundary of a property was not maintainable when the
plaintiff himself was uncertain about the precise boundary. He placed reliance upon a
judgment of the High Court of Bombay in Kavasji Jamsetji v. Hormasji
Nassarvanjishet,1905 29 ILR(Bom) 73, and a judgment of a learned single Judge of
the Kerala High Court in Rayappan v. Yagappan Nadar,1958 KerLT 955. In these two
cases, the learned Judges purported to follow the statement of Lord Keeper Henley in
Wake v. Conyers, 1759 1 Wh and TLC (7th Edn. ) 170) decided in 1759 where he had
said, "the Court has, in my opinion (and if parties are not satisfied, they have resort
elsewhere), no power to fix the boundaries of legal estates, unless some equity is
superinduced by the act of the parties, as some particular circumstance of fraud, or
confusion, where one party has ploughed too near the other, or the like; nor has this
Court a power to issue such commissions of course, as here prayed". We do not think
that we will be justified in importing into our jurisprudence the technicalities of
English law and distinction made by the English courts between legal estates and
equitable estates. In India, the question whether a suit is cognizable by a civil court is
to be decided with reference to Sec. 9 of the Civil P. C. If the suit is of a civil nature,
the court will have jurisdiction to try the suit unless it is either expressly or impliedly
barred. A dispute regarding identification of boundary between two adjacent land
owners is certainly a dispute of a civil nature and it is not barred either expressly or
impliedly. In the judgment under appeal, Poti, J. pointed out :
"We can also state from our experience at the bar that this type of suits are not
unfamiliar to this part of our country. In fact in several areas of the State suits for
determination of boundaries when the boundaries between the holdings are disputed
are a matter of common occurrence and the maintainability of such suits, have not, till
recently, been doubted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
It is not necessary to further (go ) into this question since we see no warrant to follow
the English Law based, as it is upon its peculiar historical background. The question
in the Indian context is not whether any equitable consideration has to be shown
before a plaintiff in a suit gets the relief and, therefore, what was said in the decisions
of the English courts on this particular form of action may not have relevance here.
As we pointed out earlier in this judgment, the only question that may be relevant to
the issue in a suit of this nature in the courts in India is whether the suit is one of a
civil nature. Once it is shown that it is, no other question would arise and the courts
will have to entertain the suit and try it on the merits. The decision in Kavasji v.
Hormisji which has also been referred to by Varadraja Iyengar J. in Rayappan v.
Yagappan Nadar has simply purported to follow the English cases without
considering how far the law should be applicable to this country. We, therefore, are of
the view that the decision in Rayappan v. Yagappan Nadar has not laid down the
correct law and has therefore, to be overruled. " Justice Viswanatha Iyer who agreed
with Justice Poti but added a brief note of his own, stated :
about:blank 4/6
3/25/24, 2:08 PM India Law Library Web Version

"Disputes as regard the location of boundary separating adjacent lands of different

owners may arise under ever so many circumstances. One common instance is where
portions of survey field are transferred or allotted to different persons without
mentioning either the side measurements or other necessary measurements to fix the
geometrical shape of the plot at the spot. The area and location alone may have been
shown in the transfer deed or the partition deed. Without changing the location, the
area conveyed or allotted may be sought to be located in one or more alternative
geometrical shape by one owner. This may clash with the claim of the other person to
have his area located in a particular geometrical shape. Again, any one party may
wish to have the limits of the area belonging to him demarcated so that he may either
enclose the area to prevent trespass or to exercise acts of possession without
encroaching into the neighbouring plot. If the other party on demand does not co-
operate, a cause of action arises to have the limits of his property determined through
court. Again the property conveyed or allotted may have been described only with
reference to neighbouring properties. Those properties may or may not have been
limited in extent and shape to a survey field. In that case, a fixation of the boundary of
those properties may be necessary to fix the boundaries of the properties conveyed or
allotted. If there is no co-operation in doing that, that may result in a dispute. These
instances are only illustrative and not exhaustive. All these disputes are disputes of a
civil nature and they can form the subject matter of a suit under Sec. 9 C. P. C. There
is no express or implied bar under any other law. . . . . . . . . . . . . According to me,
whenever there is a dispute between two parties as regards the location of a boundary
separating their neighbouring properties and if on a demand to co-operate in fixing
that boundary it is not given, a suit will lie at the instance of the demanding party. So
I agree with my learned brother that the decision in Rayappan v. Yagappan is not
correct and has to be overruled. "
14. The object of such investigation is not to collect evidence which can otherwise be taken
in Court but to obtain evidence which from its peculiar nature can only be had on the spot.
15. There is yet another reason why commissioner in such like cases normally should the
appointed, the same being in case like instant one, where one party alleges encroachment
and the other denies the same, then it becomes necessary to appoint local commissioner
because the recitals of the documents may not reveal the true facts and measuring of the
land on the spot by a surveyor or any other qualified person may become necessary.
16. The Hon'ble Supreme Court in Gurunath Manohar Pavaskar and others vs. Nagesh
Siddappa Navalgund and others, 2007 13 SCC 565, held that the learned trial Court may
appoint a commissioner for the purpose of taking measurement and demarcation of the
disputed suit land.
17. Likewise, in Haryana Waqf Baord vs. Shanti Sarup and others, 2008 8 SCC 671,
the controversy between the parties was regarding demarcation of land because the
parties had adjacent land, the Hon'ble Supreme Court held that the second appeal should
not have been dismissed summarily and local commissioner ought to have been appointed
for demarcation of the land. It is apt to reproduce the relevant observations, which reads
thus:-

about:blank 5/6
3/25/24, 2:08 PM India Law Library Web Version

"5. The appellate court found that the trial court did not take into consideration the
pleadings of the parties when there was no specific denial on the part of the
respondents regarding the allegations of unauthorised possession in respect of the suit
land by them as per Para 3 of the plaint. But the only controversy between the parties
was regarding demarcation of the suit land because the land of the respondents was
adjacent to the suit land and the application for demarcation filed before the trial
court was wrongly rejected.
6. It is also not in dispute that even before the appellate court, the appellant Board had
filed an application for appointment of a Local Commissioner for demarcation of the
suit land. In our view, this aspect of the matter was not at all gone into by the High
Court while dismissing the second appeal summarily. The High Court ought to have
considered whether in view of the nature of dispute and in the facts of the present
case, whether the Local Commissioner should be appointed for the purpose of
demarcation in respect of the suit land.
7. For the reasons aforesaid, we are of the view that the High Court ought to have
considered this aspect of the matter and then decided the second appeal on merits.
Accordingly, we set aside the judgment and decree passed in the second appeal and
the second appeal is restored to its original file.
8. The High Court is requested to decide the second appeal in the light of the
observations made hereinabove within six months from the date of supply of a copy
of this order to it. The appeal is thus allowed. There will be no order as to costs. "
18. Having regard to the above discussion, I find no merit in this appeal and the same is
accordingly dismissed, leaving the parties to bear their own costs.

about:blank 6/6