Deep Ram vs Chet Ram

Sureshwar Thakur, J.—The plaintiff-revisionist had instituted a suit for permanent prohibitory injunction restraining the defendant/respondent from interfering, on, the land/Galli purportedly owned and possessed by the plaintiff comprised in Khewat Khatauni No. 172, Min 316, Khasra No. 259, 260 measuring 0-01-74 hectares. During the course of hearing of the suit before the learned trial Court, an, application on behalf of the plaintiff was preferred under Order 39 Rule 1 and 2 CPC, for, restraining the defendant-respondent, to carry out any construction over the suit land, during the pendency of the suit.

To rest the controversy, which has erupted interse the parties, the learned trial Court had ordered the appointment of a Local Commissioner for carrying out a demarcation of the suit property. The Naib Tehsildar, Kasauli was appointed as Local Commissioner to carry out, the demarcation of the contiguous estates. He submitted his report wherein he disclosed that ownership and possession of the "Galli" comprised in Khasra No. 261 and 262 vested in the defendant-respondent. Nonetheless, the plaintiff-revisionist, filed objections to the report of the Local Commissioner, communicating therein the fact that the report of the Local Commissioner, is, not to be relied, as, the demarcation has not been carried out in accordance with law. Considering the matter as laid before the learned trial Court, the learned trial Court was, of, the opinion that the report of the demarcating officer, cannot, at the stage of rendition of decision, on, an application under Order 39 Rule 1 and 2 filed before it, at, the instance of the plaintiff, be, construed to be a potent material, on strength whereof at that stage, the ownership and possession over qua the Galli, could be determined. Consequently, the relief as prayed for by the plaintiff-applicant was partly allowed by the learned trial Court, in as much, as, the learned trial Court directed the parties to maintain status quo qua the nature and possession of the suit property. The respondent-defendant filed an appeal before the learned District Judge, Solan, who, reversed the findings recorded by the learned trial Court.

In instant revision before this Court has been preferred at the instance of the plaintiff-revisionist, who is aggrieved by the orders rendered by the learned District Judge, Solan, reversing the decision rendered by the learned trial Court. The counsel on either side have been heard. For plaintiff-revisionist to succeed, it, had to be potently established by adequate or satisfactory material, that the triplicate test of (i) prima facie case existing in favour of the plaintiff revisionist (ii) balance of convenience lying in his favour and (iii) also irreparable loss and injury likely to ensue, in case, relief is refused, has been fulfilled. The acid, legal wrangle, which has erupted interse the parties is qua the ownership and possession of the "Galli" over which the defendant respondent, proposes to raise construction. Counsel for the defendant-respondent relies upon the report of the Tehsildar, who carried out the demarcation of the contiguous estates, hence submits, that, the contentious "Galli" is owned and possessed by the defendant. However, objections have been raised to the report of the local Commissioner. Even when the counsel for the defendant contends, that, dehors the objections raised to the report of the local commissioner, given the acceptance by the revisionist to the findings recorded by the local commissioner, any objection at his instance do not garner or gather any force or intensity. Hence, objections to the report of the Local Commissioner are contended to be not detracting from the conclusive determination rendered by the local commissioner in his report, qua the ownership and possession of the defendant of the Khasra Numbers, on, which it is located. However, even if the defendant-respondent, may have appended signatures manifesting the fact of his having participated in the demarcation proceedings, the same would not either extinguish the jurisdiction of the Court, to, adjudicate independently upon the objections to the report of the Local Commissioner, as, has been preferred before it or to render a conclusion qua the probative worth of the report of the Local Commissioner. Obviously, the statement of the plaintiff-revisionist conveying the fact of his having participated in the demarcation proceedings conducted by the local commissioner would, not, also fasten any probative value to the report of the Local Commissioner, which has to be proved by, the local Commissioner by his stepping into the witness box. On such manner of its being proved would the report of the Local Commissioner, as, relied upon by the first appellate court to reverse the findings recorded by the learned trial Court, acquire probative value and force. Moreso, when its probative force would get fortified only after the local commissioner, who, prepared the demarcation report, has withstood the test of cross-examination, to which he is subjected, to, at the instance of the plaintiff-revisionist. When the legally ordained exercise for proving the local commissioner's report, is, not yet undergone nor also when the local commissioner has not faced the acid test of cross-examination, it, cannot be at this stage be prima facie concluded, that a conclusive verdict qua fate of the case be rendered. If such a conclusion is formed, it, would abort the right of a fair contest inhering in the plaintiff-revisionist. At this stage, this Court, is, of the view, that, the report, though comprises a piece of evidence, yet, it does not comprise a conclusive evidence, so as, to at this stage oust the title or interest of the plaintiff-revisionist qua the disputed contentious "Galli". Consequently, the orders rendered by the learned trial Court are affirmed and the orders rendered by the learned first appellate Court are set-aside. The revision petition is disposed of accordingly. The parties though counsel are directed to appear before the learned trial Court on 17th July, 2014. Records of the trial court be sent back forthwith so as to reach there well before the said date.

Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.