Om Parkash and Others vs Ram Tari

Surjit Singh, J.—Heard and gone through the record.

Plaintiffs-appellants filed a suit for possession of 42 Kanals land, forming part of Khasra No. 1982/404/1, as entered in Jamabandi for the year 1955-56, situate in village Lal Singi, Tehsil Una, against the predecessor of the defendant-respondent, alleging that land bearing Khasra No. 1982/404/1, measuring 84 Kanals 9 Marlas, had fallen to their share, in a partition and that out of that land the predecessor of the respondent, illegally and unauthorisedly, occupied land measuring 42 Kanals. Suit was dismissed. An appeal was filed before the District Judge, who remanded the case.

After remand, the matter remained pending in the Court of Senior Sub Judge, for quite long a time, to seek report of some Local Commissioner. Several Local Commissioners were appointed. Most of them refused to execute the commission. Ultimately, one Local Commissioner gave demarcation and submitted report. Senior Sub Judge set aside that report, holding that the demarcation had been carried out without there being proper documents with the Local Commissioner. Thereafter, appellants had been seeking appointment of fresh Local Commissioner, but they did not file copy of Musabi, despite various opportunities having been granted to them and so their request for appointment of fresh Local Commissioner was declined and case was decided on the basis of evidence on record.

Learned trial Court held that neither the plaintiffs-appellants had been able to prove partition nor was there any evidence, indicating that any portion of the suit land had been encroached upon by the defendant-respondent. Appeal was filed in the Court of District Judge, by the plaintiffs-appellants, who came to the conclusion that partition had taken place and some portion of the suit land was with the respondent, but he did not pass any decree in favour of the appellants, on the ground that the land allegedly encroached upon by the respondent had not been identified and its Tatima was not available.

This appeal was admitted, vide order dated 12th November, 1999. Though order of admission does not state specifically or even by implication as to on which substantial questions of law the appeal had been admitted, yet it may be presumed that it was admitted on the questions formulated by the appellants and submitted alongwith the memorandum of appeal, which are as follows:

Whether the learned Courts below have illegally ordered the closer of the evidence of the Plaintiffs particularly in view of peculiar facts and circumstances of the case.

Whether the 1st Appellate Court has illegally come to the conclusion with respect to identification of land in dispute without affording opportunity to the Appellants to have demarcation on the basis of certified copy of Aks Tatima.

Whether the Courts below have acted in a just, fair and equitable manner in non-suiting the Plaintiffs on the basis of procedural law which has resulted in irreparable loss and injury to the Plaintiffs and they are likely to loose importance and valuable right in the property.

Only submission, which has been made on behalf of the appellants, is that atleast one opportunity should be given to the appellants to file papers required for the assistance of Local Commissioner and thereafter report of the Local Commissioner may be obtained and the matter decided on the basis of such report to do justice to the parties.

Finding of the learned District Judge that partition had taken place and in that partition the suit land fell to the share of the appellants has not been challenged by the respondent, by filing separate appeal or even Cross-objections. That means the appellants have been able to prove that they are the exclusive owners of the suit land. They have been non-suited, because of the non-identification of the portion of the land, which has allegedly been encroached upon by the respondent.

Looking to the peculiar facts and the circumstances of the case, I feel that ends of justice demand that at least one more opportunity is given to the appellants, as prayed for by their counsel, to make available all the relevant papers to the trial Court, for appointment of a Local Commissioner to find out if any portion of the suit land is encroached upon by the respondent or not. Hence, the appeal is accepted, impugned judgment and decree of the first appellate Court as also those of the trial Court are set aside and the case is remanded to the trial Court, with the following directions:

Plaintiffs-appellants shall be afforded two months time, after the receipt of the record by it and the presence of the parties before it, to produce copies of Musabi and all other relevant documents required for the demarcation of the land.

In case copy of Musabi and other documents are filed within the aforesaid period of two months, some Revenue Officer (serving or retired, having sufficient experience in the matter of demarcation) shall be appointed as Local Commissioner, within 15 days, and such Local Commissioner shall submit his report within one month.

On receipt of the report of the Local Commissioner, parties shall be given 15 days time to file objections, if any, to the said report and to file counter to such objections, one week time shall be given. Thereafter, objections shall be disposed of within one month, during which period the parties may lead evidence, if any, in support of their objections and the pleas raised against such objections.

After the decision on the objections, suit shall be disposed of within two months.

Parties are directed to appear before the learned trial Court on 24th May, 2010.

Copy dasti.