Ram Chandra Swami @ Bhagirathi Mandir Trust vs Anupam Co Operative Housing Society Limited And Ors

Goutam Bhaduri, J

Heard.

The present petition is against the order dated 30.06.2018 whereby the application preferred by the petitioner/plaintiff under Order 26 Rule 9 CPC to demarcate the land by the Commissioner has been dismissed.

Learned counsel for the petitioner submits that the petitioner/plaintiff, which is a public trust filed a suit against respondent No.1 namely Anupam Co- operative Housing Society Limited (herein after referred to as "Society") and the different allottees of land by the Society claiming right over the land for declaration and ejectment. It is pleaded that the land which was owned by the trust has been taken over by the Society namely Anupam Co-operative Housing Society Limited without being owner thereof and has been further distributed to its members, who have constructed their houses, though the ownership still belongs to the plaintiff trust. It is stated that two demarcation orders though were passed by the Tehsildar in the year 2010 and 2015 but the demarcation of the land could not be carried out for the reason that the defendants are in mass, therefore, the application was filed before the civil Court wherein suit is pending to appoint a Commissioner to demarcate the land, which was summarily dismissed without any application of mind. Learned counsel further submits that under the circumstances if the subject land is not demarcated then what is the actual holding with ownership thereof and situation of it and to ascertain who is in the possession of the land cannot be decided. It is stated that the nature of such evidence would be an integral part of the case to decide the actual disputes between the parties. It is stated that the order impugned may be set aside as no prejudice would be caused to either of the parties in case the demarcation of the land in question is carried out by the Commissioner.

Perused the plaint. Perusal of the plaint would show that the trust has filed a suit for declaration & possession of the different lands on the ground that ownership of the land belonged to the trust. The plaint reflects different Khasra numbers and it is pleaded that the Society has taken the possession of land without the owner thereof and and further has distributed to its members, who have constructed the house thereon. The written-statement of the Society from which the members are defending their possession would show that Society has pleaded that on the basis of an agreement dated 21.02.1985, the Housing Co-operative Society came into possession of the land and at the relevant time some consideration was also paid. The members of the Society as defendants have stated that they have acquired the ownership right of the property by purchase and are claiming their right on the basis of the sale deed. The primary reading of the plaint and the written-statement would show that the right are claimed to have devolved on the members of the Society through the Co-operative Society, who had actually entered into for purchase of the land from the trust. The record further shows that earlier a demarcation order was passed in the year 2006 by Revenue Authorities on an application filed by the petitioner/plaintiff so as to find out who are in possession of the different lands i.e. the different Khasra and accordingly, the memo was issued to the Revenue Inspector and the Patwari on 10.08.2010 but demarcation of land was not carried out. Subsequently again on 18.05.2015 the memo was issued to the Revenue Inspector and the Patwari of the concerned area to demarcate the land, but it appears that the same could not be carried out and demarcation procedure remained as a status quo. The allegation of plaint and prayer thereof would show that prayer is made for declaration & possession of lands, which are claimed to be owned by Society. Therefore, it would be necessary to identify the suit land and also it would be necessary whether the defendants are in possession of such land or not so as to identify the subject property.

Supreme Court in case of Haryana Waqf Board Vs. Shanti Sarup & Ors. reported in (2008) 8 SCC 671 while dealing likewise issue has ruled that in case when there is encroachment it can be demarcated only by appointment of Commissioner, then investigation has to be carried out by the local Commissioner by demarcation of the disputed land under Order 26 Rule 9 CPC. In case of Shreepat Vs. Rajendra Prasad & Ors. reported in 2000(6) Supreme 389 while dealing likewise nature of dispute Supreme Court observed that when serious dispute exist in respect of the area and boundaries of land in question, especially with regard to the identity then it should have been decided and demarcated by the Commissioner appointed under Order 26 Rule 9 of CPC. Likewise this court in case of Sukhdev Prasad Yadav Vs. Hemlata Mishra and Anr. In Misc. Appeal No.86 of 2013 decided on 25th September, 2013 has held when the identity of land is in question the identity of the property should be decided by issuance of the commission.

Considering the principles laid down in Haryana Waqf Board (supra), the nature of dispute alleged and the plaint allegations that the co-operative housing society and its members have encroached upon the land owned by plaintiff trust, therefore, whether there exist encroachment or not has to be carried out by the spot inspection and the oral evidence would only be corroborative. The record shows that despite two orders passed by the Tehsildar to demarcate the land, the demarcation was not carried out. The members appears to have been claiming the right through the Co-operative Housing Society, which has alloted land to its members. Therefore, the question as to whether the co-operative society has encroached upon the land or not initially and thereafter alloted to its members can only be ascertained by demarcation. In a result, the order dated 30.06.2018 is set aside. The trial Court is directed to demarcate the land by appointing a Commissioner not below the rank of Revenue Inspector in respect of the suit property to find out who are in possession of the suit property. Since it has been stated that despite the order of the Revenue Authority, the demarcation could not be carried out as the defendants are in mass, therefore, it is directed that if the Revenue Inspector finds it difficult or finds any obstruction then he may seek for the police help and in such case, the police help should also be provided to the Revenue Inspector to carry out the demarcation. The Court below is further directed to complete the procedure of demarcation within a further period of 3 months from the date of receipt of this order.

With such observation, the petition stands disposed of.