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Judgment
Thadani, J.—This is an application under the provisions of Rule 36 of the Rules framed for the Administration of Justice in the Administered Areas of Shillong Town, read with Section 115, Civil P.C. directed against an order passed by the Additional Dominion Agent, Khasi States, in Civil Political Rev. Case No. 4/S of 1948, dated 4-4-1949.
The facts material to the application are these:--The petitioners who are husband and wife, purchased a holding situated in Mawkhar, Shilong, from the mother of petitioner Ka Setimon, named Ka Myrhish Jaid Sawkmie, by a sale deed, in which the boundaries relating to the property in dispute were described. These boundaries have been referred to in Ex. B and the report of the Myntries, dated 26-6-4 Section the question of determining the boundaries came up before the Myntries in the following circumstances.
In 1934, the opposite parties, being the mother and her youngest daughter and her husband, extended their bakery in such a manner as to encroach upon a portion of the land belonging to the petitioners. The petitioners moved the Shillong Municipal Board for the depilation of the extension, but the Board declined to order its demolition. The petitioners then filled a suit being Suit No. 6 of 1944, in the Mylliem State Court which, by its Judgment, dated 4-3-1946, decided that the boundaries of the property in dispute were as shown in Ex. B, and held theft the, opposite parties had encroached upon UMP property of the petitioners by some 2 or 3 feet A year later on 10-6-47, the petitioners moves the Mylliem State Court for the restoration of their land which had been encroached upon by the opposite party, and for determining the boundaries of the properties belonging to the reactive parties. Upon this petition, two Myntries of the Mylliem State were deputed to demarcate the boundaries. The Myntries submitted the report on 26-6-48. The report is in these terms:
To
The Siam of Mylliem and the Darbar, Mylliem State.
Respected Siem,
According to the arrangement made in the Darbar on the petition of U. Hondromuni Rop, we give here our report regarding our local our arrangement made by us regarding the compare boundary between the house of Ka Setimon (Under Hondromuni Roy) and the house of Ka (sic) (Ka Myrhiah) as follows:
On the 26-6-48, we went to the place and when we sent for both parties, we inspected the boundary as written in the Ex. B and we found these.
That the wall of the foundation and the garden of Ka Setimon, from the front most points the house to the endmost point of the house is straight, but from the front most point of the house towards the front of the house, the boundary is deleted and the reason of this destruction first when Ka Myrhish got the permission for the construction of the house 10'' by 32'' from end to end, and after that Ka Myrhish got MA permission to extend a room towards the house of Ka Setimon by 4'', but it was found now that the front part of the house of Ka Mitibon (Ka-Myrhish) is 17 and a half instead of 14 ft. these encroachment destroyed the front part boundary We discussed this with U. Hondromuni and he said that he wants now that the Myntries will demarcate the boundary as they think it best, (sic) that no other dispute might arise later on when it was Ka Myrhish that has constructed the house in this manner. Ka Myrhish also on (sic) day agreed that the Myntries so deputed to arrange the boundary as they think it best.
Therefore, after we have carefully studied the place and the position of the houses, we made the boundary between the two compounds in this way:
Straight from the end point of the house of Ka Setimon we made a straight line close by the house of Ka Mitibon at the same time leaving some space for the fall of the rain water and erected a boundary stone there and staring (sic) from that stone to the end point of, the house of Ka Mitibon and there also we erected a boundary stone, and straight from this boundary stone, we made a straight line up to close to the main road and here also we erected a boundary stone according to the following plan, and we beg you to confirm this boundary arrangements marked in red ink.
Obedient servants, Sd/- Hodri Singh Mynirs L.T.I. of U Mula Basan.
Dated, Shillong The 26th June 1948,
It is clear from the statements contained in the report that both the petitioners and the opposite parties left the question of the determination of the boundaries to the Myntries to be decided in the manner they thought bees. Along with the report, the Myntries apparently submitted a sketch map demarcating the boundary line by a dotted line in red Ink. If the red line is read with the report of the Myntries, there is no difficulty whatever in determining the boundaries of the respective houses of the parties
In spite of the fact that both the parties had moved the Siem of Mylliem State to assist them in the demarcation of the boundaries with reference to the judgment of the Mylliem State, the Opposite Party preferred an appeal against the decision of the Myntries to the Dominion Agent, Khasi State, who registered the case as a Revision Case and transferred it to the Court of the Additional Dominion Agent, Khasi States, for disposal. The Additional Dominion Agent, by his order, dated 4-4-49, set aside the boundary line as determined by the Myntries and (sic).
I found there is an old footpath between the compounds of the parties lying inside the compound of the appellants as the respondents'' old stone wall separating the compounds of the parties clearly shows.
The question for my consideration is whether the Additional Dominion Agent had jurisdiction to interfere in what was undoubtedly an act parties. Rule 36 of the Rules to which refer-parties. Rule 36 of the Rules to which reference has been made, says:
The Deputy Commissioner shall be a Court of appeal from a decision of an Assistant.
Assuming that from a decision of the Siem of Mylliem State an appeal is competent to the Dominion Agent, the question arises--appeal from what decision? In this case, an appeal from the decision of the Dewan of Mylliem State was preferred by the opposite parties, and it was dismissed. In other words, the judgment of the Dewan was in force when the parties sought the assistance of the Siem of Mylliem State in the matter of the demarcation of the boundaries in conformity with the judgment of the. Dewan of Mylliem State The request of the parties to the Siem of Mylliem State in the matter of the demarcation of the boundary line was only a step in aid of the execution of the decree passed by the Dewan of Mylliem State. There is no provision in the Rules framed for the Administration of Justice and Police in the Khasi States area which provides for an appeal against an action taken as a step-in-aid to the execution of a decree. Moreover, in this case, the parties having agreed that the Myntries were to demarcate the boundaries in the manner they thought fit it is problematical whether an appeal would lie against such demarcation even if there were a provision in the Rules framed for the Administration of justice and Police for an appeal to the Dominion Agent. An appeal against an order passed in the execution of a decree lies provided there is a statutory provision in that behalf, and I not otherwise. There is no statutory provision in the Rules which enables a party to prefer an appeal against an order made in execution of a decree. It is conceivable that the Dominion Agent realised this particular difficulty and, therefore, treated the petition not as appeal but I as a revision Case. But it is plain from the Rules framed for the Administration of Justice and police in this area that the Dominion Agent has no provisional powers. Presumably when treating the petitioners case as a revision case, he had in view the provisions of Section 36 of the Rules. Rule 36, like Section 115, Civil P.C. uses the words "call for the proceedings of any case decided by any officer subordinate to him". After the Myntries had demarcated the boundaries, it would still have been open to the party aggrieved to seek relief in execution proceedings if and when execution proceedings were brought. The demarcation of the boundaries by the Myntries on the facts of this case was merely in the nature of an interlocutory proceeding, manifestly outside the purview of Rule 36.
In my opinion, therefore, the learned Additional Dominion Agent had no jurisdiction to Interfere in the demarcation of the boundaries arrived at by the Myntries of Mylliem State Court.
The result is that the boundary line as demarcated by the Myntries of Mylliem State Court in Ex. B will stand. The petition is allowed, but on the facts of this case. I make no order as to costs.