DEEPIKA & OTHERS Vs. UJJAGAR SINGH

JUDGEMENT

(1.) The instant petition is directed against the orders pronounced by the learned Civil Judge (Junior Division), Court No.-II, Solan, on 10.01.2018, order whereof, is, borne in Annexure P-7, and, is rendered upon, an application cast before him under the provisions of Order 26, Rules 9 CPC, whereunder, he proceeded to decline the espoused relief, vis-a-vis, the petitioners/plaintiffs.

(2.) The aforesaid application was instituted by the petitioners/plaintiffs, in their suit, in suit whereof, they claimed a relief of mandatory injunction, and, relief, of, vacant possession of land measuring 35 sq. meters, land whereof, is, averred to be encroached, by the defendants/respondents herein. The learned trial Court, merely on anvil, of, the mandate(s), of, Order 26, Rules 9, and, of 10-A, of the CPC, being impermissible for being recoursed, importantly, when under their garb, the apt evidence, is aspired to be collected, hence declined the espoused relief to the plaintiffs/petitioners. However, the learned trial Court in assigning, the aforesaid reason(s), for hence declining relief to the plaintiffs/petitioners, has mis construed the factum of the plaintiffs/petitioners, in their suit, seeking relief, of mandatory injunction, and, also relief of vacant possession, of the land, borne in an area of 35 sq. meters, whereon, the defendant/respondent, are alleged to make an encroachment. Consequently, hence, the aforesaid espousal reared by the plaintiffs/petitioners, was mitigatable or was enjoined, to be put to, a, quietus, only, upon an apt affirmative order, being recorded by the learned trial Court. Consequently, the reasons projected by the learned trial, for, declining the espoused relief, vis- a-vis, the petitioners/plaintiffs, does, reiteratedly arise from a misconstruction of the salient nuance, of, the mandate, of, Order 26, Rule 9 of the CPC, besides arises, from, gross misreading, of, the reliefs espoused by the plaintiffs/petitioners, (I) whereas, for determining the comparative validity(ies) thereof, a valid demarcation, was enjoined to be ordered to be conducted, and, a validily prepared demarcation report, also comprised the best documentary evidence, for settling the controversy, vis-avis, the plaintiffs or the defendants being entitled, to retain the apt possession, of, an area measuring 35 sq. meters. (ii) Dehors the aforesaid infirmities, ingraining the reasoning assigned by the learned trial Court, yet, for the reason, that, a direction of remand, borne in Annexure P-4, stands hence pronounced by the Collector, Solan, vis-avis, the Revenue Officer concerned, for, the latter holding, a, fresh demarcation of the suit land, (iii) and, also thereunder, the, revenue officer concerned, being, directed to bear in mind, the, demarcation acquiesced, by respondent, carried, upon, application No. 216/8 of 2008, (iv) and despite the order of remand being made, upon, the Revenue Officer concerned, his omitting to carry out the demarcation, of, the suit land, (v) and, with the application carrying a ground qua the order rendered, on 17.01.2017 remaining uncomplied, and, besides, an, apt order of compliance therewith, being meted, hence being asked to be rendered by this Court, (vi) siginificantly, hence, obviously constrains this Court, to, not afford the relevant relief, to the petitioner herein, given it being open to the petitioner, to motion, the Collector concerned, for the apt order of remand being enforced, besides when the hereinafter made observations would mitigate the anguish of the petitioner herein. (vii) Importantly, when hence the instant applicant, is, premature.

(3.) The learned counsel appearing for the respondent/defendant has contended with vigour (i) that with, a, demarcation being conducted, by the Field Kanungo, upon, application bearing No. 216/8 of 2008, and, the aforesaid demarcation being accepted, by, one Om Prakash Sahni, under an apt statement made by the latter, (ii) hence, the demarcation carried, upon, application No. 216/8 of 2008, rather constitutes, the, best and befitting document, (iii) more so, when one Om Prakash Sahni acquiesces, vis-a-vis, validity thereof. The aforesaid submission as addressed before this Court, is, prima facie well founded, (i) given Annexure P-4, comprising, an order recorded by the Collector, Solan, on, 17.01.2017 hence making a clear display of the Collector concerned, after, setting aside the demarcation held by the Field Kanungo, on 27.05.2014, hers proceeding to make an order, upon, the Assistant Collector 2nd Grade, Solan, to carry out demarcation afresh, of the suit khasra numbers, (ii) conspicuously, when the aforesaid order, of, remand also makes an apt reference, of, a demarcation held, upon, application No. 372/8 of 2013, by the Field Kanungo, demarcation whereof, finds reflection, in the apposite order, made by the Collector, to, hence stand acquiesced by one Om Prakash Sahni, being also imperatively required to be borne in mind, (iii) thereupon, even when the Collector concerned, had made an order, for hence a fresh demarcation being conducted vis-a-vis suit khasra numbers, (iv) nonetheless, the aforesaid recorded order, cannot, per se render invalidated or validated, the acquiesced demarcation conducted, vis-avis, the suit land, upon application No.216/8 of 2008, unless, for valid reason, qua the fresh demarcation ordered to be carried by the revenue officer concerned, and, in course whereof, he is enjoined to make an allusion thereto, he hence yet, proceeds to make, a, dis-concurring therewith report. In aftermath, the demarcation carried by the Field Kanungo, upon, application No.216/8 of 2008, is, rather permitted, if not tendered, to be, in accordance with law, hence tendered in evidence, and, the aggrieved therefrom, is also permitted, to rear objections thereto, before the learned trial Court, (v) and the learned trial Court is directed to, in accordance with law, decide the objections, if any, preferred therebefore by the aggrieved, vis-a-vis, the demarcation report aforesaid. However, the learned trial Judge, may not , pronounce any order, upon, the validity, of, demarcation carried, upon, application bearing No. 216/8 of 2008, till, the revenue officer concerned, as, directed by the Collector concerned, carries out, a, fresh demarcation, and, after its being in accordance with law, hence permitted to be tendered, and, exhibited into evidence, besides whereafter objections, being elicited thereto, from, the apt aggrieved, hence, only thereafter, the, learned trial Judge shall in accordance with law, pronounce, upon, validity, of, both the demarcation carried, upon, application No. 216/8 of 2008, and, upon the fresh demarcation, carried, upon application No.372/8 of 2008, by the revenue officer concerned.