Property dispute case wherein appointment of local commissioner was challenged before High Court Chandigarh.
Review Petition under Art 227
Art 22 of Indian Constitution, empowers the High Courts to have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, except a court formed under a law related to armed forces. The article gives supervisory powers over all other inferior Court under its jurisdiction like revise the decisions made by the inferior Courts. The Honourable Supreme Court held in Radhey Shyam & Anr vs Chhabi Nath & Ors held that jurisdiction under 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules and the exercise is discretionary. In this case study, the Court of Punjab and Haryana got a revision petition under Art 227 wherein the subordinate court have appointed a local commission for demarcation of land and it was challenged in the High Court. Local Commission appointed under Section 75 empowers the Local Commission to have the power to have local investigation, to do partition, examination of witness and to hold investigation. The High Court in their opinion felt that the decision of appointing Local Commissioner is valid as the dispute can be settled regarding the boundaries of the land.
M/S Allwin Infrastructure Ltd vs M/S Maxxus Developers And Ors
Brief facts
It was an instant revision petition filed under Art 227 of The Constitution of India regarding an order passed by the civil judge where an application moved by the respondents for demarcation in a suit for injunction instituted by the petitioner, has been allowed. Here, petitioner is a company who develops Residential Group Housing Colony and is registered with the Registrar of Companies. Petitioner is having exclusive ownership of suit land measuring 20 bighas 15 biswas in which out of which, 16 bigha 10 biswas will be developed as Residential Group Housing Colony and the remaining land measuring 3 bighas 17 biswas a commercial unit is to be developed where duly permission from authority has been taken. Respondents’ land is only adjacent to the land of the petitioner and is only interfering with the peaceful possession by the petitioner. The petitioner contended that there is no dispute of land regarding boundaries of the land and a demarcation report having already been relied upon by the respondents in the written statement, the order of appointing local commissioner to get land demarcated can’t be sustained.
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Respondents’ plea
The revision petition under Art 227 can’t be sustained and not maintainable against the order of the appointing Local Commissioner for purposes of demarcation as well as terms of settled law any dispute with respect to boundaries of the land described in title documents by khasra numbers or property numbers can only be settled by demarcation of the land at the spot. Senior counsel prays for dismissal of the revision petition.
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Observation by The Court
The Divisional Bench of this Court in Harvinder Kaur and Another Vs. Godha Ram and another had examined the question whether revision lies against an order passed under Order 26 Rule 9 of the Civil Procedure Code, refusing to appoint a Local Commissioner?
The Court found out that (in brief) order would be revisable only when it determines or adjudicates some right or obligation of the parties in controversy and will be subject to the limitations put under sub-Section (1) and the proviso to Section 115 of the Civil Procedure Code. There can’t be a general rule that no case a revision would lie against an interlocutory order passed under any other provision of Order 26, and that it would be on the facts of each case that it will have to be found out whether the interlocutory order against which a revision is sought to be filed, has adjudicated for the purposes of the suit some right or obligation of the parties in controversy or not.
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Appointing local commissioner for purposes of demarcation cannot be laid down as a general rule.
There is no dispute regarding the land ownership of the land by petitioner as well as ownership of adjoining land owned by the respondents. Petitioner moved an application under Order 39 Rule 1 and 2 Civil Procedure where the defendant was not allowed to interfere in the possession of the petitioner’s land. Such restriction injunction had the following statements (in brief): petitioner has 20 bighas 15 bisas and respondents has 26 bighas 4 biswas of land. The allegation by both the parties that the other party wants to encroach upon the land of other. The photograph provided by the petitioner show there has been presence of flags and barbed wires but the same are not clear if they specifically provide for the boundaries of the land of petitioner of respondents. Dispute of boundary dispute can be settled by demarcation of the respective land and it is important to appoint local commissioner.
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It would be clear that the application under Order 39 Rule 1& 2 CPC has been allowed without adverting to any site plan or demarcation report. In a case where parties being owners of adjoining land and petitioner alleging encroachment in the suit property, an application moved for demarcation of the land of the petitioner as also respondents would certainly facilitate an effective and complete adjudication of the matter which would ensure he order already passed granting is not misused.
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The court finds the appointing a Local Commissioner for purposes of demarcation is to be valid and the Demarcation of the land would be done by latest technology which would not cause any prejudice and hence no intervention in the matter is called for.
This post is written by Digant Das.
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