Haryana Waqf Board vs Shanti Sarup & Ors

the concurrent findings of fact. The

dispute that was raised by the parties

before the court was whether the

respondent had encroached upon any land

belonging to the appellant-Board.

Therefore, it cannot be in dispute that

the dispute was in respect of the

encroachment of the suit land. Admittedly,

in this case, an application was filed

under Order 26 Rule 9 of the Code of Civil

Procedure which was rejected by the trial

court but in view of the fact that it was

a case of demarcation of the disputed

land, it was appropriate for the court to

direct the investigation by appointing a

Local Commissioner under Order 26 Rule 9

of the CPC. The appellate court found that

2 the trial court did not take into

consideration the pleadings of the parties

when there was no specific denial on the

part of the respondents regarding the

allegations of unauthorized possession in

respect of the suit land by them as per

paragraph 3 of the plaint. But the only

controversy between the parties was

regarding demarcation of the suit land

because land of the respondents was

adjacent to the suit land and the

application for demarcation filed before

the trial court was wrongly rejected. It

is also not in dispute that even before

the appellate court, the appellant-Board

had filed an application for appointment

of a Local Commissioner for demarcation of

the suit land. In our view, this aspect of

the matter was not at all gone into by the

High Court while dismissing the second

appeal summarily. The High Court ought to

have considered whether in view of the

3 nature of dispute and in the facts of the

present case, whether the Local

Commissioner should be appointed for the

purpose of demarcation in respect of the

suit land.

3. For the reasons aforesaid, we are of

the view that the High Court ought to have

considered this aspect of the matter and

then to decide the second appeal on

merits. Accordingly, we set aside the

judgment and decree passed in the second

appeal and the second appeal is restored

to its original file. The High Court is

requested to decide the second appeal in

the light of the observations made herein

above within six months from the date of

supply of a copy of this order to it. The

appeal is thus allowed. There will be no

order as to costs.

................................................J.

4 [TARUN CHATTERJEE]

New Delhi; ................................................J.

July 16, 2008. [J.M.PANCHAL]

5