Haryana Waqf Board Vs.
Shanti Sarup & Ors. [2008] INSC 1149 (16 July 2008)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO......................OF 2008 (Arising out of
SLP)No.7510 of 2007) Haryana Waqf Board .....Appellant VERSUS Shanti Sarup
& Ors. ...Respondents.
O R D E R
1.
Leave
granted.
2.
This
is an appeal filed by the Punjab Waqf Board who was the plaintiff in a suit for
declaration and injunction. The High Court in the second appeal had summarily
dismissed the appeal on the ground that the second appeal was concluded by the
concurrent findings of fact arrived at by the courts below. From the judgment
itself, it would appear that the Board had failed to prove that the respondents
have encroached any land belonging to the appellant-Board. In view of the
aforesaid position, the second appeal was summarily dismissed by the High
Court. In our view, the High Court ought not to have dismissed the suit
summarily merely on the ground that the second appeal was concluded by 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 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 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.
[TARUN
CHATTERJEE] New Delhi; ................................................J.
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