IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
****
CR No.3077 of 2023 (O&M)
Reserved on:27.11.2024
Pronounced on: 10.12.2024
Kuldeep Kumar Sharma .....Pe11oner
Vs.
Randeep Rana .....Respondent
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Argued by:-
Mr. B.S. Bedi, Advocate for the peoner. Mr. Akshay Jindal, Advocate with Mr. Vrishank Suri, Advocate for the respondent. ****
DEEPAK GUPTA, J.
Peoner herein is the Judgement Debtor before Ld. Execung Court. He is aggrieved by the impugned order dated 18.4.2023 passed by the execung court of ACJ(SD), whereby the applicaon moved by him under Order 26 Rule 10 (2) CPC for examinaon of the Local Commissioner i.e. Naib Tehsildar, Karnal and Mr. Nin, Junior Engineer (Civil), Panchaya Raj Karnal, has been dismissed.
2. As the paper book would reveal, the suit for specific performance filed by the plainff-Decree Holder (Respondent herein) was decreed by learned Addional Civil Judge (Senior Division), Karnal vide judgment dated 14.03.2017. The said judgment a=ained finality, inasmuch as the appeal filed by the JD - defendant (peoner herein) was dismissed by the Appellate Court on 01.09.2021 and Regular Second Appeal filed by him was dismissed by this Court on 18.02.2022.
3. The suit property comprises of a showroom and plot within the boundary wall as shown in the site plan. As per the terms of agreement between the pares, it had been agreed that measurement will be taken at the me of execuon of the sale deed and whatever area would be found, the sale deed of the said area would be executed for the price of the said area only.
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4. Suit was decreed in the following terms:-
"Suit of the plainff is hereby partly decreed with cost to the effect that the plainff- Randeep Rana is entled for specific performance of agreement to sell dated 28.2.2011 in his favour on payment of balance sale consideraon in respect of suit land as exisng on the site aAer demarcaon within a period of three months from the date of this order and the defendant is directed to get executed the requisite sale deed on the receipt of the balance sale consideraon, failing which the plainff shall be entled to get the same executed by the Court of law."
5. The dispute, as of now, is regarding the measurement of the suit property. Perusal of the paper book further reveals that along with the execuon, decree holder moved an applicaon for appointment of a Local Commissioner to demarcate the suit property. Despite service, JD chose not to appear and so, was proceeded ex-parte. Applicaon for demarcaon of the suit property was allowed. Tehsildar was directed to get the suit land demarcated. He submi=ed his report on 15.12.2021, as per which the area of the disputed property was 483 square yards. ThereaAer, JD appeared and was allowed to join the proceedings. He prayed for fresh demarcaon. The applicaon was allowed. Tehsildar Karnal was again appointed as the Local Commissioner, who aAer giving noce to both the pares, demarcated the suit land and in his report, found the area of the disputed property to be 483.23 square yards. The Judgment Debtor filed objecons to the said report but the same were dismissed by the Execung Court on 20.09.2022. He then filed Civil Revision No.4482 of 2022 before this Court.
6. Disposing of the above Civil Revision on 17.11.2022, a Co- ordinate Bench of this Court passed the following order :-
"The present peon has been filed, challenging an order dated 20.09.2022 passed by the Execung Court, whereby objecons, filed at the instance of peoner/JD to the report submi=ed by the Local Commissioner in execuon proceedings, have been dismissed. Considering the nature of the dispute, which revolves around the Page No.2 out of 10 pages
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area of property in queson, learned counsel for the peoner submits that the Execung Court has commi=ed an error while passing the impugned order.
On the other hand, Sh. Ashish Aggarwal, Sr. Advocate assisted by Mr. Vishal Pundir, Advocate and Ms. Nidhi Gakkhar, Advocate, who has put in appearance on behalf of the respondent submits that the demarcaon of land in queson already stands carried out.
I have heard learned counsel for the pares and gone through the paper book.
Considering the nature of controversy involved, learned counsel for both the pares submit that they shall have no objecon, in case, a fresh demarcaon of the decretal property is ordered to be carried out in a me bound manner.
Accordingly, the Naib Tehsildar, Karnal is requested to carry out a fresh demarcaon of the site in queson, which is situated in Khasra Nos.9705-4096 at Kasba Karnal with the assistance of revenue officials and the relevant revenue record. It shall also be appreciated, in case, the Naib Tehsildar Karnal seeks assistance of any serving Junior Engineer (Civil) for the aforesaid purpose.
Considering the fact that the decree in favour of respondent is dated 14.03.2017, I deem it appropriate to direct that the enre aforemenoned exercise be carried out within a period of four weeks from today and a report within a week thereaAer be submi=ed before the learned Execung Court. Keeping in view the fact that the previous report made by the Local Commissioner was challenged primarily on the ground that the peoner herein was never put to adequate noce by the Local Commissioner before vising the spot, the pares are hereby put to noce and directed to remain present at the spot on 07.12.2022 at 11:00 a.m., for the purpose of Local Commissioner to visit the site and to carry out demarcaon. It may be noted here that the date i.e. 07.12.2022 has been fixed in concurrence with the Naib Tehsildar, Karnal with the able assistance and help of Sh. Gaurav Jindal, Addional Advocate General, Haryana, who has coordinated the same telephonically with the concerned Naib Tehsildar, namely, Sh. Ram Kumar.
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For the purpose of effecve implementaon of the aforesaid order, let a copy of the same be also supplied to Sh. Gaurav Jindal, Addional Advocate General, Haryana for its onward transmission to the officials concerned, so that the needful is done in the aforesaid manner. Accordingly, the present peon stands disposed of. Pending applicaon (s), if any, shall also stand disposed of."
7. Pursuant to the aforesaid order of this Court, Naib Tehsildar Karnal along with the JE concerned conducted the demarcaon with the help of DGPS machine and found the area of the property in dispute to be
483.10 square yards. The Judgment Debtor then moved an applicaon under Order 26 Rule 10 (2) CPC for examinaon of the Local Commissioner and also Mr. Nin, Junior Engineer (Civil) Panchaya Raj, Karnal who had accompanied him. It was contended that 3 fixed points were not located as per the legal posion. It was also alleged that some area of the showroom was shown beyond the line of Khasra number in the site plan prepared by the Computer operator. Prayer was made by Judgment Debtor to examine the Local Commissioner i.e. Naib Tehsildar, Karnal as well as Mr. Nin, Junior Engineer (Civil) Panchaya Raj in the Court. Along with the said applicaon, the JD also filed certain quesonnaires to be put to the Local Commissioner and the Junior Engineer.
8. AAer taking reply from the Decree Holder, who opposed the applicaon, the same was dismissed by the execung Court by way of the impugned order.
9. Assailing the afore-said order, it is contended by the learned counsel for the peoner-Judgment Debtor that as per Order 26 Rule 10 (2) CPC, with the permission of the Court, any of the pares to the suit may examine the Commissioner personally in the open Court, touching any of the ma=ers referred to him or menoned in his report or as to his report or as to the manner in which he has made the invesgaon. Learned counsel contends that demarcaon has been conducted thrice. In the first demarcaon, the area was found to be 483 square yards; in the second Page No.4 out of 10 pages
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demarcaon, it was found to be 483.23 square yards, whereas in the third demarcaon, it has been found to be 483.10 square yards and in these circumstances and considering the objecons made in the applicaon, it is necessary to examine the Local Commissioner and the Junior Engineer accompanying him.
10. Opposing the peon, learned counsel for the respondent- decree holder submits that the only purpose of moving the objecons or this revision is to delay the proceedings. Learned counsel contends that suit was decreed in favour of the decree holder-respondent way back in 2017. The decree has a=ained finality up to this High Court, despite which the judgment debtor is creang all sorts of hurdles in execuon of the decree. Learned counsel contends further that the demarcaon, as per order dated 17.11.2022 of this court, has been conducted with the help of DGPS machine, which is quite accurate and that in the presence of the modern technology available, JD cannot ask for the demarcaon to be conducted as per the old methods by finding out the three pucca points. It is also the contenon of the learned counsel that it is not mandatory for the Execung Court to examine the Local Commissioner itself or on the asking of any of the party, unless the Court finds cogent reasons for doing so. Prayer is made for rejecng the peon.
11. This Court has considered the submissions of both the sides and has appraised the record carefully.
12. Order 26 Rule 10 CPC reads as under :
"10. Procedure of Commissioner.- (1) The Commissioner, aAer such local inspecon as he deems necessary and aAer reducing to wring the evidence taken by him, shall return such evidence, together with his report in wring signed by him, to the Court.
(2) Report and deposi1on to be evidence in suit.-
The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, Page No.5 out of 10 pages
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any of the pares to suit may examine the Commissioner personally in open Court touching any part of the ma=ers referred to him or menoned in his report, or as to his report, or as to the manner in which he has made the invesgaon.
(3) Commissioner may be examined in person.- Where the Court is for any reason dissasfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."
13. The use of the word "may" in sub-Rule 2 of Rule 10 of Order 26, as reproduced above would clearly indicate that it is not mandatory for the Court to examine the Local Commissioner. The Court is required to see as to whether there is some real ground for examining the Local Commissioner. It cannot be for some frivolous ground. The discreon lies in the Execung Court in a ma=er of this nature, as to whether it should permit or refuse a party to examine the Commissioner.
14. This Court in Roshan Lal vs. Jai Singh and others, 2015 (4) RCR (Civil) 1032, has held as under :-
"The Trial Courts are under severe strain for paucity of me and it is essenal for the Courts to adopt pracces which allow for their smooth funconing without faltering the course of trials in any way. If an objecon to local commissioner's report is made, the Court will examine the objecon along with other evidence by allowing pares to give evidence as regards the Commissioner's report and if need be to examine the local commissioner himself to elicit the objecons raised by the pares. It is important to remember that the local commissioner is not to be understood as witness for anyone party. The provisions of Order 26 Rule 9 that allows a person for inspecon of the property and give a report shall be understood in such a way that the Commissioner shall be seen as an extended arm of the Court and hence an officer of the Court. If neither of the pares have any objecon to the report, the Court will simply act on the report to the extent that the report is relevant for adjudicang on the controversy involved in the suit. However, if there is any objecon to the Commissioner's report, it will be considered by the Court only to sasfy Page No.6 out of 10 pages
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itself whether the objecon must prevail and if it holds so, it will be competent to reissue the commission to the same local commissioner or under extra-ordinary circumstances, opt for another local commissioner to be issued aAer scrapping the first report. The a=empt must be to ensure that there are no two conflicng versions through two different reports."
15. It is, thus, clear that the Local Commissioner appointed by the Court is not a witness for any of the party. In fact, he performs his duty as an extended arm of the Court and thus, for all intent and purposes, he is an Officer of the Court. In case either of the party raises objecon to the report of the Local Commissioner, it is to be considered by the Court only to sasfy itself whether the objecons must prevail or not. It is only if the Court finds sufficient grounds that it will be competent to re-issue the commission to the same Local Commissioner or under extra ordinary circumstances opt for another Local Commissioner to be issued aAer scraping the first report. Merely on the asking of an applicant, it is not mandatory to examine the Local Commissioner.
16. In this case, the Local Commissioner conducted the Commission as per the orders of this Court, with the help of DGPS system.
17. This Court, with the assistance of arficial intelligence with the help of Chat GPT, put the queson about the efficacy of the DGPS system in locang or demarcang a disputed property. It would be relevant to reproduce the queson put by this Court and the answers as received. It reads as under :-
"Ques1on by this court: How DGPS helps in locang or demarcang a disputed property?
Answer by Chat GPT: Differenal Global Posioning System (DGPS) is a highly precise posioning system that enhances the accuracy of standard GPS by correcng signal errors in real-me. Here's how DGPS helps in locang or demarcang a disputed property:
1. Enhanced Accuracy
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DGPS reduces errors caused by atmospheric interference, satellite clock inaccuracies, and mulpath effects, providing cen- meter-level accuracy.
This is crucial for determining exact property boundaries, es- pecially in legal disputes where precision is crical.
2. Reference Sta1on Support
DGPS uses a network of ground-based reference staons that compare GPS satellite data to known posions. These staons calculate correcon factors that are transmit- ted to a rover receiver (handheld or vehicle-mounted) at the site of the property.
3. Mapping and Surveying
Surveyors use DGPS to map out the exact coordinates of a disputed property.
The system integrates with Geographic Informaon Systems (GIS) to overlay the property boundary on to cadastral maps or satellite images for visual clarity.
4. Real-Time Posi1oning
DGPS provides real-me locaon data, enabling surveyors to confirm boundary markers directly on-site without the need for manual re-calculaons.
5. Boundary Dispute Resolu1on
In cases where the property boundaries are unclear, DGPS can be used to align with legal documents such as land deeds, cadastral maps, or government records.
This precise alignment helps to clarify any discrepancies, making it easier to resolve disputes.
6. Cost-Effec1ve and Time-Saving
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DGPS significantly reduces the me and cost compared to tradional land surveying methods.
Its efficiency is parcularly beneficial in large or inaccessible areas.
Applica1ons in Disputed Property Cases Verifica1on of Boundaries: Confirms if exisng boundary markers match the legal documentaon.
SeCng New Markers: Precisely places new markers in agree- ment with adjudicated boundaries.
Evidence in Legal Proceedings: DGPS data can be presented in court as evidence to support claims regarding property limits. By offering unmatched accuracy and reliability, DGPS is a valuable tool in resolving property disputes and ensuring clear and legally compliant boundary demarcaon."
18. It is, thus, clear that DGPS provides cenmeter level accuracy. It is crucial for determining exact property boundaries especially in the legal disputes, where the precision is crical. DGPS uses network of ground based reference staons that compare GPS satellite data to known posions. These staons calculate correcon factors that are transmi=ed to a rover receiver at the site of the property.
19. The system of DGPS so as to measure or locate or demarcate a property is the modern technology and with the passage of me, the old technology of demarcang the property with the help of finding three pucca points must give way to the modern technology, which helps to measure and demarcate the property with precision.
20. The Local Commissioner has found the exact area of the disputed property to be 483.10 square yard, which is just at a li=le variance from earlier reports, inasmuch as, the area in the first report was found to be 483 square yards and in second report, it was found to be 483.23 square yards. It is also relevant to menon here that Ld. counsel for the decree Page No.9 out of 10 pages
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holder-respondent submits that respondent is even ready to pay the balance amount as per the maximum area found in three reports i.e.
483.23 square yards but the only intenon of the peoner-JD is to delay the proceedings.
21. The above said contenon appears to contain force considering the fact that when inially the decree holder applied for appointment of the Local Commissioner to demarcate the property, JD preferred not to contest the ma=er and was proceeded ex-parte. It was only aAer the receiving of the first report that he moved applicaon to parcipate in the proceedings. He was allowed to do so. Second Local Commissioner was appointed and the same was conducted in the presence of both the pares. JD filed objecons and same were dismissed. Then he filed revision against the dismissal of objecons before this Court. The revision was accepted. Third commissioner was appointed, who conducted the commission with the help of DGPS system.
22. The objecons by the JD-peoner appears to have been moved only with the purpose of delaying the proceedings.
23. AAer considering all the facts and circumstances, this Court finds that the impugned order does not suffer from any illegality or perversity. The Execung Court has not commi=ed any error in exercising the discreon vested in it, by declining the request of the peoner to examine the Commissioner or the Junior Engineer, who had accompanied him at that me.
24. On account of the aforesaid discussion, the present revision is hereby dismissed, being devoid of any merits.
Pending applicaon (s), if any, shall also stand disposed of.
December 10, 2024 (DEEPAK GUPTA) Renu JUDGE
Whether Speaking/reasoned Yes Whether Reportable Yes Page No.10 out of 10 pages
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