Happy neighbors are all alike, every unhappy neighbor is unhappy in its own way. That unhappiness often finds its painful way into a courtroom.

Land has always been a contentious issue, may be due to greed, power, mistake or otherwise.

Boundary disputes are since beginning of civilization. There are boundary disputes not only between the neighboring countries but also between the states in respective countries, between two civic bodies and between the neighbors, co-owners and so on.

Historically battles have been fought for boundary disputes regarding borders and even at present the boundary dispute between India and China has resulted into war like situation, where China wants to lay false claim over land belonging to India, which illegal action of China has been thwarted by our brave soldiers.

The present topic relates to boundary disputes, which has resulted into flood of litigation in courts for decades.

Dispute about the boundaries of respective land vis-a-vis ownership or possession is general bone of contention and when comes in the court, takes years to resolve as a result of procedural technicalities and often remains unresolved for want of proper evidence.

Often, it is seen that suit for possession against the unauthorized occupant/trespasser or by a owner against his neighbor, who has mistakenly or otherwise has occupied some portion of land is dismissed, because of insufficient evidence and exact demarcation with regard to encroached portion, which results in miscarriage of justice.

Although, the party to the suit can file an application for appointment of local commissioner under order 26 rule 9 of Code of Civil Procedure (C.P.C), which provision gives discretionary power to court to order a local investigation ( by way of appointment of local commissioner) to be requisite or proper for the purpose of elucidating any matter in dispute. Further order 26 rule 10 CPC provides for procedure of commissioner and that his report and depositions to be evidence in suit.

The real Hercules task is to get the appointment of local commissioner, as the discretion of appointment of local commissioner is seldom used by the court on the ground that:
It is settled principle of law that he, who alleges, must prove initially that such and such things are in existence. This is not the duty of the court that it should appoint Local Commissioner and then identify which part has been encroached upon.

The courts are not to help the plaintiff or the defendant for collecting evidence available for that purpose. It is duty of the parties to lead substantive evidence in that regard. However, when there is dispute regarding certain evidence and existence of some facts, only then court can appoint Local Commissioner. Here is a case where the petitioner wants that evidence should be collected for him by the court by appointing Local Commissioner, which cannot be allowed.

Hon'ble Supreme Court in Haryana Waqf Board v. Shanti Sarup and others, (2008) 8 SCC 671 has held that Local Commissioner can be appointed only to clarify the position of the existing state of affairs only after the evidence is led.( Jagmohan vs Ramesh Kumar: 2013(15) RCR(Civil) 464)

It was for the petitioner-defendant to show that he is in possession of the property in dispute, which was handed over to him at the time of registration of sale deed, as per his assertions. Court is not to collect evidence for the parties and hence, Local Commissioner cannot be appointed to report as to who is in possession of the property in dispute. Smt. Ulfat vs Hardeep Singh: 2012(5) RCR(Civil) 753.

Even, the party who wants to get the local commissioner appointed, looses right to file revision challenging the order declining the appointment of local commissioner. It has been held:-
it is settled principle that against an order declining the appointment of a Local Commissioner, a revision petition is not maintainable. Two Division Bench judgments of this Court have held to the said effect in Harvinder Kaur v. Godha Ram ILR 1979 (1) P&H 147 and Pritam Singh & another v. Sunder lal & others 1990 (2) PLR 191.

The said view has also been followed by two Single Judge Benches of this Court in Sumer Chand Jain v. Vishnu Bhagwan Mangla 2006 (2) RCR (Civil) 445 and Rajiv Kumar Batra v. Kashmiri Lal Sika, to the effect that merely because a revision petition has been filed under Article 227 of the Constitution of India, the binding precedent of the Division Benches cannot be wished away.(Harbhajan Singh & another vs Gurmail Singh & others: 2015(9) RCR(Civil) 163).

Even in boundary disputes regarding identification of the boundaries between the states of Nagaland, Assam and Arunachal Pradesh , the Hon,ble Supreme Court of India appointed Local Commissioner with the consent of said states. (State of Assam vs Union of India & others: 2010(9) SCC 278)

There is complete chapter in the rules and orders of Punjab and Haryana High Court, with regard to mechanism for resolving the Hadd-Shikni suits and other suits of boundary disputes of land, which, if followed in its true letter and spirit would result in resolution of such disputes.

Although for Hadd-Shikni suits and other suits of boundary disputes of land falling within the jurisdiction of a Civil Court, it is generally desirable that enquiry be made on the spot and proper procedure to be followed by the local commissioner has been incorporated in the rules and orders of Punjab and Haryana High Court, but, the same is seldom exercised on the ground that the courts cannot collect the evidence for the parties.The said provision has been applied in a number of cases i.e

• Baraham Sarup vs Gagandeep & others:2019(1) PLR 741,
• Ram Murti Goyal vs Smt. Basant Kaur:1991(2) RRR 142).

For a perusal, the volume 1, chapter 1, part M, clause (i) of the rules and orders of Punjab and Haryana High Court is reproduced as under:

1. Procedure in Hadd Shikni cases.
   In Hadd-Shikni suits and other suits of boundary disputes of land falling within the jurisdiction of a Civil Court it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways:
   
   1. by suggesting that one party or the other should apply to the Revenue Officer to fix the limits, under section 101 (1) of the Punjab Land Revenue Act. Time for such purpose should be granted under Order XVII, Rule 3, of the Code of Civil Procedure;
   2. by appointing a local Commissioner, and
   3. by the Court itself making a local enquiry.
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2. An order of the Revenue Officer made under Section 101 of the Land Revenue Act is not conclusive; but when his proceedings have been held in the presence of, or after notice to, the parties of the suit, and contain details of enquiry and of the method adopted in arriving at the result, it would be a valuable piece of evidence. It may be noted that an Assistant Collector of the second grade can deal with cases in regard to boundaries which do not coincide with the limits of an estate.
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3. Similarly the report of the local Commissioner should contain full details so that the Court may satisfactorily deal with the objections made against it.
   Instructions for the guidance of commissioners.
   
   No person other than a Revenue Officer (or retired Revenue Officer) not below the rank of a Field Kanungo should usually be appointed a local Commissioner. The appointment of retired Revenue Officers is to be preferred as these Officers have the spare time and the inclination for completing the work with expedition.
   
   A commission issued to a Revenue Officers in service necessitates the obtaining of permission of the higher authorities and this along with the fact that such Revenue Officers are usually busy often results in delay in the disposal of the case. The wishes of the parties in regard to the appointment of a particular individual as commissioner for local investigations should be taken into consideration while making such appointments.
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4. On the motion of the Judges, the Financial Commissioners have issued the following detailed instructions for the guidance of Revenue Officials or Field Kanungos appointed as Local Commissioners in Civil suits of this nature.
   
   (Financial Commissioner's Instructions)
   
   1. If a boundary is in dispute, the Field Kanungo should relay it from the village map prepared at the last Settlement. If there is a map which has been made on the square system he should reconstruct the squares in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares. He should with his scale read on the map, the position and distance of those points from a line of a square, and then with a chain and cross staff mark out the position and distance of those points. Thus he can set out all the points and boundaries which are shown in the map.
      
      But if there is not a map on the square system available, he should then find three points on different sides of the place in dispute, as near to it as he can, and, if possible, not more than 200 kadams apart which are shown in the map and which the parties admit to have been undisturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances, when thus compared, agree in all cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. He will then, lay them out with the cross-staff as before and test the work by seeing whether the distance from one of his marks to another is the same as in the map.
      
      If there is only a small dispute as to the boundary between two fields the greater part of which is undisturbed then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map.
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   2. In the report to be submitted by him, the Field Kanungo must explain in detail how he made his measurements. He should submit a copy of the relevant portion of the current Settlement field map of the village showing the fields, if any, with their dimensions (karu kan) of which he took measurements, situated between the points mentioned in Instruction No. (i) above and the boundary in dispute. This is necessary to enable the Court to follow the method adopted and to check the Field Kanungo's proceedings.
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   3. If a question is raised as to the position of the disputed boundary according to the field map of the Settlement preceding the current Settlement, that also should be demarcated on the ground, so far as this may be possible, and also shown in the copy of the current field map to be submitted under Instruction No. (ii)
   4. On the same copy should be shown also, the limits of existing actual possession.
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   5. The areas of the fields, abutting on the boundary, in dispute, as recorded at the time of the last Settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Field Kanungo's report with an explanation of the cause or causes of the increase or decrease, if any, discovered.
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   6. When taking his measurements the Field Kanungo should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to elucidate the matter in dispute. At the end, he should record the statements of all the parties to the effect that they have seen and understood the measurements that they have no objection to make to this (or if they have any objection he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court, one or other party impugns the correctness of the measurements and asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent.
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   7. The above instructions should be followed by Revenue Officers or Field Kanungos whenever they are appointed by a Civil Court as Commissioners in suits involving disputed boundaries.
      
      To my mind, the law needs re-visitation by keeping the technicalities aside. Procedural law is handmaid of justice and should not be overcome by technicalities.
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When there is a dispute regarding the identification of the property, the proper course is to appoint local Commissioner by invoking the provision of order 26 rule 9 of Code of Civil Procedure(C.P.C), particularly a revenue official or an expert for demarcation( as per the Procedure in Hadd Shikni cases contained in the volume 1, chapter 1, part M, clause (i) of the rules and orders of Punjab and Haryana High Court) of the suit property to properly adjudicate the real question in controversy between the parties and for doing substantial justice between the parties.
There is no question of collecting the evidence for the parties by way of appointment of local commissioner, but for doing substantial justice between the parties and so that the justice is not only done but appears to have been done.

If the controversy can be resolved in a simplified manner, then why to undergo the huge exercise of leading the voluminous and tiring oral evidence, which evidence is generally ignored for want of substantive evidence.

A party may not have resources to collect evidence as a result of illiteracy, economic inability, week social support and for any other reason due to which the other party has a strong edge over him, can the court, which is a temple of justice, shut its eyes to let the injustice happen, the answer is and should be no.

What prejudice is to the party opposing the appointment of local commissioner, when the cost of appointment is to be borne by the party seeking appointment and if the revenue official or any other expert visits the spot to find out the actual position, the same will result in real and substantial justice and cannot amount to collection of evidence for any party.

There should be real justice by way of resolution of dispute and not mere decision, as simplicitor decision is not always doing substantial justice.

Justice should not only be done but seems to have been done.

The right will be right and wrong will be wrong and after all let the right win & truth prevail.

Written By: Advocate Chandigarh Rajinder Goyal - Former Addl. Advocate General, Punjab
P/676/1992, Punjab & Haryana High Court, Chandigarh