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
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
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
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
Hon'ble Supreme Court in Haryana Waqf Board v. Shanti Sarup and others
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
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)
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
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:
- Baraham Sarup vs Gagandeep & others:2019(1) PLR 741,
- Ram Murti Goyal vs Smt. Basant Kaur:1991(2) RRR 142).
- 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:
- 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
- by appointing a local Commissioner, and
- by the Court itself making a local enquiry.
- 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.
- Similarly the report of the local Commissioner should contain full
details so that the Court may satisfactorily deal with the objections made
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.
- 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)
- 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.
- 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.
- 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)
- On the same copy should be shown also, the limits of existing actual
- 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,
- 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.
- 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
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
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.
Chandigarh Rajinder Goyal -
Former Addl. Advocate General, Punjab
Punjab & Haryana High