IN THE SUPREME COURT OF INDIA 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

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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

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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

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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.

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[TARUN CHATTERJEE]

New Delhi;     …………………………………………J. July 16, 2008.  [J.M.PANCHAL]

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