Abhey Ram and Others vs Smt. Pinki and Another

L.N. Mittal, J.—By filing this revision petition under Article 227 of the Constitution of India, defendants have assailed order dated 04.09.2013 passed by the trial court, thereby dismissing application (Annexure P-2), filed by the defendants for appointment of Local Commissioner. Respondents/plaintiffs have filed suit alleging themselves to be owners in possession of the suit property, whereas defendants have alleged themselves to be owners in possession thereof. Defendants alleged in the application Annexure P-2 that it is necessary to appoint Local Commissioner to ascertain existing position of the suit property. Accordingly, appointment of Local Commissioner was sought to report not only about existing position of the suit property, but also about possession thereon and also to prepare correct site plan with measurements of the suit property.

Plaintiffs, by filing reply (Annexure P-3), opposed the application and controverted the averments made therein.

Learned trial court, vide order Annexure P-1, has dismissed application (Annexure P-2) filed by the defendants, who have, therefore, filed this revision petition to assail the said order.

I have heard counsel for the petitioners and perused the case file.

Counsel for the petitioners contended that appointment of Local Commissioner is necessary to ascertain existing position and measurements of the suit property. The contention cannot be accepted. In application (Annexure P-2), there is not even a word to the effect that there is any dispute regarding existing position of the suit property or regarding measurements thereof. On the contrary, the plaintiffs, in their reply (Annexure P-3), have specified the measurements of the suit property claimed by them. In fact, under the garb of Local Commissioner, the defendants wanted a finding by the Local Commissioner regarding possession of either party on the suit property. However, no such power can be delegated to the Local Commissioner to determine as to which party is in possession of the suit property. It is the function of the Court to determine the said question. In fact, possession of either party over the suit property is the core question to be determined in the suit by the Court. Consequently, appointment of Local Commissioner has been rightly declined by the trial court. It may be mentioned that the instant application (Annexure P-2) was filed by the defendants when the case was fixed for their evidence. In other words, the plaintiffs have already concluded their evidence. The application was also thus filed at belated stage to create evidence. For the reasons aforesaid, I find that there is no perversity, illegality or jurisdictional error in the impugned order of the trial court so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is sans any merit and is accordingly dismissed in limine.