Gajjan vs Nageshwar Dutt

Deepak Gupta, J.—This petition is directed against the order dated 16.6.2010 passed by the learned Civil Judge, Senior Division, Court No. 1, Sunder Nagar, rejecting the application filed by the present petitioner (herein-after referred to as the defendant) for appointment of revenue expert to demarcate the land between the parties.

The brief facts of the case are that the respondent (here-in-after referred to as the plaintiff) filed a suit that he is owner of Khasra No. 616 and that the defendant has encroached upon the land of the plaintiff. The stand of the defendant is that he had raised construction on his own land on Khasra No. 644 and has not raised any construction on Khasra No. 616. It is also the case of the defendant that between these two Khasra numbers there is a Nallah which exists at the spot. The plaintiff examined the Kanungo as PW-3, who proved the demarcation report Ext.P-5. This demarcation report has till now not been found to be correct or incorrect. In view of the fact that there is a demarcation report already on the record of the learned trial Court no fresh Local Commissioner can be appointed unless it is found that the demarcation report given by PW-3 is incorrect. Therefore, this petition is rejected.

It is, however, made clear that if at the time of arguments the learned trial Court finds that the report Ext.P-5 does not depict the correct facts or that the demarcation has not been conducted as per the standing instructions of the Financial Commissioner or has to be set-aside for any other reason then the learned trial Court shall consider the question of appointing a new Local Commissioner even without any application being moved because admittedly the dispute between the parties is a boundary dispute. With these observations the petition is dismissed in limine. No order as to costs.