Hukam Chand vs Trahru Ram

Deepak Gupta, J.—This petition under Article 227 of the Constitution of India is directed against the order dated 31.12.2009 passed by the learned Civil Judge (Jr. Division), Court No. 4, Mandi whereby the application filed by the Petitioner (hereinafter referred to as the ''Plaintiff'') for appointment of Local Commissioner has been rejected.

Briefly stated the facts of the case are that the Plaintiff filed a suit for permanent prohibitory and mandatory injunction claiming that he is owner in possession of the suit land and that the Defendant has no right, title or interest in the same. It was further claimed that on 1.7.2008, the Defendant started digging the suit land with the intention of constructing a cowshed over it. Hence the suit was filed by the Plaintiff.

The suit was contested by the Defendant and according to the Defendant, he was constructing his cowshed on his own adjoining land but not on the suit land. In fact, the case of the Defendant was that a cowshed already existed on the spot and he had only carried out some repairs and renovation much prior to the filing of the suit.

The Plaintiff filed an application under Order 26, Rule 9, CPC stating that on 8.6.2009 when he went to the suit land, he came to know that the Defendant had sown his maize crop over the suit land and had also extended the cowshed over the suit land and covered more area thereunder. It was alleged that this was done in violation of the stay order and, therefore, it was prayed that a Local Commissioner be appointed to carry out demarcation and to report whether the Defendant had encroached upon the suit land and if so, to what extent. The Defendant contended that the cowshed is on his own land.

The learned Trial Court held that there was already a demarcation report concerning the suit land prepared by the revenue officials and, therefore, there was no need to appoint a fresh Commissioner. It is apparent from the record that there is already a demarcation report, Ext. DA on the case file. The case of the Plaintiff is that fresh demarcation is required since the Defendant has changed the construction after the previous demarcation report. This is a case which must be proved by the Plaintiff himself. When there is already a demarcation report unless the same is set aside there is no need for appointment of fresh Local Commissioner. Therefore, I find no merit in the petition which is accordingly rejected. No order as to costs.