Kashmir Singh vs Mukhtiar Singh

Deepak Gupta, J.—This petition is directed against the order dated 10.09.2009 whereby the application filed by the Petitioner for appointment of the Local Commissioner was rejected.

Briefly stated the facts of the case are that the Petitioner filed a suit praying that a decree for permanent prohibitory injunction be passed restraining the Defendant either directly or through his agents, servants or assigns from raising any construction or changing the nature of the suit land or making a road/passage over the suit land comprised in Khata No. 25 min, Khatoni No. 27 min, Khasra No. 703/540 measuring 24 kanals.

The stand of the Defendant was that whatever construction he was raising and road he was constructing was not over the land of the Plaintiff but over the land owned and possessed by him in Khasra No. 702/540 measuring 7 kanals and 9 marlas. The Defendant clearly stated that he had nothing to do with Khasra No. 703/540. Evidence was led by both the parties and when the case fixed for arguments an application was filed by the Plaintiff on 25th April, 2009 in which it was alleged that in the first week of April, 2009 the Defendant had forcibly occupied a portion of the suit land and put a fence over the said portion of the suit land. He prayed that a Local Commissioner be appointed to demarcate the land. This application has been rejected primarily on the ground that a Local Commissioner cannot be appointed at this belated stage and allowing the application which permit the Plaintiff to fill up the lacunae in his evidence.

I am afraid that the reasoning given by the learned trial Court is not at all rational. The allegation of the Petitioner is that the Defendant encroached upon the suit land in the first week of April, 2009. This allegation may be right or wrong but the fact is that the application was filed within 2/3 weeks of the alleged encroachment. Furthermore, even now the stand of the Defendant-Respondent is that he has nothing to do with the land of the Plaintiff and whatever construction he is raising is on the land owned and possessed by him. The question as to whether any construction has been raised by the Defendant on the land of the Plaintiff or whether the Defendant has taken possession of any portion or the suit land cannot be decided without appointing a revenue expert to demarcate the land in question. This is a boundary dispute between the parties and therefore, it is necessary to appoint a Local Commissioner.

In view of the above discussion, the petition is allowed. The learned trial Court is directed to appoint a suitable Local Commissioner and fix his remuneration. The Local Commissioner should be directed to submit his report within three months from today. The Plaintiff is directed to appear before the learned trial Court on 22nd November, 2010. The Registry shall ensure that the record of the trial Court is sent back to the learned trial Court so as to reach well before the date fixed. The petition is disposed of in the aforesaid terms. No order as to costs.