Mukand Lal and anr. vs Darshan Singh and ors.

J.V. Gupta, J.

This petition is directed against the order of the trial Court dated 25th February, 1986 whereby the application for appointment of the Local Commissioner had been dismissed.

The plaintiffpetitioner filed the suit for permanent injunction on 13th October, 1984. Vide order dated 20th August, 1985, the plaintiffs were granted last adjournment for producing their evidence. At that time they moved an application for appointment of the Local Commissioner to find out as to whether the disputed portion is part of the property of khasra No. 1437. This application was contested by the defendants. The trial Court found that earlier also the plaintiffs had moved an application for appointment of the Local Commissioner which was decided on 13th October, 1984. However, at that time there was no dispute regarding demarcation of the suit property nor any such prayer was made by the plaintiffs when the previous application was filed. In any case it was further found that:

"So it seems that the plaintiff wants to prolong the case on one pretext or the other. The appointment of the Local Commissioner is not essential in this case."

In view of these findings the application was dismissed.

The learned counsel for the petitioners contended that vide order dated 13th October, 1984 the Local Commissioner was appointed only to find out as to which party was in possession of the suit property. There was no question of appointment of Local Commissioner for demarcation. Thus argued the learned counsel that the view taken by the learned trial Court was based on wrong facts and, therefore, the order was vitiated. In any case, the learned counsel argued that the impugned order be set aside and the case be sent back for deciding the same afresh. It was also contended that when there is a dispute as to whether the defendants have encroached upon Khasra No. 1437 or not,this could be decided only by making measurement at the spot for which purpose it was necessary to appoint a Local Commissioner. In support of this contention he referred to Pohlu Ram v. Gram Panchayat Dharamgarh alias Badowal, 1980 P.L.J. 24. On the other hand, the learned counsel for the respondents submitted that no revision petition was maintainable against the order declining the application for appointment of the Commissioner as it was not a case decided as contemplated under section 115, Civil Procedure Code. In support of this contention, he referred to a Division Bench judgement of this Court reported in Smt. Harvinder Kaur and another v. Godha Ram and another, 1979 P.L.J. 562.

After hearing the learned counsel for the parties, I find force in the contention raised on behalf of the respondents. In view of Smt. Harvinder Kaur''s case (supra), no revision is maintainable against the order passed under Order 26 Rule 9, Civil Procedure Code, refusing to appoint the Local Commissioner as it is not a case decided as contemplated under Section 115, Civil Procedure Code. Even if it be assumed that the earlier order dated 13th October, 1984 did not relate to the appointment of the Commissioner for demarcation even then the trial Court has further found that the appointment of the Local Commissioner is not essential in this case. That being the finding, no revision petition is competent against such an order. Consequently, the revision petition fails and is dismissed with costs.