Roshan Lal vs Jaimal Chand

Surinder Singh, J.—The petitioner in Civil Suit No. 4 of 2011 pending before the learned trial Court seeking relief of permanent injunction qua the suit land, had moved an application (CMA No. 291 of 2011) before framing the issues for the appointment of the Local Commissioner under Order 26 Rule 9 of the Code of Civil Procedure. The application was resisted and contested by the defendant-respondent in his written statement as well as reply to the said application submitting that his land is adjoining to the suit land. He had also obtained the demarcation of his land in the presence of the plaintiff, however, neither he has caused any interference nor encroached upon the land of the plaintiff, as alleged.

In replication to the written statement, the plaintiff came out with a plea that the defendant-respondent had encroached upon a portion of his land by raising construction. He had also uprooted and destroyed the survey marks.

On considering the rival contentions, the application for appointing the Local Commissioner was dismissed by the learned trial Court against which the present petition under Article 227 of the Constitution of India has been preferred.

Shri Pratap Singh Goverdhan, learned counsel for the petitioner submitted that plaintiff cannot seek the relief of possession unless the area encroached upon by the defendant is demarcated by a revenue expert. In my considered opinion, the petitioner herein could have obtained the demarcation from the revenue agency independently with respect to the alleged encroachment and sought amendment in plaint for appropriate relief after affixing the court fee and first adduce evidence in respect of claim, to warrant the appointment of a Local Commissioner. The perusal of record shows that the suit land was already got demarcated by the defendant in the presence of the petitioner, which fact, as alleged by the defendant-respondent, has not been denied. The plaintiff/petitioner did not dispute this fact and the allegation made by him in the application is without any substance. The learned trial Court, in such a situation is justified not to issue the commission for the purpose, as the Court should not be the means to collect the evidence for a particular party. Therefore, I find no illegality or error of jurisdiction in the impugned order, hence the petition is dismissed in liminie, so also the pending application(s), if any.