NIMMI PARVEEN Vs. SHAHBAZ AHMAD

JUDGEMENT

(1.) PRESENT petition is filed assailing the order dated 26.08.2014, passed by the District Judge, Almora in first appeal being Civil Appeal No. 10 of 2014, whereby the application moved by the defendant / appellant / petitioner, herein, Paper No.12 Kha on the record of the Appellate Court, for appointment of Survey Commissioner to submit his report as to whether constructions in question are standing over Khasra No. 624 or Khasra No. 621 was rejected.

(2.) BRIEF facts of the present case, inter alia, are that plaintiff/respondent, herein, filed a suit for possession against the defendant/petitioner, herein, seeking possession from the defendant/petitioner, herein, over the constructions standing on Khet No. 621, Patti Khasparja, District Almora. During the pendency of the suit, defendant moved an application seeking amendment in the written statement to incorporate the pleading to the effect that constructions in possession of the defendant are situated in Khasra No. 624 and no part of the construction is situated in Khasra No. 621, allegedly purchased by the plaintiff. Amendment application so moved by the defendant/petitioner, herein, was rejected by the Trial Court. Against the rejection of the amendment application, defendant/petitioner, herein, filed a civil revision. During the pendency of civil revision, suit itself was decreed by the learned Trial Court, vide judgment and decree dated 31.03.2014. Consequently, civil revision assailing the order of the trial court rejecting the amendment application had rendered infructuous and was dismissed. Thereafter, defendant/petitioner, herein, preferred first appeal being Civil Appeal No. 10 of 2014. During the pendency of the appeal, defendant/appellant/petitioner, herein, moved an application under Order 26 Rule 9 C.P.C. for appointment of Survey Commissioner to find out as to whether constructions are standing over Khasra No. 624 or Khasra No. 621. Application so moved by the defendant/appellant/petitioner, herein was rejected by the learned Appellate Court, vide impugned Order dated 26.08.2014. Feeling aggrieved, defendant / appellant / petitioner, herein, approached this Court invoking Article 227 of the Constitution of India.

(3.) I have heard Mr. R.C. Joshi, learned counsel for the petitioner and Mr. I.P. Kohli, learned counsel for the respondent, and have carefully perused the record.