VISHAL SAHU Vs. SHARDA PRADAD

JUDGEMENT

(1.) Present petition has been filed under Article 227 of the Constitution of India being aggrieved by the order dated 15.02.2021 passed in RCS No. 27-A/2018, whereby the application filed by the respondent/defendant under Order 26 Rule 9 of CPC for the purpose of appointment of Commissioner has been allowed without consideration of the fact and circumstances of the case that facts which can be proved by way of evidence (Ocular and Documentary) in such cases, appointment of Commissioner is not required.

(2.) The petitioners filed a Civil Suit for the purpose of declaration of title, permanent injunction and the possession of the land bearing Survey No. 8/120, area as mentioned in para 1 of the plaint alleging that same disputed land was purchased by father of the petitioners through registered sale deed dated 12.03.1968 from the person namely Baldev. Thereafter, they got entered their name in Revenue record and on the some part of the disputed land petitioners constructed their residential house and some portion of the land was left vacant.

(3.) According to the petitioners their name was registered in Khasra and they were in continuous possession of the same land but the respondents started encroaching upon the petitioner's vacant portion of the property in question and also encroached over the road which is adjacent to the house of the petitioners. The respondents/defendants have filed the written statement and also preferred an application under Order 26 Rule 9 of CPC for the purpose of appointment of Commissioner for local investigation (demarcation of property in question). A reply to the said application was filed by the petitioner/plaintiff opposing the said prayer and stated that the facts can be proved by way of evidence and therefore, appointment of Commissioner is not required. The learned trial Court by the impugned order passed the order for appointment of the Commissioner, which is contrary to law.