SHIVNARAYAN Vs. SHYAMLAL

JUDGEMENT

(1.) Petitioner/plaintiff has filed this present petition being aggrieved by order dtd. 9/9/2022 whereby application filed under Order 26 Rule 9 of the CPC has been dismissed. The petitioner/plaintiff filed the suit in respect of the suit land mentioned in paragraph No.2 of the plaint. According to the plaintiff, the defendants/respondents has encroached over some part of the land of his ownership. The petitioner/plaintiff applied for demarcation which was conducted by the Tehsildar and the possession of defendant was found hence that gave the cause of action to file the suit for possession.

(2.) The defendants have filed a written statement denying the averment made in the plaint, they have also denied the demarcation as well as the report submitted by the revenue authorities. Before adducing the evidence, the plaintiff has filed an application under Order 26 Rule 9 C.P.C. seeking direction for demarcation of the suit land bearing survey No.201/1/2 area 1.0110 Hectare through any revenue authorities. The application was opposed by the defendants and the learned Court has dismissed the application on the ground that the said provision cannot be invoked for the collection of the evidence hence, this petition before this Court.

(3.) Shri Manish Kumar Vijaywargiya, learned counsel for the petitioner/plaintiff submits that the entire suit is based on the allegation of encroachment and the report of the demarcation given by the Revenue Officer but the respondents/defendants are disputing the same, therefore, the Court must appoint a Commissioner in order to adjudicate the controversy between the parties.