KANIHAIYALAL Vs. INDRABAI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been preferred by the plaintiff/petitioner being aggrieved by the order dtd. 24/1/2024 passed by the trial Court whereby his application under Order 26 Rule 9 of the CPC for appointment of a local Commissioner had been rejected.

(2.) The suit has been instituted by the plaintiff for declaration of title in respect of survey No.311 Gram Guradiyanarsingh, Tehsil Garoth, District Mandsaur. As per the plaintiff, he and defendant No.1 are adjoining land holders with defendant No.1 being the owner of survey No.312. Earlier there was a civil suit between the parties which was disposed off as compromised as per which demarcation had to be carried out. Thereafter survey No.312 has been sold as per the boundaries mentioned in the sale deed. However the boundaries of the lands of the parties do not match due to which the sale deed executed in favour of defendants 2 and 3 by defendant No.1 is void. Demarcation has been carried out on 16/6/2018 but the defendants are not accepting the same.

(3.) Written statement has been filed by defendants from which it is observed that they have pleaded that they are in possession over their own land and are not encroaching over any land of the plaintiff. The demarcation which was got done by the plaintiff was without their knowledge. However in paragraph No.6 of the written statement defendant No.1 has specifically stated that demarcation should be got conducted in presence of the parties by a competent authority in which case defendants would not have any objection to the same.