SHIVJI Vs. SALAGRAM

JUDGEMENT

(1.) The petitioners have filed the present petition being aggrieved by the order dated 24.09.2018, whereby the application filed under Order 26 Rule 9 of the CPC has been rejected.

(2.) The respondent No.1 filed a suit for declaration and permanent injunction. According to the plaintiff he is owner of the land bearing Survey No.381 (area 2.916 hectare). He has alleged that he is having dispute of boundaries with the defendants and demarcation was done on 25.10.2015 in which the defendant No.1 has been found in possession of land 16200 sq.ft belonging to the plaintiff and despite that he did not removed the encroachment, hence, relief for declaration and permanent injunction has been sought. The defendants appeared and filed the written statement that they have been declared owner of land bearing Survey No.378/1 area 7.473 hectare by the judgement and decree dated 16.01.202, passed in the civil suit No.31-A/2001. Thereafter, defendant No.1 during his lifetime has partitioned the land between his son on 15.03.2003. They have not encroached over any land belonging to the plaintiff. The demarcation done on 25.10.2015 was not legal. Defendants have also got mutation done on 20.05.2016 and it was found that they are in possession over land bearing Survey No.378/1 area 7.473.

(3.) The plaintiff filed the application under Order 26 Rule 9 of the CPC seeking demarcation by way of commercial which has been rejected by the trial Court. During the evidence of the plaintiff, the defendants have filed an application under Order 26 Rule 9 of the CPC which has also been rejected by order dated 24.09.2018. Hence, present petition.