BALJINDER SINGH Vs. SUKHDEV SINGH

JUDGEMENT

(1.) The Defendant has challenged order dated 26.2.2010 passed by Civil Judge (Junior Division), Amritsar by which an application filed by the Plaintiff under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (for short Code of Civil Procedure) for the appointment of the Local Commissioner has been allowed.

(2.) In brief, case of the Petitioner is that Respondent/Plaintiff has filed a suit for permanent injunction against the Petitioner/Defendant seeking to restrain him from interfering in his possession over the suit land alleging that he has constructed khurlies/Mangers, Water tank in the suit property and has also planted several trees. The suit property is allegedly being used for tethering cattle and storing manure. In the written statement, it is alleged that the suit land was owned by Jumla Malkhan of village Khankot who had transferred it in the name of department of Animal Husbandry, Punjab vide registered gift deed dated 29.7.1999 and since then it is owned and possessed by the said department, who had constructed two rooms, varandah etc. for the purpose of running Civil Animal Husbandry Dispensary. The Plaintiff/Respondent did not file any replication. It was also averred that the Plaintiff has deliberately impleaded the Petitioner as the only Defendant in the suit with ulterior motive to obtain an ex parte order as the Petitioner is a resident of Canada. However, a co-villager has filed an application under Order 1 Rule 10 of the Code of Civil Procedure in order to protect the interest of the village and the said application is still pending. During the pendency of the suit, an application under Order 26 Rule 9 was filed by the Plaintiff/Respondent on 15.6.2009 for appointment of a local commissioner by the Court to ascertain actual and factual position on the land in dispute. The said application has been allowed by the Court vide its impugned order dated 26.2.2010 and Sh. Ravinder Singh Baweja, Advocate has been appointed as a Local Commissioner.

(3.) In the present revision petition, the whole grievance of the Defendant/Petitioner is that the local commissioner cannot be appointed in order to collect evidence for the Plaintiff for the purpose of proving his possession. In this regard, learned Counsel for the Petitioner has relied upon a decision of the Madras High Court in the case of Chandrasekaran and Ors. v. Doss Naidu,2005 4 RecCivR 456, decision of this Court in the case of Vinod Kumar v. Gram Panchayat of Village Kheri Naru and Ors.,2008 1 RecCivR 697 and a decision of the Madhya Pradesh High Court in the case of Ashutosh Dubey and Anr. v. Tilak Grih Nirman Sahkari Samiti and Anr.,2004 4 RecCivR 79