SANJAY KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) The present revision petition under Article 227 of the Constitution of India has been preferred by the plaintiff-petitioner for quashing the impugned order dtd. 9/7/2019 (Annexure P-6) passed by the Civil Judge (Junior Division)-cum-Judicial Magistrate, Rohtak vide which the application for appointment of a Local Commissioner has been dismissed.

(2.) The brief facts relevant to the present lis are that the plaintiffpetitioner filed a suit for declaration along with consequential relief of mandatory injunction and permanent injunction to the effect that the plaintiff-petitioner purchased a plot measuring 25 sq. yards situated at Jhajjar Chungi Chowk vide sale deed dtd. 17/11/1999 comprised in khasra No.2406, 2419, moza Rohtak, Purani Jhajjar Chungi, Jhajjar Road near Kath Mandi, Rohtak and constructed a single storey shop on it as per site plan sanctioned by the Municipal Committee, Rohtak. The suit was further amended by mentioning the correct khasra no. i.e. 2416 and 2419 instead of 2406 and 2419. It was further pleaded in the plaint that the defendantrespondents without any prior notice came on the spot with bulldozers and with other equipments to demolish the shop of the plaintiff-petitioner on account of widening the road. The shop was demolished by the defendantrespondents without acquiring the same. It was further averred that the defendant-respondents had illegally demolished the shop of the plaintiffpetitioner situated in his own land, hence, the plaintiff-petitioner prayed in the suit that the defendant-respondents be directed to construct the shop of the plaintiff-petitioner as shown in the site plan in its original conditions as the same existed on or before 20/8/2002. During the course of the evidence, PW3-Shalender, SDC, PWD (B&R), Rohtak adduced his evidence and stated before the Court that the width of the road from North to South is approximately 66 ft. and width of road from east to west is 33 ft. and the department has no ownership excess to its land described in Ex.P19 and they are ready to give up the excess area after demarcation. Hence, the plaintiffpetitioner filed an application for appointment of a Local Commissioner to visit the spot and to demarcate the suit land and also to report about the existing state of affairs at the spot. The said application was contested by the defendant-respondents on the ground that the plaintiff-petitioner is required to prove his case by leading positive evidence and a Local Commissioner cannot be appointed in this case for collecting evidence on behalf of the plaintiff-petitioner. Vide the impugned order dtd. 9/7/2019 the said application was dismissed.

(3.) Learned counsel appearing on behalf of the plaintiff-petitioner has contended that the appointment of a Local Commissioner would be necessary in order to bring on record the existing position of the suit property and would assist in the proper adjudication of the suit.