DEEPAK NARULA Vs. SHRI SATRUHAN DWIVEDI AND ORS.

JUDGEMENT

(1.) The revision petition is against an order rejecting an application for appointment of Local Commissioner sought at the instance of the defendant who was resisting an action for declaration and injunction sought by the plaintiff in relation to property described within the boundaries as falling in khasra No. 67/13 in an extent of 200 sq. yards with electric connection. The contention in defence was that the defendant has purchased the property in khasra No. 67/9/2 and is interested only in such property and the defendant is not interested in any property in khasra No. 67/13. Having regard to the nature of defence that the defendant is interested in yet another khasra No. but the plaintiff was making it appear as though the defendant was interfering with the plaintiffs own property in the particular khasra No. falling within the boundaries, he had sought for a Commissioner's appointment to identify the property with reference to respective khasra numbers. The Court has rejected the application. When an injunction is sought through a sale deed with relief of declaration through sale deed containing reference to khasra No. and boundaries and it is, sought to be contended that the defendant was trying to prevent the plaintiff from putting up construction in his own property and the defence was that he was interested in some other khasra number, to identify the property with reference to khasra number obtains a sure relevance. Learned counsel for the respondent points out to me that in the event of discrepancy between khasra numbers and boundaries, boundaries will prevail. I have no difficulty in accepting the proposition, if the plaintiff had also gone to court to contend that the khasra numbers mentioned in his sale deed and in the plaint were wrong that he was actually making his claim to right with reference to a property that should be identified by boundaries whatever khasra number was. On the other hand, there is no such plea by' the plaintiff that there is any discrepancy in his own sale deed or in the description of property in suit, that there exists any discrepancy between khasra numbers and boundaries. If the defendant must be fended off against any interference to the plaintiff, it could be made only if the plaintiff proves his possession in khasra number mentioned in the plaint. The Local Commissioner's report with the assistance of the Kanungo will come a long way to resolve the dispute between the parties.

(2.) Learned counsel for the respondents points out to me that authorities exist that if a trial court rejects a plea of appointment of a Commissioner it will not be interfered in revision by the High Court. There can be no rule of thumb that all applications for Commissioners must attain finality only at the trial Court and the correctness will not be tested before the High Court. The jurisdictional ambit of the High Court in revision is wide enough to admit of any examination of incorrect order or pass any order or direction in its supervisory jurisdiction to see that any irregularity is not committed and justice is property done. I would see such an occasion arising in this case of where the Court ought to have appointed the Local Commissioner to identify the property with reference to two khasra numbers respectively claimed by the plaintiff and the defendant.

(3.) The impugned order is set aside and the revision is allowed. The Court below will appoint a Local Commissioner to carry out an inspection to identify the property with reference to khasra numbers as well as boundaries as mentioned in the plaint and give a report. The Local Commissioner shall take assistance of the competent Kanungo which the trial court may suitably order to assist the Local Commissioner for drawing up the report. The revision petition is allowed on the above terms.