HARI OM Vs. MINISH KUMAR

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution prays for quashing order dated 20.12.2004 passed by the Civil Judge (Jr. Division) Dhuri declining the application of the defendant -petitioner seeking appointment of Local Commissioner for demarcation of the property allotted to him by the Wakf Board. The appointment of the Local Commissioner is stated to be to assist the Court in recording the finding as to whether the defendant -petitioner has encroached upon any area belonging to the plaintiff -respondent. In other words, the Local Commissioner was to be appointed to decide the question of possession in respect of the property.

(2.) The plaintiff -respondent filed a suit for permanent injunction restraining the defendant -petitioner from encroaching upon any part of his shop and from raising any construction over any part of the shop forcibly and illegally. During the pendency of the suit, the defendant -petitioner filed an application for appointment of the local commissioner asserting that during the course of adducing evidence, the plaintiff -respondent had stated that front measurement of the shop is 14 feet alleging that the plaintiff respondent mala fide intended to encroach upon 5 feet space of the property belonging to him. The defendant -petitioner moved an application for determining the actual measurement of the shop in dispute on the spot by appointment of a local commissioner. The application was resisted by asserting that the measurement of the front portion in definite terms has been disclosed to be 14 feet and the plaintiff -respondent did not wish to encroach upon 5 feet of the defendant -petitioner. The defendant -petitioner was granted seven opportunities to conclude his evidence, which was closed on 4.4.2003. On the basis of pleadings of the parties, the Civil Judge dismissed the application by the impugned order. The operative part of the order reads as under: -

(3.) Mr. Mahesh Gupta, learned counsel for the defendant -petitioner has argued that the view taken by the Civil Judge is unsustainable in law because the Local Commissioner was to be appointed to furnish the Court, measurement of the shop allotted to the defendant -petitioner. According to the learned counsel, there would be no delegation of the powers of the Court as the Local Commissioner was not to decide the issue of possession. The basic object of appointing a local commissioner was to assist the court so as to enable it to deal with the issue effectively. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Pohlu Ram v/s. Gram Panchayat Dharamgarh alias Badowal, 1980 P.L.J. 24.