ACHHAR CHAND Vs. HARI KISHAN AND ORS.

JUDGEMENT

(1.) The petitioner has challenged the order dated 8.1.2013 passed by the learned Court below vide which the application filed by the petitioner under Order XXI Rule 32 CPC, for disobeying the judgment and decree dated 17.12.1987, was dismissed. Learned counsel for the petitioner submitted that the petitioner filed a suit against respondent No. 1 for permanent injunction restraining him from interfering into the possession of the petitioner -plaintiff on the land measuring 1 kanal, bearing khewat No. 154, khatoni No. 202, khasra No. 327 (1 -0), as per jamabandi for the year 1982 -83, situated in village Nurpur Kalan, Hadbast No. 394, Police Station Nurpur Bedi, Tehsil Anandpur Sahib, District Ropar. The same was decreed by the Sub -Judge, 1st Class, Anandpur Sahib vide judgment and decree dated 17.12.1987. The aforesaid judgment and decree was challenged by the defendant therein and the appeal was dismissed on 14.9.1990. Respondent No. 1, in connivance with his son -respondent No. 2, who is claiming himself to be NRI, started interfering in the possession of the petitioner in violation of the order of injunction. In connivance with the police, the petitioner was detained in the police station on 2.7.2006. The application under Order XXI Rule 32 CPC was filed by the petitioner on 17.7.2006 alleging violation of the injunction. During the pendency of the aforesaid application, vide order dated 19.11.2009, the learned Court below appointed Naib Tehsildar, Nurpur Bedi, as Local Commissioner to demarcate the property and report about existing position of the suit property. He furnished his report in Court, however, the same was rejected by the learned Court below and as a consequence the application was rejected.

(2.) Challenging the aforesaid order, while referring to Order XXVI Rule 14(3) CPC, learned counsel for the petitioner submitted that in case the report of the Local Commissioner is rejected, then another Local Commissioner should have been appointed as without the report of actual position at the site which could be determined only after demarcation of the property, it could not be found as to whether there was violation of the injunction granted in favour of the petitioner. Demarcation of the property could be by some revenue officer. As the learned Court below has failed to exercise the jurisdiction vested in it, the order deserves to be set aside and a direction is required to be issued for appointment of a new Local Commissioner, who should demarcate the property in terms of the instructions applicable.

(3.) On the other hand, learned counsel for the respondents submitted that the provisions of Order XXI will not apply in the case in hand, as those are applicable in the case of partition of property. Order XXVI Rule 9 and 10 CPC may be applicable. Once it is found that the report of the Local Commissioner was not in consonance with the revenue record as the dimensions did not tally, the same was rightly rejected. In the absence of any other material on record, the Court had rightly dismissed the application filed by the petitioner. It was for the petitioner to have led any other evidence as the report of the Local Commissioner may not be sufficient. The report of the Local Commissioner is merely a piece of evidence and nothing more than that.