JAI NARAIN Vs. SADHU RAM

JUDGEMENT

(1.) In a pending suit, the appellant- plaintiff filed an application under Order 39 Rules 1 and 2 of CPC. His application was dismissed by the trial Court primarily by stating that prima facie, he (plaintiff) appears to be an encroacher upon the land of defendant and other co-sharers. It is apparent from the records that both the parties were relying upon demarcation reports made by the Local Commissioners, which are contradictory to each other. Appellant went in appeal. In that appeal, he also moved an application for appointment of a Local Commissioner to demarcate the property in dispute. On 31.1.2006, following statement of the counsel for the appellant was recorded before the appellate Court below:-

(2.) Thereafter, statement of Jai Narain, petitioner/ respondent was also recorded, which reads as under:- "I have no objection for demarcation of the suit property." The said statement was read over to him and he accepted the same to be correct and, thereafter the Court below allowed the respondent/ plaintiff to withdraw his appeal without prejudice to his rights. It was further directed that the trial Court shall get the suit property demarcated by appointing a Local Commissioner, who shall demarcate the property, in presence of both the parties. Now, this revision petition has been filed by the defendant primarily on the ground that once appeal has been ordered to be withdrawn, it was not open to the appellate Court, to pass any further order. This Court feels that in view of this conduct, the petitioner is not entitled to raise this objection. Only when he gave his consent to demarcate the property, in dispute, the appellate Court with a view, to settle the controversy, after getting consent of both the parties allowed the respondent to withdraw his appeal without prejudice to his rights. It was further ordered that the property be got demarcated by appointing a Local Commissioner.

(3.) This Court is also of the opinion that the controversy is such which could have been settled only after demarcation of the property. Under these circumstances, order passed was perfectly justified. Objection of the petitioner that order passed is illegal is not proper, as he was a consenting party to the said order. The jurisdiction of this Court under Article 227 of the Constitution of India is a discretionary and this Court is not to supposed exercise the same in favour of a person whose conduct is not straightforward and honest.