HARI SINGH Vs. BALJEET SINGH

JUDGEMENT

(1.) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 07.04.2016 (Annexure P-4) passed by Civil Judge (Junior Division), Gurgaon, whereby, the application moved by the petitioner for appointment of Local Commissioner has been dismissed.

(2.) Briefly, the facts of the case as made out in the present revision petition are that the petitioner-plaintiff along with performa respondents filed a suit for possession with consequential relief of permanent injunction of their share in the property in dispute as per revenue record entered in accordance with the family settlement. During pendency of the suit, the petitioner-plaintiffs filed an application for appointment of Local Commissioner so as to verify the existing facts and circumstances in dispute on the ground that respondents No.1 to 3 have encroached upon the land of the petitioner, which was allotted to him in family partition. However, said application was dismissed vide order dated 07.04.2016, which is subject matter of challenge in the present revision petition.

(3.) Learned counsel for the petitioner submits that the controversy involved in the suit is regarding demarcation and possession of respective share, therefore, it is necessary to get the fact verified by way of appointment of Local Commissioner and report as to whether parties are in occupation of their respective share. Learned counsel further submits that for verification of the existing position of the disputed property and for just decision of the case, the appointment of Local Commissioner is necessary. The trial Court has dismissed the application only on the ground that earlier in February 2007, the demarcation has already been done at the instance of petitioner-plaintiff. Learned counsel also submits that no finding whatsoever has been made in the impugned order as to how the appointment of Local Commissioner is not necessary for just decision of the case. Learned counsel for the petitioner has also relied upon judgments of this Court in Gurdial Singh and others v. Municipal Committee, Morinda, 1998(3) ICC 277 and Banarasi Das v. Sardha Ram and others, 2015(9) RCR (Civil) 590 in support of his contentions.