LEELA RAM Vs. OMKAR

JUDGEMENT

(1.) The present revision petition is directed against the impugned order dated 17.11.2015 (Annexure P-6), whereby the application of the petitioner-plaintiff with regard to the appointment of the Local Commissioner for demarcation of the suit property by the Revenue Officer, at the time of framing of the issues, has been dismissed.

(2.) Mr. P.R. Yadav, learned counsel appearing on behalf of the petitioner submits that the petitioner-plaintiff had instituted the suit for permanent injunction restraining the respondent-defendant not to interfere in the possession and user of the Gair Mumkin plot compromised in Khewat No.140 Khatoni No.161 Khasra No.140 measuring 1 kanal 03 marals situated within the Gair Mumkin Abadi of Village Kotya Sub-Tehsil Kanina District Mahendergarh and also qua forcible dispossession, much less, with a further prayer that during the pendency of the suit, if the construction raised, the same may be got demolished. Since the construction was going on, an occasion arose for the petitioner-plaintiff to move an application for appointment of Local Commissioner, which was allowed and the Local Commissioner inspected the spot and submitted his report dated 05.02.2015 (Annexure P-2). The said report is pertained to the ongoing construction, but a necessity arose to move an application on 23.02.2015 i.e. few days after the Local Commissioner submitted his report that in the process of construction, the defendant had encroached upon some portion of Khasra No.140. Since there is already a prayer in the suit for removal of the construction, in case found to have been encroached, thus, it was essential and necessary for the plaintiff to get the property demarcated through an Expert for effective adjudication of the suit, but this fact has not been taken into consideration by the trial Court, therefore, there is abdication, illegality, much less, perversity.

(3.) On the contrary, learned counsel for the respondent-defendant submits that no revision lies against the dismissal of the application seeking appointment of the Local Commissioner, even otherwise, there is already report of the Local Commissioner. The role of the Local Commissioner is not to collect the evidence, the plaintiff has to stand to his own leg by leading the direct and cogent evidence, thus, urges this Court for dismissal of the present revision petition by upholding the order, under challenge.