VINOD KUMAR Vs. PURAN CHAND AND ANOTHER

JUDGEMENT

(1.) This revision petition under Sec. 115 of the Civil Procedure Code is directed against the orders of the learned Sub Judge (II), Rohru, dated 21st Sept., 2001.

(2.) It appears, the plaintiff, petitioner herein, filed a suit for specific performance of the agreement executed between him and defendant No. 1 Puran Chand whereby, according to the plaintiff, defendant had agreed to sell the land subject-matter of dispute to the plaintiff. Instead of executing the necessary sale deed defendant No. 1 sold the suit land to defendant No. 2 Negi Ram by a sale deed registered on 18th Nov., 1999. The plaintiff was put in possession of the suit land on 11th Feb., 1999 when the contract agreement was signed between the parties. It was the case of the plaintiff that he raised an orchard in the suit land by investing huge amount after he was put into possession of the suit land pursuant to the agreement. In the written statement the possession of the plaintiff over the suit land was disputed by the defendants. The parties led evidence on the various issues.

(3.) At the fag end of the case, when the suit was listed for final hearing, plaintiff moved an application, under Order 26, Rule 9 of the Civil Procedure Code, for the appointment of a Local Commissioner to investigate whether the plaintiff was in possession of the suit land or not. This application was resisted by the defendants. Learned trial Judge dismissed the application. According to the learned trial Judge, the plaintiff had filed suit for specific performance of the agreement dated 11.2.1999 to sell the suit land to the plaintiff asserting that he was put in possession of the suit land on that date. In his view it was not a boundary dispute where it was necessary to appoint a Local Commissioner. Learned Trial Judge concluded that there was no justification for the appointment of the Local Commissioner, in the facts and circumstances of the case of and if it was necessary to obtain the demarcation it was for the plaintiff to obtain demarcation by moving concerned revenue agency. Learned trial Judge observed :