PRITHI SINGH Vs. BAKSHI RAM

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed by the plaintiff -petitioner against the order dated 17.8.2005 passed by the trial Court, dismissing the application of the plaintiff under Order 26 Rule 9 CPC for appointment of a Local Commissioner.

(2.) The facts which are relevant for the decision of the present petition are that Prithi Singh plaintiff had filed a suit for permanent prohibitory injunction claiming himself to be the owner in possession of the suit land and alleging therein that the defendants were total strangers and had no right to raise any construction etc. thereon and as such the defendants be restrained from raising any construction etc. over the suit land. In the alternative, it was prayed that in case the defendants succeed in raising construction over the suit property or occupying any portion thereof, then a decree for possession by way of demolition of such construction be passed. The suit was contested by the defendants alleging that the defendants had no concern with the land of the plaintiff. It was alleged that in fact the suit land and the land of the defendants adjoined each other and there was an old maind on the boundary which was still in existence. It was further alleged that the defendants were not raising any construction over the suit land and, on the other hand, the defendants had constructed their house in the year 1992 -93 and at that time no objection was raised by the plaintiff. It was further alleged that so far as the stairs are concerned, the defendants had constructed the same much prior to the filing of the present suit with no objection having been raised by the plaintiff. It was alleged that the defendants were recorded owners of the adjoining khasra numbers.

(3.) During the pendency of the suit, the plaintiff filed an application under Order 26 Rule 9 CPC for appointment of a Local Commissioner to demarcate the land at the spot. It was alleged that the basic dispute between the parties was regarding the boundary and as such in order to adjudicate the matter in controversy the appointment of a Local Commissioner was must and no prejudice will be caused to the other side if the Local Commissioner was appointed. The said application was contested by the defendants by filing a reply. It was alleged that there was no need to appoint a Local Commissioner and that boundary of the land of the parties in the shape of old mind was still on the spot.