SHANKAR DASS Vs. MUNICIPAL COMMITTEE, HAMIRPUR

JUDGEMENT

(1.) By way of instant petition under Article 227 of the Constitution of India, prayer has been made for quashing and setting aside order dated 10.3.2017 passed by Civil Judge (Senior Division), Court No. 1, Hamirpur, Himachal Pradesh in Civil Suit No. 139/2012, whereby application having been filed by petitioner under Order 26 Rule 9 CPC, for appointment of local commissioner to demarcate suit property as well as adjoining path constructed by municipal Committee, Hamirpur, came to be dismissed.

(2.) Briefly stated the facts, as emerge from the record are that petitioner-plaintiff, filed a civil suit bearing No. 139/2012 for permanent prohibitory injunction, restraining the respondent-defendant from raising any construction or laying passage in suit land and in the alternative sought decree for mandatory injunction directing defendant to restore suit land to its original position, in case it succeeds in constructing passage, during the pendency of the suit.

(3.) It emerges from the record that plaintiff preferred an application under Order 26 Rule 9 CPC read with Section 151 CPC for appointment of local commissioner to demarcate suit land and submit its report with regard to nature and extent of encroachment, if any, over the land in dispute and existence of passage. Aforesaid application was contested by the defendant and learned Civil Judge (Senior Division), Court No.1, vide order dated 6.4.2015, dismissed the application terming the same to be premature.