KANGRU RAM Vs. SRIRAM

JUDGEMENT

(1.) The present petition, under Article 227 of the Constitution of India, is maintained by the petitioner/plaintiff (hereinafter to be called as "the plaintiff") , for quashing the order dated 19.05.2017, passed by learned Civil Judge (Jr. Div.) , Court No. 4, Hamirpur, H.P., in CMA No. 375 of 2013, Civil Suit No. 120 of 2012, whereby an application, under Order 26, Rule 9, read with Section 151 CPC, for appointment of the Local Commissioner, was dismissed.

(2.) Briefly stating facts giving rise to the present petition are that the plaintiff filed an application before the leaned Court below, under Order 26, Rule 9, read with Section 151 CPC, wherein he alleged that the respondent/defendant is adjoining owner, having Khasra No. 208 and he dug the suit land and raised construction in the shape of steps and also blocked the drain/challa of the plaintiff. It has been further averred in the application that since main dispute inter se the parties is boundary dispute, the appointment of Local Commissioner is necessary as it will enable the Court to give specific findings. Lastly, the plaintiff prayed that the present application may be allowed and Local Commissioner to demarcate the suit land and to report the nature and extent of encroachment, may be appointed.

(3.) In reply to the application, the respondent/defendant has averred that this application is not maintainable, as the plaintiff has not produced any evidence and now moved the application. Further the application of the plaintiff cannot be allowed, as the same will amount to create evidence in favour of the plaintiff. Lastly, the respondent/defendant prayed for dismissal of the application with costs.