MADAN LAL Vs. ALAM SINGH

JUDGEMENT

(1.) The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioner/plaintiff (hereinafter to be called as "the plaintiff") , against the order dated 21.12.2017, passed by learned Civil Judge (Jr. Div.) , Jogindernagar, District Mandi, H.P., whereby an application under Order 26, Rule 9 CPC, filed by the plaintiff for appointment of the Local Commissioner has been dismissed.

(2.) Briefly stating facts giving rise to the present petition are that the plaintiff filed a Suit for permanent prohibitory injunction and for mandatory injunction, under Section 38 & 39 of the Specific Relief Act against the defendant, wherein he alleged that the suit land, i.e. Khasra No. 1623, situated in Mohal Ropari/79, Tehsil Jogindernagar is joint land and the house of the plaintiff is situated in adjoining Khasra No. 1624 of the same Mohal. It has been further averred that through the suit land there exist a path to the house and cow shed of the plaintiff, where the defendant has constructed a septic tank and now he is creating hindrance in order to ingress and outgress the plaintiff and other co-sharers from the path, therefore appointment of the Local Commissioner is necessary to elucidate the matter in dispute.

(3.) In reply to the application, the defendant has taken preliminary objection qua maintainability. On merits, it has been averred by the defendants that the application has been moved just to create evidence, as the plaintiff has miserably failed to establish the factum of existence of path, hence the application may be dismissed.