BUDHA RAM Vs. RAJEEV SHARMA

JUDGEMENT

(1.) The present Civil Revision calls in question the order of learned Sub Judge, Jammu in an application titled Rajiv Sharma v. Budha Ram under Order 26 CPC whereby the learned trial judge has appointed a commissioner to demarcate the subject matter of the suit titled as above, awaiting disposal before the trial judge.

(2.) In order to understand the controversy it would be advantageous to have an overview of the case set up by the parties before the learned trial judge.

(3.) The respondent in the present revision petition instituted a suit seeking possession of a strip of land said to have been forcibly taken into possession by the present petitioner and annexed the same with his plot of land on which a three storeyed building is constructed by the petitioner/defendant. The respondent/plaintiff also prayed for grant of permanent injunction/decree restraining the petitioner/defendant from interfering with rest of the land owned by the respondent/plaintiff. The respondent/plaintiff's case before the learned trial judge was that a plot of land measuring 12 marlas along with house standing thereon was transferred by its owners in favour of the respondent/plaintiff by a sale deed executed and registered on 30.4.2001. The respondent/plaintiff insisted that towards the southern side of the aforesaid property an open strip of land measuring 7'x25' was also transferred by the owners in favour of the respondent plaintiff. The respondent/plaintiff pleaded that the petitioner/defendant encroached upon a strip of land measuring 3 =' x 25' out of the aforementioned 7 x 25' open land in 1979-1980. The respondent/plaintiff pleaded that he became aware of the encroachment made by the petitioner/defendant only when the previous owner of the property came from Bombay to Jammu and informed the respondent/plaintiff about the same. The petitioner/defendant has since filed his written statement in the main suit denying the arguments made in the plaint and even issues have been settled and some evidence recorded.