SARAJ DIN Vs. LIYAQAT ALI

JUDGEMENT

(1.) This petition has been filed under Article 227 of the Constitution of India for the purpose of assailing the order dtd. 19/10/2023 passed by the court of learned Municipal Magistrate, Jammu (for short "the trial court"), whereby the learned trial court in exercise of power under Order 26 Rule 9 CPC, has appointed the Tehsildar, Bahu as Commissioner to go on spot and demarcate the respective land of both the parties after giving due notice to each side. The application filed by the petitioner for staying the suit under Sec. 10 CPC has been dismissed vide the same order.

(2.) The aforesaid order has been impugned by the petitioner on the ground that Commissioner cannot be appointed when a particular fact is to be proved by leading evidence and the learned trial court has miserably failed to appreciate that the dispute between the same parties is already sub- judice in another suit pending before the trial court only.

(3.) The brief facts necessary for the disposal of the present petition are that an application for staying of the proceedings of the suit titled "Liyaqat Ali vs. Saraj Din" was filed by the petitioner on the ground that earlier he had filed a suit for permanent prohibitory injunction with regard to land comprising Survey No. 356 min situated at Village Sunjwan Tehsil and District Jammu which was pending before the same court and the respondent had also filed the written statement. Thereafter, the respondent filed the suit for permanent prohibitory injunction for restraining the petitioner and his attorneys etc. from causing any interference into his peaceful possession in the land comprising Survey No. 356 min measuring approximately 16 marlas situated at village Sunjwan having dimensions as under:-