Bini Ram vs Ramesh Bisht

Surinder Singh, J.—The parties agree that the matter can be disposed of at this stage.

Heard and gone through the record.

This is a petition under Article 227 of the Constitution of India against the order dated 30.11.2010 passed by the learned Civil Judge (Junior Division), Solan, in Civil Suit No. 194/1/04/02, titled as Ramesh Bisht versus Bini Ram.

In fact when the suit filed by the respondent was pending at the stage of recording the evidence of the parties, an application u/s 151 of the CPC was moved for demarcating the area alleged to have been encroached upon by the petitioner/defendant. Tehsildar was appointed as Local Commissioner. He filed his report against alleging encroachment, to which the petitioner herein filed objections which were dismissed and the application for seeking amendment in the plaint moved by the respondent/plaintiff was allowed. Accordingly, the learned trial Court framed the following additional issue:

Whether the plaintiff is entitled to the decree of actual and vacant possession of the land by the defendant? The onus was placed upon the plaintiff.

The parties feel satisfied that in case the defendant is given an opportunity to file the amended written statement with a right to replication if any and also agree to frame one more additional issue, in the following manner:

Whether the report of the Local Commissioner is legally and factually correct? The onus of which shall be on the defendant.

In view of above, the learned trial Court is hereby directed to allow the defendant to file the amended written statement on the date to be fixed by it on 16.1.2012 and it shall also frame the above additional issue which shall be decided by the learned trial Court on its on merits without having been influenced by any observation or anything said in the impugned order; alongwith any other issue, if any, arising on account of the amendment in the written statement.

With these directions the impugned order stands modified accordingly and the petition stands finally disposed of, so also the pending application(s), if any, and the parties are hereby directed to appear before the learned trial Court on 16.1.2012.

Copy Dasti on usual terms.