Krishna Devi vs Hukami Ram and Others

Deepak Gupta, J.—This petition is directed against the order of the learned District Judge dated 06.08.2010 passed by the learned Civil Judge (Senior Division) Nadaun, whereby he rejected the application filed by the Petitioner (hereinafter referred to as ''the Plaintiff'') under Order 26 Rule 9 Code of Civil Procedure.

The facts of the case are that the Petitioner filed a suit praying that a decree of permanent prohibitory injunction be granted in her favour restraining the Defendants from raising any construction over the land measuring 0-05 marlas comprised in khasra No. 209 situated in Tika Seri (Nadaun) Tappa Jalari, Tehsil Nadaun, District Hamirpur (hereinafter referred to as the suit land). It was also prayed that in case during the course of the proceedings, it is found that the Defendants have raised construction on the suit land, then a decree for mandatory injunction directing the Defendants to remove such structure be passed. The Defendants in their reply claimed that they are in possession of the suit land since the time of their ancestors and they have raised cattle shed, bath room, Agwara, Pichwara and court yard and have become owners by way of adverse possession.

In a case where the defence is of this nature, there is no question of appointing a Local Commissioner. The Defendants have not denied that they are in possession of the suit land. They have, in fact, claimed that they have become owners by way of adverse possession and obviously, the onus to prove such an issue would be upon them. The learned trial Court has rightly dismissed the application for appointment of Local Commissioner.

There is no merit in the petition, which is accordingly dismissed.