Smt. Daya Sharma and another vs Suraj Mani

V.K. Ahuja, J.—The present petition has been filed against the order passed by the learned District Judge allowing an application under Order 26 Rule 9 C.P.C. for appointment of Local Commissioner and directing that Tehsildar, Sadar, be appointed as Local Commissioner to demarcate the suit land.

Brief facts leading to the filing of the present petition are that a suit for permanent injunction and mandatory injunction filed by the respondent, was dismissed. An application under Order 26 Rule 9 C.P.C. was filed before the first. Appellate Court, which considered [he question that the relief of mandatory injunction was declined by the Court below since only a Tatima was produced in evidence and no demarcation report was produced for just determination of the case and the fact that as to whether the petitioners have encroached upon the suit land and to what extent and if so, during the pendency of the suit, it is necessary that Local Commissioner should be appointed to demarcate the land and give his report accordingly. A reference was also made to a decision of this Court in Brahm Dutt v. Prem Chand 2000 (1) SLJ 431, wherein similar question arose and it was held by this Court that Local Commissioner should have been appointed to find out the extent of encroachment. The said decision clearly applies to the present case, which was relied Upon by the learned District Judge. The findings recorded by the learned District Judge, therefore, do not suffer from any illegality and calls for no interference by this Court.

The present petition filed by the petitioner under Article 227 of the Constitution of India is dismissed accordingly, so also the pending application(s) if any. A copy of the order alongwith record be sent to the Court below. Parties through their Counsel are directed to appear before the learned District Judge on 15th February, 2011.