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2011 DIGILAW 1754 (HP)

Amar Nath Dhanush v. General Manager

2011-03-28

V.K.AHUJA

body2011
JUDGMENT V.K. Ahuja, J. The petitioner filed a suit for injunction alleging that he is lessee of Plots No. 16 to 19 area measuring 10-75 Sq. Mtr. as per lease agreement dated 18.4.1994. Plot No. 16 A adjoining to these plots have been allotted to respondent No. 2 by respondent No. 1. The plaintiff had filed a suit for injunction restraining respondent No. 2 from interfering in the plot in his possession. 2. The petitioner as plaintiff filed an application Annexure P-5 dated 9.11.2010 under Section 151 C.P.C. for police help for enforcing the order dated 25.9.2010. Another application, a copy of which is Annexure P-6, was also filed under Order 29 Rule 9 C.P.C. for appointing a Local Commissioner to demarcate the land. The learned trial Court after hearing the parties dismissed both the applications by its impugned order. 3. Being aggrieved, the petitioner has filed the present petition. Notice was issued to the respondents. 4. I have heard the learned counsel for the parties and have gone through the record of the case. 5. Insofar as the request for police help under Section 151 C.P.C. was concerned, the learned trial Court had passed a detailed order and it is clear that it was not justified in view of the facts of the case and thus, the application was rightly dismissed. 6. Insofar as the second application for appointment of Local Commissioner is concerned, there is nothing on record to show that respondent No. 2 was raising construction over the plot in possession of the petitioner or that this construction was being raised or was raised during the pendency of the case. Whenever a party approaches Court for the relief of permanent injunction, it must know about the land in its possession. Before filing the suit for injunction, it is required of such a plaintiff to obtain the demarcation report from the Revenue Officer concerned and seek proper relief thereafter only. In case, the same report has not been procured by the plaintiff, the applicant cannot also file such an application during the pendency of the case and the said report of demarcation can be proved by getting the said land demarcated. It is not for the Court to permit the plaintiff under Order 26 Rule 9 C.P.C. to create evidence for him by appointing a Local Commissioner. It is not for the Court to permit the plaintiff under Order 26 Rule 9 C.P.C. to create evidence for him by appointing a Local Commissioner. It is the evidence to be produced by the plaintiff by taking due demarcation in accordance with law and, therefore, no case is made out for allowing the application under Order 26 Rule 9 C.P.C. and the said application was rightly rejected by the learned trial Court. Issues have not been framed by the Court and the parties are yet to lead their evidence and, therefore, the plaintiff is at liberty to approach such revenue officer/competent officer and get his land demarcated and prove the said demarcation report in accordance with law as his own evidence. It was also pointed out by the learned counsel for respondent No 1 that in the proceedings under Order 39 Rules 1 & 2 C.P.C., a demarcation report was submitted as prepared by the retired Assistant Engineer, which is attached in the original case file. Without making any observations in that regard suffice it to say that the impugned order does not suffer from any infirmity. 7. In view of the above discussion, I accordingly hold that there is no merit in the petition filed by the petitioner, which is dismissed, so also the pending miscellaneous application(s), if any. Parties through their learned counsel are directed to put up appearance before the learned trial Court on 18th April, 2011. A copy of the judgment alongwith record be sent to the learned trial Court.