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2014 DIGILAW 1733 (HP)

Manmohan Kansal v. Hem Raj

2014-11-24

RAJIV SHARMA

body2014
JUDGMENT : Justice Rajiv Sharma, J. (oral) This petition is instituted against the order dated 28.10.2014 rendered by the learned Civil Judge, (Sr. Divn.), Court No. 1, Paonta Sahib, passed in CMA No. 242/6 of 2014 in Civil Suit No. 89/1 of 2008. 2. Key facts, necessary for the adjudication of this petition are that the petitioners-plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) have filed a suit for permanent prohibitory injunction restraining the respondents-defendants (hereinafter referred to as the defendants), from interfering, raising construction of any kind, whatsoever, in land comprised in Khata Khatauni No. 2 min/2 & 3, bearing Khasra Nos. 92/58 and 57, measuring 79-0 bighas, situated in Mauza Kodri-Parmanand, Tehsil Paonta Sahib, Distt. Sirmour, H.P., as per jamabandi for the year 1998-99. 3. The suit was contested by the defendants. Replication was filed. The issues were framed by the learned trial Court on 28.2.2009. The matter was listed for final arguments. At that stage, the plaintiffs moved an application under Order 26 Rule 9 CPC, for appointment of Local Commissioner. The application was contested by the defendants. The application was rejected by the learned trial Court on 28.10.2014. Hence, this petition. 4. I have heard Mr. V.D.Khidta, Advocate for the petitioners and gone through the record and order dated 28.10.2014. 5. The suit was instituted by the plaintiffs in the year 2008. The application under Order 26 Rule 9 CPC has been filed when the matter was listed for final arguments. The defendants have specifically averred in para 7 of the Written Statement that the Patwari and Field Kanungo had visited the spot on 5.9.2005, carried out demarcation and found that shrubs and trees were cut from Kh. Nos. 50, 48 and 58 and not from the suit land. The plaintiffs were already aware about this position. The issues were framed by the learned trial Court on 28.2.2009. It is not the case of the plaintiffs that the defendants have encroached upon any portion of the suit land, during the pendency of the suit and thus the demarcation was necessary. The application was filed at a very belated stage. The plaintiffs cannot be permitted to collect evidence under the garb of filing application under Order 26 Rule 9 CPC. The plaintiffs, as rightly observed by the learned Civil Judge (Sr. The application was filed at a very belated stage. The plaintiffs cannot be permitted to collect evidence under the garb of filing application under Order 26 Rule 9 CPC. The plaintiffs, as rightly observed by the learned Civil Judge (Sr. Divn.), Court No. 1, Paonta Sahib, have alternative remedy to approach the revenue authorities for fixing the boundaries of the land. There is neither any illegality nor perversity in the order dated 28.10.2014. Accordingly, the present petition is dismissed. No costs.