Sobhagmal Sethi Vs. Salim Khan & Others (S.B. Civil Writ Petition No.3662/2010) April 26, 2010 HON'BLE MR. JUSTICE R.S. CHAUHAN Mr. K.K. Mehrishi, Senior Advocate with Mr. Harsh Kulshrestha, for the appellant. The petitioner has challenged the order dated 16-2-2010, whereby the learned Additional District Judge, No.5, Kota has set aside the order dated 19-1- 2010, passed by Civil Judge (Senior Division) Kota, and has remanded the case back to learned Magistrate with a direction to obtain the report of survey done by the Commissioner and to re-decide the application for temporary injunction after taking the said report on record and after allowing the defendants a chance to file reply to the application. The case of the petitioner is that on 6-1-1958, one Shambhu Lal purchased a land measuring 760 sq. ft. from the Gram Panchayat, Khatoli. He commenced construction of a shop on 400 sq.fit of the said land. For that purpose, he dug foundation and filled it with stones. Subsequently, the petitioner purchased the said land with the foundation from Shambhu Lal through a registered sale-deed, dated 19-8-1980. However, when the petitioner started the construction, respondents No.1 to 5 interfered with the peaceful possession of the petitioner. Therefore, on 22-9-2009, the petitioner filed a suit for perpetual injunction against respondents No.1 to 6, along with the application for temporary injunction. On 1- 10-2009, the defendants No.1 to 4 filed reply to the application for temporary injunction. On 7-10-2009, the learned Magistrate appointed Tehsildar, Pipalda as Commissioner for measuring the disputed land. On 13-10-2009, the Tehsildar requested the court to get the demarcation done by employees of Settlement department. On 22-10-2009, the officers of the Settlement department informed the court that they will be willing to demarcate/ measure the disputed land provided an amount of Rs.32,782/- were deposited. Subsequently, the respondent No.6 also filed reply to the application for temporary injunction. Vide order dated 19-1-2010, the learned Magistrate accepted the application for temporary injunction. Since, the defendants No.1 to 5 were aggrieved by the said order, they filed an appeal before the appellate court. The appellate court decided the appeal as mentioned above. Hence, this petition before this Court. Mr. K.K. Mehrishi, Senior Advocate and the learned counsel for the appellant, has contended that it was brought to the notice of the learned Magistrate and to the notice of learned Appellate Court that since the settlement department was demanding Rs.32,782/-, an application was filed for appointment of settlement office as Commissioner. The said application was never decided by the learned Magistrate. Secondly, the learned appellate court has erred in observing that respondents should be given a chance to file reply. For, admittedly the respondents Nos.1 to 4 had already filed their reply on 1-10-2009, and the respondent No.6 had also filed his reply on 12-11-2009. Therefore, the direction regarding "chance of filing the reply" is against the record. Heard learned counsel for the appellant and perused the material available on record. Since there is dispute with regard to land between the petitioner and the defendants, it would be in the interest of justice to have the land demarcated/ measured by the officers of the Settlement department. Therefore, the learned trial court is directed to decide the application and to appoint an officer of the Settlement department to carry out the demarcation/ measurement of the land in dispute. Moreover, since admittedly, reply has been filed by respondent Nos.1 to 4, and 6, the direction of the appellate court that they should be permitted to file reply is, obviously, against the record. Therefore, the said direction is, hereby, set aside. But the rest part of the order of appellate court with regard to remanding of the case to the learned Magistrate is confirmed. The writ petition is disposed of, as indicated above. (R.S. Chauhan), J. arn/