IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 382 of 2010 Date of decision: 02.12.2010 Dulo Ram & Ors. ... Petitioners Versus Salo … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioners: Mr. Rakesh Thakur, Advocate. For the respondent: Mr. R.K. Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. V.K. Ahuja, J. (Oral): This petition has been filed by the petitioners/plaintiffs under Article 227 of the Constitution of India against the order passed by the Civil Judge, (Jr. Division), II Kangra, dated 18.8.2010, on an application filed by the petitioner under Order 26 Rule 9 C.P.C., vide which the application filed by the petitioners for appointment of Local Commissioner was dismissed. 2. Notice was issued to the respondent. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. It is clear from a perusal of the file that the petitioners filed a suit as plaintiffs for permanent prohibitory injunction as well as for mandatory injunction that the respondents have encroached 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 upon the suit land. However, before filing the suit for mandatory injunction, no application for demarcation was ever filed and any demarcation report obtained before claiming the relief of mandatory injunction, which was necessary. The petitioner obtained demarcation report dated 10.1.2002 just before filing the suit on 22.2.2002 and the said report has also been proved during the trial of the case. Once the demarcation has already been taken by the petitioners and the demarcation report has also been placed and proved on record, there is no question of appointment of fresh Local Commissioner because the report in question may not be favourable to the petitioners. There is no observation of the Court that the said demarcation was not carried out in accordance with law and once the Court makes such observation at the time of disposal of the case, it can consider the question of appointment of the fresh Local Commissioner. But no case is made out for allowing the application at this stage when the report of the demarcation has already been taken by the petitioner and he has been permitted to prove the same. 5. To substantiate his submissions, the learned counsel for the petitioner has placed reliance upon the decision in Haryana Waqf Board Vs. Shanti Sarup and others, (2008) 8 Supreme Court Cases 671, wherein it was observed that there was no specific denial by respondents of appellant’s averments that appellant’s land had been encroached. It was observed that the controversy between the parties was regarding demarcation of land because the parties had adjacent lands and, therefore, it was observed that the application for demarcation filed before the trial Court was wrongly rejected. 3 6. Reliance was also placed upon the decision in Bali Ram Vs. Mela Ram and another, 2002 (3) Shim. L.C. 131, wherein this Court had observed that in case the dispute is in regard to demarcation, it is desirable that exact position should be ascertained after investigation on spot and Court’s should exercise its power to issue commission to make local investigation so that a final and just decision is rendered. The appeal was remanded and remitted to lower appellate Court with a direction to appoint a Local Commissioner. 7. Both the decisions are based upon the facts of the case and in the present case when there is already demarcation report, no case is made out for appointment of fresh Local Commissioner. The impugned order does not suffer from any illegality and as such, the present petition is dismissed and so also the pending application(s), if any. Parties through their counsel are directed to appear before the learned trial Court on 27th December, 2010, and the Court shall proceed with the case in accordance with law. ( V.K. Ahuja ), December 02, 2010 Judge (BSS) 4 5