IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.398 of 2011 Date of decision : December 7, 2011 Shri Hira Lal son of Shri Janki Ram, resident of village Jaul, Post Office Jubbar, Tehsil Kasauli, District Solan, H.P. …Petitioner. Versus Shri Data Ram son of Shri Tota Ram, resident of village Chhatian, Post Office Kasauli, Tehsil Kasauli, District Solan, H.P. …Respondent. PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA FOR QUASHING AND SETTING ASIDE IMPUGNED ORDER DATED 8.9.2011 (ANNEXURE P- 1) PASSED IN CIVIL MISCELLANEOUS APPLICATION UNDER ORDER 26 RULE 9 CPC READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEUDRE, IN CIVIL SUIT NO.24/1 OF 2011 TITLED AS HIRA LAL VERSUS DATA RAM, BY THE LD. CIVIL JUDGE (JUNIOR DIVISION) KASAULI, WHEREBY THE APPLICATION HAS BEEN DISMISSED, PRAYER TO ISSUE APPROPRIATE ORDER OR DIRECTION AND TO ALLOW THE APPLICATION UNDER ORDER 26 RULE 9 CPC FOR DEMARCATION OF THE SUIT LAND, FILED BY THE PETITIONER/PLAINTIFF. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. P.S. Goverdhan, Advocate. For the Respondent : Mr. Ajay Mohan Goel, Advocate. Surjit Singh, Judge(Oral) Heard and gone through the record. 2. Petitioner, claiming himself to be owner of land bearing Khasra No.37, situate in Mauza Jaul, Tehsil Kasauli, District Solan, has filed a suit for issuance of permanent prohibitory injunction, restraining the respondent-defendant Data Ram from making Whether reporters of the local papers may be allowed to see the judgment? …2… encroachment on a portion of the said Khasra number, while raising construction on the adjoining land. Suit is being contested by the defendant-respondent. He denies that encroachment has been made or is being made on the land bearing Khasra No.37, belonging to the petitioner-plaintiff. 3. Petitioner moved an application to the Civil Court, where the suit is pending, for appointment of Local Commissioner to carry out demarcation, for the purpose of ascertaining whether any encroachment has been made or is likely to be made by the respondent, while raising construction of his building. That application has been rejected vide impugned order dated 8th September, 2011, copy Annexure P-1. Petitioner is aggrieved by this order and has approached this Court, by means of the present petition, for setting aside the said order and allowing his application for appointment of Local Commissioner. 4. Learned trial Court has observed in its order that in between the land of the plaintiff and the site on which the defendant claims to be raising construction, there is Government land and that it is not the case of the petitioner-plaintiff that the Government land, falling between the two properties, has been encroached and the defendant-respondent is now intending to extend the encroachment to the suit property of the plaintiff. This could not have been a ground for rejection of petitioner’s …3… prayer for appointment of Local Commissioner. Petitioner has nothing to do with the Government land, falling between the properties of the parties and, therefore, he was not supposed to plead that property of the Government, falling between the two properties, had already been encroached upon and that after encroaching upon that property, the respondent intended to make further encroachment upon his (petitioner’s) property. 5. In view of the abovestated position, the present petition is allowed, impugned order dated 8th September, 2011, Annexure P-1, is set aside and petitioner’s application for appointment of Local Commissioner is allowed. Learned trial Court shall appoint some Assistant Collector, 1st Grade posted at Kasauli to visit the spot, in the presence of the parties/their counsel to carry out demarcation of Khasra No.37 of the petitioner and to report whether any encroachment has been made and/or is likely to be made by the respondent, while constructing his building, in question. Fee of the Local Commissioner shall be fixed by the learned trial Court. 6. Petition stands disposed of. Pending application also stands disposed of. Copy of this order be given dasti to the learned counsel for the petitioner. December 7, 2011(sd) ( Surjit Singh ), J