IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 275 of 2010 Date of decision: 23.12.2010 Ranjan Singh and anr. ... Petitioners Versus Raghuvir Singh … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No For the petitioners: Mr. Karan Singh Kanwar, Advocate. For the respondent: Mr. Romesh Verma, Advocate. V. K. Ahuja, J. (Oral): The present petition under Article 227 of the Constitution of India has been filed by the petitioner against the order, dated 6.1.2010 passed by the learned Civil Judge, Senior Division, Rajgarh, District Sirmour, dismissing the application filed by the petitioner as plaintiff under Order 23 Rule 1 CPC for withdrawal of the suit with permission to file a fresh suit on the same cause of action. 2. I have heard the learned counsel for the parties and have also gone through the record. A perusal of the impugned order shows that the only ground taken in the application by the petitioner was that inadvertently, the plaintiff, before filing the suit, could not prepare the tatima from the competent authority in regard to the suit land, which is necessary to adjudicate upon the matter. The application was opposed by the respondent on the ground of maintainability and that the defect is 1Whether reporters of Local Papers may be allowed to see the judgment? 2 material defect and cannot be allowed to be removed by filing a fresh suit on the same cause of action. It was also pleaded before the learned trial court that the petitioner-plaintiff had not got the suit land demarcated before filing the suit and thus, the defect cannot be cured by allowing the present application. It was observed by the learned trial court that the defect of non-filing of the demarcation report and site plan regarding the alleged encroachment with the plaint goes to the root of the claim of the petitioner-plaintiff against the respondent-defendant, which affects the merits of the case. Hence, the application was rejected. 3. A perusal of the record also shows that the case was fixed for evidence of the petitioner-plaintiff. Though, more than five opportunities were granted to the petitioner-plaintiff to lead evidence, yet the evidence was not led. A perusal of the record further shows that an application under order 26 Rule 9 CPC was also filed for appointment of Local Commissioner, which was rejected. The learned counsel for the respondent-defendant submits that the petitioner can be given time to get the demarcation report from the Revenue Officer and he can prove the same during the trial of the case. In view of the fact that the only ground taken by the respondent is non-obtaining the report in regard to encroachment, if any, the said defect can be cured by obtaining the report of the Revenue Officer in regard to encroachment, for which petitioner can be given time to prove the case, when the same is fixed for evidence. In a similar case, titled Amar Singh vs. Narpat Ram, 2910 (1) Him. L.R. 474, the learned single Judge of this Court has observed that the encroachment can be established by demarcation in a boundary dispute. The demarcation can be obtained by a party from the Revenue Agency without the intervention of the Court by filing appropriate application for 3 demarcation of the land. The demarcation also can be obtained by a party during the pendency of the litigation by filing appropriate application in the Court for appointment of Local Commissioner and to demarcate the land to find out the encroachment. Keeping in view the observations made in Amar Singh’s case, there is no illegality in the impugned order. However, the same is modified to this extent that the learned trial court shall proceed further with the trail of the case and the petitioner shall be given time to obtain the report with regard to encroachment, if any, from the Revenue Officer and to prove it in accordance with law, for which four months’ time be given or as far as possible. The date for the evidence of the petitioner shall be fixed keeping in view the fact that he has been permitted to get the report from the Revenue Officer and prove it accordingly. The present petition is dismissed with above observations. The parties through their counsel are directed to appear before the learned trial court on 15.2.2011. (V.K. Ahuja), December 23, 2010 Judge (pankaj)