The main legal point established is that demarcation reports must be approved/confirmed by the Revenue Officer or accepted by the Court before the appointment of a Local Commissioner under Order 26 Rule 9 CPC.

Kuldip Singh, J.-The order dated 7.9.2009 passed by learned Civil Judge (Jr. Division), Kasauli in case No.65/6 of 2009 in main Case No.214/1 of 2006 has been assailed by petitioner/plaintiff under Article 227 of the Constitution of India.

2. The facts in brief are that petitioner had filed a suit for permanent prohibitory injunction restraining the respondent from raising construction on his land in contravention of Town and Country Planning Act and the rules framed thereunder besides regulations framed by Special Area Development Authority (SADA), Solan. It has also been prayed that respondent be restrained from encroaching upon suit land in any manner and from raising construction on any portion of the suit land over which the respondent has already encroached upon and has raised pillars. The petitioner has prayed mandatory injunction to remove all types of structures raised on portion of the suit land, restore status quo ante after demolition of the same. The prayer has also been made to give direction to respondent to demolish structure raised on set back areas and to bring his building in accordance with provisions of Town and Country Planning and Special Area Development Authority. The petitioner has ultimately prayed for decree of mandatory injunction and vacant possession of the encroached portion of the suit land. In para-8(a) of the amended plaint, it has been pleaded that the two pillars and projection and about twenty feet lintel so constructed by the respondent is inside the land of the petitioner who had applied for demarcation of the lands so as to know exact extent of the encroachment by the respondent.

3. The suit was contested by the respondent. He has denied that he had encroached any part of the suit land. The petitioner had filed application dated 30.6.2009 under Order 26 Rule 9 read with Section 151 CPC for appointment of Local Commissioner to demarcate the boundaries of khasra Nos.939/630 and 629 and also to prepare Naksha Tafawat. In the application, it has been submitted that respondent is co-owner of land comprised in khasra No.629 whereas khasra No.939/630 is owned by petitioner. The petitioner earlier had applied to the Assistant Collector, Kasauli for demarcation of the land on 8.1.2008. The Kanungo had inspected the spot on 7.8.2008 but did not complete the demarcation. On 26/27.5.2009 the demarcation was carried out on the spot. The encroachment of respondent was found on khasra No.939/630. The statement of respondent was recorded by Kanungo on 27.5.2009 which also establishes that respondent has made encroachment on khasra No.939/630. The petitioner on receipt of certified copy of demarcation report was surprised to note that the report prepared by the Kanungo is altogether different from the proceedings and facts and encroachment which was found on the spot. It has been submitted that petitioner is unable to get the demarcation because of the conduct of Revenue Agency. In these circumstances, the petitioner had applied for appointment of Local Commissioner and demarcation of the two sets of lands.

4. The respondent had contested the application and denied the claim of the petitioner. It has been denied that Field Kanungo had found any encroachment as alleged. The respondent has denied that his statement was recorded. The application is not maintainable as the petitioner had already got his land demarcated. The evidence has been led by the petitioner and the application has been filed to delay the proceedings.

5. The learned Civil Judge has held that earlier demarcation conducted by the Field Kanungo has not been set aside and dismissed the application.

6. The learned counsel for the petitioner has submitted that petitioner is unable to get proper demarcation on the application of petitioner submitted on 8.1.2009 for demarcation of land khasra No.939/630 and khasra No.629 due to the conduct of the Revenue Agency. The case of the petitioner is that it is difficult for him to prove e