The nature and extent of encroachment can be raised during trial proceedings, and no fresh demarcation can be ordered when a previous demarcation report is in existence and affirmed.

Dharam Chand Chaudhary, J.

Order Annexure A-3 dated 19.8.2016 passed in an application filed under Order 26 Rule 9 CPC by learned Civil Judge (Junior Division), Barsar, District Hamirpur is under challenge in this petition.

2. The Court below has dismissed the application with the observations that the demarcation of the suit land is got conducted by the petitioner-plaintiff during the pendency of the suit and the demarcation report has been affirmed by the competent authority. Also that till the previous demarcation report is in existence and not set aside, no fresh prayer for demarcation of the suit land can be entertained.

3. Interestingly enough, the application Annexure P-1 has been filed for demarcation of the suit land on the ground that the respondent-defendant during the pendency of the suit had encroached upon the suit land for raising construction thereon and also cut a ‘Biuhal’ tree therefrom. The demarcation, therefore, is required to find out the extent of the alleged encroachment made by him.

4. Admittedly, the demarcation of the land was conducted by the Field Kanoongo on 15.6.2010 i.e. after filing of the application Annexure P-1. The demarcation report even has been affirmed also by the competent authority on 14.7.2010. Meaning thereby that in view of the demarcation report in existence has been submitted by the Field Kanoongo, after demarcation of the land on the spot at the instance of the petitioner-plaintiff, no permission to demarcate the land afresh could have been granted. Learned trial Judge, therefore, has not committed any illegality or irregularity in dismissing the application.

5. The contentions raised on behalf of the petitioner-plaintiff that in the demarcation conducted on 15.6.2010, the nature and extent of the encroachment has not been pointed out, can be raised in the trial Court during the course of the proceedings in the suit, however, in the given facts and circumstances and for all the reasons recorded hereinabove, the present is not a case where fresh demarcation of the suit land could be ordered. Learned trial Judge has, therefore, rightly dismissed the petition. Being so, the impugned order Annexure A-3 calls for no interference and is hereby affirmed. The petition is dismissed with the above observations.

Pending applications, if any, shall also stand disposed of.