ORDER :

1. Learned Trial Court vide order dated 27.05.2016, dismissed plaintiff’s objections to the report of Local Commissioner and confirmed the demarcation report. This order has been assailed by the legal representatives of the deceased plaintiff in the instant petition filed under Article 227 of the Constitution of India.

2. The parties are hereinafter referred to as they were before the learned Trial Court.

3. Facts:

(i) Suit for permanent injunction for restraining the defendant from cutting, digging, raising construction or interfering over the suit land comprised in Khata/Khatauni No. 10/18 min, Khasra No. 605/533, measuring 0-15 Bigha of Mouza Moginand, Tehsil Nahan, District Sirmour, H.P. was instituted by the plaintiff. The plaintiff pleaded that he was absolute owner in possession of the suit land. The defendant was a complete stranger to it, having no right, title, interest or concern with the suit land.

The defence taken was that the construction raised by the defendant existed over Khasra Nos. 771/604/358 abutting to the suit land. The averments made in the plaint were denied.

(ii) During pendency of the suit, the plaintiff placed on record a report of demarcation carried out by the Assistant Collector 2nd Grade on 08.02.2011. The demarcation report stated that the defendant had encroached over Khasra No. 605/533 (suit land) to the extent of 0-0-6 Biswansi.

(iii) Learned Trial Court appointed a Local Commissioner on 31.03.2012 to demarcate the suit land. In compliance to the order, the Local Commissioner, i.e. Tehsildar, Nahan, submitted the demarcation report dated 23.12.2014 alongwith enclosures. During demarcation, statements of the parties were also recorded. The plaintiff in his statement, inter-alia, stated that he was though satisfied with the demarcation, but at the same time, requested for demarcating the suit land from the backside of defendant’s house. In his report dated 23.12.2014, the Local Commissioner gave reasons for declining such request of the plaintiff and concluded that the defendant had not encroached over the suit land.

(iv) The plaintiff preferred objections to the report of Local Commissioner. The gist of his objections was that:

(a) No pucca points were taken or fixed during demarcation.

(b) No statement regarding pucca points was recorded.

(c) As per report of the Local Commissioner, a Kuhal (narrow water channel) was considered as a pucca point. However, on the spot, no kuhal was in existence.

(d) Kuhal cannot be considered a pucca point as its dimensions vary from place to place.

(e) The plaintiff had requested the Local Commissioner to demarcate the land from old pucca houses. This request went unheeded. Had the demarcation been conducted as requested by the plaintiff, then, the encroachments made by the defendant over the suit land would have figured in the demarcation report.

The plaintiff prayed in these objections for summoning the Local Commissioner for the purpose of his cross-examination and for setting aside the demarcation report.

(v) On considering the objections filed by the plaintiff, learned Trial Court dismissed the same and confirmed the demarcation report of the Local Commissioner vide order dated 27.05.2016. Aggrieved against this order, the petitioners (legal representatives of deceased plaintiff) have preferred instant petition.

4. Contentions:

Shri Karan Singh Kanwar, learned counsel for the petitioners/plaintiff argued that the learned Trial Court fell in error in rejecting the objections filed by the plaintiff without giving due opportunity to the plaintiff to lead evidence. In his objections, the plaintiff had prayed for calling the Local Commissioner for his cross-examination. The prayer was declined. Without giving opportunity to the plaintiff to cross-examine the Local Commissioner, the demarcation report of the Local Commissioner could not be confirmed. Prejudice, therefore, has been caused to the plaintiff because of the impugned order.

Shri Bimal Gupta, learned Senior C