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TARLOK SINGH CHAUHAN
Parmodh Singh S/o Late Shri Chaini Ram – Appellant
Versus
Madan Lal S/o Late Shri Bhagat Ram – Respondent
ORDER :
1. The plaintiff-petitioner has filed a suit for permanent prohibitory injunction for restraining the defendants, their servants, legal representatives and assignees and other from dispossessing the plaintiff or cutting khair trees and other valuable trees during the pendency of the suit.
2. The plaintiff-petitioner filed an application for appointment of local commissioner on the ground that it was necessary to appoint local commissioner in order to elucidate how much and in what manner the defendants have occupied the suit land. It was further contended that the defendants-respondents had cut the khair trees over the suit land and removed the boundary wall, as a result whereof the applicant had been dispossessed from the portion of the suit land. Thus, in order to know that how much of the area has now been illegally occupied by the respondents-defendants, the appointment of the local commissioner is absolutely necessary.
3. The application so filed by the petitioner-plaintiff was contested by the defendants-respondents and in their reply, it is submitted that they had sought for demarcation and obtained report on 20.07.2003 through Tehsildar which was confirmed by SDM on 05
The burden of proof to establish encroachment lies with the plaintiff, who must prove the encroachment through independent evidence.
The main legal point established in the judgment is that the Court has the jurisdiction to appoint a Local Commissioner for demarcation of land in a boundary dispute, and such appointment does not am....
The prime duty of the Court is to arrive at the truth of the matter and to adjudicate upon the issues brought before it in light of such truth.
The main legal point established is that the appointment of a Local Commissioner under Order XXVI Rule 9 CPC can be allowed in a civil suit to assist in elucidating the matter in dispute without caus....
The plaintiff must provide independent and reliable evidence to prove the encroachment and cannot invoke the provisions of Order 26, Rule 9 of the Code of Civil Procedure to generate evidence.
A petitioner must prove encroachment without court assistance and cannot seek a Local Commissioner for evidence collection without prior boundary demarcation.
The court established that the refusal to appoint a Local Commissioner does not affect the rights of the parties and is not subject to revision.
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