A.N. JINDAL, J. -This petition has arisen out of the order dated 8.3.2010 passed by the Additional District Judge, Sangrur, allowing the application filed by the applicant-defendant No.3 for appointment of the Local Commissioner with a direction to conduct demarcation of the land in dispute and to find out if any construction/ houses are existing thereon.

2. The factual background of the case is that the civil suit No.206 of 12.6.1981 was filed by the Bassi Arakh Scheduled Caste Cooperative Land Owning Society Limited against the defendant Teja Singh and others for seeking permanent injunction restraining the defendants from dispossessing the society from the land measuring 12 kanals 10 marlas as fully detailed in the head note of the plaint. After both the parties led evidence, the said suit was decreed by the trial court on 17.4.1982. The appeal against the said order was filed which was also dismissed on 8.2.1983. The defendants filed the Regular Second Appeal in the year 1983 which was accepted and the case was remanded back on 11.5.2005 with the following observations:

“.... In view of the above, since certain material documents have not been taken into account by the courts below, the findings recorded by the courts below are vitiated. Counsel for the parties seek opportunity to produce more documentary evidence. Applications for additional evidence have been filed along with some documents. Instead of re-appreciating the evidence in second appeal, it will be desirable that the matter is decided by the Trial Court again after taking into account the entire material on the record and giving one opportunity each to the parties to lead any additional evidence at their own responsibility.

May 11, 2005 Sd/- Judge”

3. After remand, the plaintiff society moved an application for amendment of the plaint which was dismissed by the trial court on 3.8.2005 and the revision petition No.4172 of 2005 filed by the plaintiff-society was dismissed as withdrawn on 23.8.2005.

4. Learned Civil Judge after hearing learned counsel for both the parties again decreed the suit of the plaintiff on 23.8.2007. However, during the pendency of the appeal, the defendant Atma Singh moved an application on 5.10.2007 for the appointment of the Local Commissioner in order to ascertain the actual position at the spot regarding the suit property.

5. Notice of the application was issued and the case was adjourned for 13.11.2007 for consideration. Without getting decision on the application, the appellant moved another application on 22.2.2010 for appointment of the Local Commissioner while concealing the earlier application which was accepted by the court and Local Commissioner was appointed for demarcation of the land and to find out if any construction has been raised.

6. Reply to the application was filed, wherein it was submitted that the defendant Atma Singh had concealed the material facts. The trial court had also dismissed the application for appointment of the Local Commissioner on 13.4.2007. The application filed by him earlier, before the Appellate Court has also not been decided so far. It was also urged that this application filed after 24 years of the suit is misconceived and has been filed just to delay and frustrate the decree. It was also submitted that there is no plea in the written statement with regard to existence of the construction in the land in dispute, therefore, now no amount of evidence could be taken into consideration beyond pleadings.

7. However, the first appellate court allowed this application, hence this petition. Arguments heard.

8. Learned counsel for the petitioner has submitted that as a matter of fact the application for appointment of the Local Commissioner is strictly against the directions issued in the remand order. The remand order required the trial court to provide one opportunity to each party to lead evidence and decide the case afresh. The first appellate court never kept the issue open with regard t