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ARUN MONGA
Phoola Devi @ Phula Devi – Appellant
Versus
Banwari Lal – Respondent
JUDGMENT
Arun Monga, J. (Oral) - Petition herein, inter alia, is for modifying/setting aside order dated 12.07.2022 (Annexure P-3) whereby the application filed petitioner/plaintiff for appointment of Local Commissioner in Civil Suit No.42 of 2019, has been dismissed.
2. Civil Suit in question is for possession and permanent injunction claiming that the plaintiff (petitioner herein) and other co-sharers are owners in exclusive possession of the land in question. Demarcation report dated 21.10.2018 conducted by Kanungo in support of the claim in suit has also been filed. As per the said report, the respondent/defendant has allegedly encroached upon an area measuring 486.8 square yards of the land in question belonging to the petitioner/plaintiff.
3. In the premise, an application for appointment of Local Commissioner to demarcate the area in question was filed by the petitioner (plaintiff). However, vide impugned order application has been rejected. Hence, the instant petition.
4. Heard.
5. While there is no quibble with the view taken by the trial Court that the burden of proving his possession over Rectangle No.10, Killa No.9/1/2 is upon the defendant (respondent herein) and the plaint
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 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.
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.
The burden of proof to establish encroachment lies with the plaintiff, who must prove the encroachment through independent evidence.
The demarcation of land by a Local Commissioner must be carried out strictly in accordance with the instructions of the relevant authorities and land record manuals.
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