IMPORTANT POINT
Appointment of Local Commissioner – Demarcation is a quasi-judicial function – Unless, demarcation order once passed in accordance with provisions of Land Revenue Act is not set aside or there are allegations of encroachment or change of boundaries after previous demarcation, fresh demarcation is not permissible.

JUDGMENT

Satyen Vaidya, J.—By invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India, the petitioners have assailed order dated 17.10.2020 passed by learned Civil Judge (Jr. Division), Court No.3, Mandi, in Civil Suit No. 516 of 2017, whereby the application of the petitioners herein under Order 26, Rule 9 of the CPC for appointment of the Local Commissioner has been rejected.

2. Respondents No.1 to 6 herein are the plaintiffs before the learned trial Court in Civil Suit No. 516 of 2017. Petitioners herein along with proforma respondents are defendants in the said suit. For the sake of convenience, the parties hereafter shall be referred to the same status as they hold before learned trial court in Civil Suit No. 516 of 2017.

3. Relief prayed in the suit is with respect to land comprised in Khasra No. 600/371/58, measuring 02-10-01 bighas situated in Mohal Bheuli, Tehsil Sadar, District Mandi, H.P. A decree for permanent prohibitory injunction has been prayed in the suit restraining the defendants from causing any interference, stacking any material or raising any construction over the path existing over the suit land i.e. khasra No. 600/371/58. On the application of plaintiffs in the above noted suit, learned trial Court has granted an interim injunction which is subsisting.

4. Another fact which cannot remain unnoticed is that Defendants No.1 to 4 are exclusive owners in possession of land comprised in Khasra No. 599/371/58, which they have got partitioned from the land comprised in khasra No.371/58. The defendant No.1 has also filed a suit for permanent prohibitory injunction and mandatory injunction against the plaintiffs in respect of khasra No.599/371/58 and in that suit also an order of status quo qua nature, title, right, interest, character and possession over Khasra No.599/371/58 had been passed by learned Civil Judge (Junior Division), Court No.3, Mandi, while deciding CMA No. 135/VI of 2018.

5. During the pendency of above suit No. 516 of 2017, defendants filed an application before the learned trial Court under Order 26, Rule 9 of the CPC with a prayer to appoint a Local Commissioner to demarcate the suit land as well as land comprised in Khasra No. 599/371/58. It was averred in the application that the plaintiffs by taking undue advantage of order of police assistance wanted to construct a motorable road on Khasra No. 599/371/58 as well as on khasra No. 600/371/58 forcibly and unlawfully. As per defendant No.1, injunction order passed by the trial Court could be effectively implemented by taking the help of revenue officials. It was also submitted that the demarcation of the suit land and adjoining khasra No. 599/371/58 was required for proper elucidations of the matter in dispute.

6. The plaintiffs resisted the application on the grounds that it was not maintainable. Defendants already had got demarcation in respect of Khasra No. 599/371/58 more than once and they had suppressed this material fact while filing the application under Order 26, Rule 9 of the CPC. It was also submitted that the suit had been filed by the plaintiffs in respect of the path over Khasra No. 600/371/58 and for the adjudication of the dispute, the demarcation was not required.

7. I have heard the learned counsel for the parties and have also gone through the record carefully.

8. The contours of powers of this Court under Article 227 of the Constitution are well defined. In Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003)3 SCC 524, it has been held as under:—

“7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. I