CMPMO No. 482 of 2015. Case: Umesh Vs Jagat Ram. Himachal Pradesh High Court

Case NumberCMPMO No. 482 of 2015
Party NameUmesh Vs Jagat Ram
CounselFor Appellant: Ashwani K. Sharma, Senior Advocate and Ishan Thakur, Advocate and For Respondents: Neeraj Gupta and Poonam Gehlot, Advocates
JudgesTarlok Singh Chauhan, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order XXVI Rule 9; Order XXXIX Rules 1, 2, 2A, 6, 7, 8; Constitution of India - Article 227
Judgement DateMarch 29, 2017
CourtHimachal Pradesh High Court

Judgment:

Tarlok Singh Chauhan, J.

  1. This petition under Article 227 of the Constitution of India has been filed against the order passed by the learned trial Court on 21.09.2015, whereby the application filed by the plaintiff/petitioner (hereinafter referred to as 'petitioner') under Order 39 Rule 7 CPC for appointment of Local Commissioner to demarcate the suit land and report the extent of encroachment, has been ordered to be dismissed.

  2. The facts, in brief, are that the petitioner has filed a suit seeking permanent prohibitory and mandatory injunction restraining the respondents-defendants (hereinafter referred to as 'respondents), wherein it is alleged against the respondents that land comprised in Khewat No. 329/315, Khatauni No. 670/652 bearing Khasra No. 1527/421, land measuring 00-00-95 hectare is exclusively owned and possessed by the petitioner alongwith other co-sharers and the respondents are stranger to this land.

  3. It is further averred that the respondents have started causing interference in the suit land, hence, the suit.

  4. Alongwith the suit, the petitioner also moved an application under Order 39 Rules 1 and 2 CPC seeking an order of temporary injunction against the respondents, which has been passed in his favour by the learned trial Court on 9.1.2014, but is alleged to have been violated by the respondents taking the advantage of the fact that the petitioner was an absentee and had been serving at various places on account of his being employed in the armed service. It is alleged that the respondents have continued to raise construction over the suit land by initially raising pillars and thereafter putting slabs over the same. Though separate proceedings under Order 39 Rule 2A have already been initiated against the respondents by the petitioner, yet in order to ascertain with exactitude the extent of encroachment made forcibly by the respondents over a portion of the suit land, it was necessary to appoint a commissioner and accordingly an application under Order 39 Rule 7 CPC was filed before the learned trial Court, however, the same has been ordered to be dismissed vide the impugned order.

  5. The respondents have filed reply to the said application questioning therein the very maintainability of the application. On merit, it is submitted that construction on the part of Khasra No. 421, which was owned by the petitioner had been raised by them during the year 1970 that too with the consent of its previous owner Shri Nazir Mohd. and no construction thereafter has been raised by them.

  6. It is vehemently argued by the learned counsel for the petitioner that the order passed by the learned trial Court suffers from material irregularities and, therefore, deserves to be set aside.

  7. Whereas, Shri Neeraj Gupta, learned counsel for the respondents would contend that the order has been passed within the four corners of law...

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