Trial court has dismissed the application of plaintiffpetitioner for demarcation because it is alleged in the plaint itself that demarcation had been obtained by the plaintiff-petitioner before filing the suit. However, counsel for the plaintiff contended that since at the time of earlier demarcation the defendant was absent , it is necessary to obtain demarcation to prove the encroachment of plaintiff's land by the defendant by way of reliable evidence. There is considerable merit in the contention. Plaintiff's prayer for appointment of Local Commissioner cannot be said to be a ploy to collect evidence by the court as observed by the trial court in the impugned order. On the other hand, encroachment of plaintiff's land by defendant can be established only by way of demarcation. It is, therefore, necessary to appoint local commissioner for demarcation. Impugned order of the trial court is, thus, perverse and illegal and suffers from jurisdictional errors because the trial court refused to exercise jurisdiction which vested in it to appoint Local Commissioner.
