Dismissed

Krishan Lal v. Dogar Dass Sachdeva Trust

Punjab & Haryana HC5 Sept 2014CR/1317/2013

Case brief

AI extract

What is this about?

Revision petition under Article 226 seeking setting aside of an order allowing a second application for appointment of a Local Commissioner in a civil suit regarding property encroachment. The revision was dismissed as the trial Court correctly found that fresh measurement was essential.

What did the court decide?

Revision petition dismissed with no merit found in the case.

Krishan Lal Vs Dogar Dass Sachdeva Trust — Property and Title | Punjab & Haryana HC (2014)

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232

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.1317 of 2013 (O&M) Date of decision: September 05, 2014

Krishan Lal

...Petitioner

Versus

Dogar Dass Sachdeva Trust and others

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...Respondents

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CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH

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Present: Mr.Umesh Kumar, Advocate for Mr.Kameshwar Gumber, Advocate for the petitioner.

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Mr.Sandeep Jasuja, Advocate for respondent No.1.

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Service of respondents No.2 and 3 dispensed with vide order dated 19.08.2013.

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INDERJIT SINGH, J.

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Petitioner Krishan Lal has filed this revision petition against Dogar Dass Sachdeva Trust and other respondents under Article 227 of the Constitution of India for setting aside the impugned order dated 27.10.2012 passed by learned Civil Judge (Junior Division), Fazilka, whereby the second application moved by the respondent-plaintiff for appointment of Local Commissioner was allowed.

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Notice of motion was issued and respondent No.1 appeared through its counsel and contested the petition.

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I have heard learned counsel for the parties and have

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VINEET GULATI 2014.09.17 10:06 I attest to the accuracy and authenticity of this document Chandigarh

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CR No.1317 of 2013

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gone through the record as well as the impugned order.

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From the record, I find that Dogar Dass Sachdeva Trust plaintiff filed a suit against Krishan Lal and other defendants for permanent injunction restraining defendants No.1 and 2 from making over any construction over the portion coloured red as shown in attached site plan as the said portion has been illegally encroached upon by defendants No.1 and 2 in connivance with defendant No.3 and further restraining defendant No.1 from placing any girder or RCC lentil over the portion DEF forcibly, illegally and for mandatory injunction directing the defendants to remove the wall from the present portion AB to AC and DEF to GH as the said wall has been constructed by defendants No.1 and 2 in connivance of officials of defendant No.3 and defendant No.2, who is in unauthorized occupation/possession of the building owned by Dogar Dass Sachdeva Trust. The plaintiff filed application for appointment of a building expert/draftsman as Local Commissioner with a direction to report after measurement of the property of Dogar Dass Sachdeva Trust mentioned in para No.2 of the plaint as well as the property of defendant No.1 adjoining the suit property as shown in the site plan attached with the plaint for the proper adjudication of the real controversy. It is also stated that the controversy can be resolved only if the exact measurement of the property is before the Court relating to both the parties and the said measurement should be taken by draftsman/building expert appointed as Local Commissioner by the Court. Respondent/defendant No.1 took preliminary objection to the

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VINEET GULATI 2014.09.17 10:06 I attest to the accuracy and authenticity of this document Chandigarh

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CR No.1317 of 2013

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effect that the plaintiff has already taken permission by moving application for appointment of Local Commissioner. Sh.Krishan Gopal Sain was appointed as Local Commissioner and detailed report regarding actual and factual position existing at the spot has been submitted. So, in the presence of earlier report, second Local Commissioner cannot be appointed.

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Learned Civil Judge (Junior Division), Fazilka, after hearing both the parties allowed this application vide impugned order dated 27.10.2012 by holding that the appointment of some Building Expert as Local Commissioner is very much essential and no prejudice is going to be caused to the other party if application is allowed. Therefore, Sh.Hardeep Singh Dhaliwal, Advocate was appointed as Local Commissioner with a direction to visit the disputed site along with Draftsman and a Photographer and to make a report after measurement of the property of plaintiff as well as of defendant No.1. He was also directed to prepare a site plan and take photographs of the disputed property and report regarding the actual and factual position at the spot.

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The perusal of the record shows that as the suit pertains to the encroachment of the property, therefore, measurement of the property is necessary and will facilitate determination of dispute between the parties substantially. The earlier appointed Local Commissioner has not demarcated the property nor he has taken the photographs whereas the present Local Commissioner will visit the site along with Draftsman and Photographer and will prepare site plan

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VINEET GULATI 2014.09.17 10:06 I attest to the accuracy and authenticity of this document Chandigarh

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CR No.1317 of 2013

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after measurement of the property and photographer will take photographs. Therefore, appointment of Local Commissioner is necessary for adjudication of the rights of the parties. The mere fact that earlier Local Commissioner was appointed, is no bar for appointment of fresh Local Commissioner, specially when the trial Court feels that it is necessary for the just decision of the case.

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In view of the above discussion, I find that the impugned order dated 27.10.2012 passed by learned Civil Judge (Junior Division), Fazilka, is correct and as per law and does not require any interference from this Court.

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Therefore, finding no merit in the present revision petition,

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the same is dismissed.

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September 05, 2014 (INDERJIT SINGH) Vgulati JUDGE

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VINEET GULATI 2014.09.17 10:06 I attest to the accuracy and authenticity of this document Chandigarh

Krishan Lal v. Dogar Dass Sachdeva Trust

Case brief

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Krishan Lal v. Dogar Dass Sachdeva Trust

Case brief

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