HIGH COURT OF HIMACHAL PRADESH
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V.P.GUPTA,J - -
(1.)In this revision petition the defendant has challenged the order of the Sub Judge, Kangra, dated 28th April, 1981 by which the learned Sub Judge has dismissed the application of the defendant -petitioner for appointment of a local commissioner in a civil suit.
(2.)The brief facts are that Hari Ram plaintiff filed a suit for possession of land bearing khasra No. 492, measuring 0 -02 -36 situate in Mohal Dhar, Mauza Mundla, against Gulaba defendant. It was alleged that the old khasra number of the disputed khasra No. 492 was 540 min, and the plaintiff claiming ownership of khasra No. 492 filed this suit treating the defendant as a trespasser. The suit was contested by the defendant and one of the pleas of the defendant in the written statement is that the old khasra number of 492 was not 540 min. According to the defendants allegations the old khasra number was 541. Upon the pleadings of the parties the court framed the following issues on 6th March, 1979: "1. Whether the suit is with time ? O. P. P.
Whether the plaint is properly valued for the purposes of court -fee and jurisdiction ? O. P. P. Whether the plaintiff is owner in possession of the suit land as alleged ? O. P. P.Whether the defendant is in illegal possession of the suit land ? O. P. P.Whether act and conduct of the plaintiff is bar to the present suit ? O. P. D.Whether the suit is bad for non -joinder of necessary parties ? O. P. D. Whether the defendant has become owner of the suit land by adverse possession ? - O. P. D. Relief." An application under Order 26 Rule 9 of the Civil Procedure Code was filed by the defendant that a local commissioner be appointed who may locate the previous khasra number of the present disputed khasra No. 492, as, according to the defendant, the plaintiff had wrongly described the previous khasra number as 540 instead of 541, This application was rejected by the learned Sub Judge on 2nd June, 1980, on the ground that no issue to that effect had been framed.
(3.)Subsequently, another application was moved by the defendant under Order 14 Rule 5 read with Order 14 Rule 1 of the Civil Procedure Code on 1st November, 1980, praying that an additional issue be framed to the following effect: "If issue No. 3 is proved, whether khasra No. 492 is a part of old khasra Number 541 rain of Jamabandi H 67 and 68 owned and possessed by the defendant, is so, its effect on the present suit." Vide order, dated 16th December, 1980, this application was allowed and an additional issue to the following effect was framed : "3. (a) Whether suit land viz. khasra No. 492 is a part of old khasra No. 541 as alleged and if so its effect ? O. P. D." Thereafter the case was listed for defendants evidence on 5th March, 1981.
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