- (1.) Decree dated 13.3.2002 is under execution. During the course of execution proceedings, local commissioner was appointed for demarcation of the land. Plaintiffs, petitioners herein, even at that time had challenged order dated 11.5.2012 vide which Naib Tehsildar, Gurgaon was appointed as local commissioner to demarcate the land to get the construction removed by police help, if so required. In fact, local commissioner was appointed to ensure that the petitioners herein, who were raising construction within their land should not encroach upon the rasta.
(2.) The petitioners had filed an application for recall of the order which was dismissed by the executing court on 5.6.2012. Order of appointment of local commissioner of 11.5.2012 and of dismissal of the application for recall of the said order of 5.6.2012 passed by the executing court were challenged in this court by way of CR No.3937 of 2012. Dispute is with regard to khasra No.1779 and 1780. This Court vide order dated 11.9.2013 had found impugned orders of the executing court to be valid and legal whereas the revision petition of the present petitioners was found to be meritless and was dismissed. Relevant portion of the order of this Court of 11.9.2013 for ready reference is reproduced as below:- "Wall CDE, constructed by the petitioners was not accepted to be within their land. It was held in judgment Annexure P-3 that the petitioners were not entitled to raise the said wall. Moreover, the instant suit of the petitioners was not decreed with reference to the said demarcation report. The petitioners, in their instant suit, had also depicted their property by letters ABCDE in site plan (Annexure-A) attached with the plaint. However, the suit was also not decreed with reference to the property so depicted in the said site plan. On the contrary, as per judgment and decree of the lower appellate court, the suit was decreed with reference to property bearing khasra nos.1779 and 1780, as extracted hereinbefore. Consequently, the local commissioner has been rightly appointed to demarcate the said property of plaintiffs bearing khasra nos. 1779 and 1780 so as to permit the petitioners to raise construction within the said property and also to ensure that the petitioners do not raise any construction outside the said property. It may be mentioned that in addition to the passage, for demarcation whereof, reference has been made to judgment (Annexure P-1) in the previous litigation, there is also some other vacant land belonging to neither the petitioners nor the respondents and both the parties have been restrained from raising any construction or making any encroachment on the said vacant land existing between the properties of the parties. Consequently, mere demarcation of the passage in the previous litigation is not sufficient to execute the instant decree because there is also some other vacant land in addition to the passage, over which neither party has any right. Consequently, petitioners have to be confined to their land bearing khasra nos. 1779 and 1780 and this can be done only by demarcation of the said khasra numbers. In view of the aforesaid, there was no option with the executing court, but to appoint the local commissioner for demarcation of the petitioners' land bearing khasra nos. 1779 and 1780. There is, therefore, no infirmity, much less perversity, illegality or jurisdictional error in the impugned order Annexure P-7, passed by the executing court or in order Annexure P-9, thereby declining to recall order Annexure P-7. The instant revision petition is thus meritless and is accordingly dismissed."
(3.) When the report of the local commissioner furnished by him on 6.2.2014 was being considered by the executing court, certain missing links were found therein resulting in passing of order dated 7.5.2014 by the executing court which reads as under:- "On notice, Naib Tehsildar, Gurgaon appeared before the court. He was asked to clarify the report as he has not clearly demarcated the nos.1779 and 1780. Whereupon he suffered a statement that 20 days time may kindly be given for submitting fresh report. In view of the same the case is adjourned to 30/05/2014 for submission of fresh report.";