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2016 DIGILAW 1039 (HP)

Liaquat Ali v. Amir Mohammad

2016-06-03

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Mr. Tarlok Singh Chauhan, J. (Oral) This petition under Article 227 of the Constitution of India takes exception to the order dated 23.4.2016 passed by learned Civil Judge (Jr. Division), Court No. 2, Amb, District Una, HP, whereby it dismissed the application filed by the petitioner for appointment of Local Commissioner. 2. It is not in dispute that the application for appointment of Local Commissioner was filed only after both the parties had led their evidence with specific prayer contained therein that "some revenue expert may kindly be appointed as Local Commissioner to carry out measurement of the suit passage, as fully detailed in the head note of the plaint and to ascertain the factum of encroachment/obstruction over the suit land in the interest of justice." 3. Learned trial court dismissed the application by assigning the following reasons: "It was laid down by Hon'ble High Court in Divakar Dutt v. Ranjit Singh 1997 (1) SLJ 242 that when any suit has been filed on the premise that respondent has made encroachment, recourse cannot be held to be appointment of local commissioner for demarcating the suit land and it is for the applicant to establish this fact by leading independent evidence. Similar is the judgment in Jeet Ram v. Sita Ram, 2002 HLJ 1173 . Therefore, in view of this binding precedent, local commissioner cannot be appointed and it is for the applicant to establish the claim of encroachment by leading independent evidence. Otherwise also, the local commissioner cannot be appointed for the collection of evidence and for determine the encroachment made by the respondent and if court appoints the local commissioner in the present case, then it would amount to collection of evidence with the aid of court which cannot be accepted. References be made to Institute of Engineers v. Vishnu Pada, AIR 1978 Cal 296 ." 4. Petitioner has assailed the aforesaid order on various grounds taken in the petition. Before proceeding to the merits of the matter, it needs to be reiterated that the object of local investigation is not to collect evidence, but to obtain such material, which from its peculiar nature, can be had only at the spot. The object of Order 29, Rule 9 CPC is not to assist a party to collect evidence. 5. Before proceeding to the merits of the matter, it needs to be reiterated that the object of local investigation is not to collect evidence, but to obtain such material, which from its peculiar nature, can be had only at the spot. The object of Order 29, Rule 9 CPC is not to assist a party to collect evidence. 5. What is the measurement of the suit passage and whether the same has been obstructed or encroached upon are matters which were required to be proved by the petitioner by leading cogent and convincing evidence to this effect and, therefore, recourse to the appointment of Local commissioner for demarcating the suit land at this stage is impermissible as both the parties have led their evidence. Obviously the application now preferred by the petitioner is mischievous as the petitioner wants the court to collect evidence for him through the Local commissioner. 6. Having said so, the order passed by the learned court below cannot be faulted with and therefore, the same does not suffer from any illegality, irregularity much less perversity. Accordingly, there is no merit in this petition and the same is dismissed in limine, so also the pending application, if any.