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2016 DIGILAW 1190 (HP)

Nagender Pal v. Santu

2016-06-28

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. 1. This petition under Article 227 of the Constitution of India is directed against the order dated 11.4.2016 passed by learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi in Civil Suit No. 34 of 2010 whereby the application filed by petitioners for appointment of Local Commissioner came to be dismissed. 2. The facts giving rise to the instant petition are that the petitioners have filed a suit for possession on the basis of title with regard to the land comprised in Khewat No. 41, Khatauni No. 60, bearing Khasra Nos. 3, 4, 6, 8, 9, 13, 18, 19, 20, 21, 23, 24, 26, 32, 281 and 283, Kitas 16, measuring 22-18-05 bighas, situated in Mauza Dan, Hadbast No.120, Tehsil Chachiot, District Mandi, H.P. alleging therein that this land is jointly owned and possessed by the petitioners and others. The respondents since October, 2009 started causing unlawful interference over the land bearing Khasra Nos. 6, 8 and 9 for the purpose of raising construction of a house on some portion of this land and thereafter raised construction forcibly on some portion of Khasra Nos. 6 and 9 and started cultivating remaining of Khasra Nos. 8 and 9. 3. The respondents filed written statement-cum-counter claim wherein it was alleged that the revenue entry qua Khasra No. 8, measuring 0-1-6 bigha was wrong, illegal and null and void. It was further alleged that there was residential house of the respondents over Khasra Nos. 8 and 11 since the time of their predecessor-in interest. It was also alleged that the petitioners in connivance with the consolidation officers wrongly and illegally got the suit land allotted in their favour. 4. The petitioners had earlier filed an application under Order 26 Rule 9 CPC for the appointment of Local Commissioner, but the same was kept pending and thereafter another application under Section 151 CPC was filed by the petitioners for passing orders on the aforesaid application. 4. The petitioners had earlier filed an application under Order 26 Rule 9 CPC for the appointment of Local Commissioner, but the same was kept pending and thereafter another application under Section 151 CPC was filed by the petitioners for passing orders on the aforesaid application. It was contended that the respondents have forcibly occupied some portion of the suit land and had also raised construction upon it and in order to prove this fact, they had moved an application before the Tehsildar Chachiot at Gohar and the same was forwarded to the Field Kanungo for demarcation of the entire suit land and to supply the spot map of the same, but the Field Kanungo refused to do the same and due to this reason the spot map could not be obtained. 5. The respondents filed reply to this application denying the forcible occupation of the suit land and also questioned the maintainability of the application itself apart from denying all other contents thereof. 6. The learned Court below dismissed this application on two scores: (i) that the petitioners intend to collect evidence in their favour and; (ii) that there was no boundary dispute between the parties as would be evident from the following observations: “….In this case, the applicants have pleaded that they are owners of the suit land however, it is possessed by the respondents. The respondents on the other hand have admitted their possession over the suit land. Demarcation of the suit land was already conducted which has not been set aside by any competent authority. The applicants were relying upon the aforesaid demarcation. In order to support their claim they have examined PW-2 for proving the demarcation report. After conclusion of the evidence the applicants have filed this application on the ground that Local Commissioner who was appointed by A.C. 1st Grade had not conducted the investigation in accordance with law. Thus, the applicants by way of this application under Order 26 Rule 9 of Civil Procedure Code are intending to collect evidence in their favour. Certainly, by way of an application under Order 26 Rule 9 of Civil Procedure Code, this Court cannot allow a party to collect evidence in order to fill up the lacuna. The respondents have already admitted the possession. There is no boundary dispute in between the parties. The suit is based on title. Certainly, by way of an application under Order 26 Rule 9 of Civil Procedure Code, this Court cannot allow a party to collect evidence in order to fill up the lacuna. The respondents have already admitted the possession. There is no boundary dispute in between the parties. The suit is based on title. It is settled that no party can claim appointment of Commission as a right, nor the Court is bound to issue a commission. In the facts and circumstances of the instant case, I am of the view that local investigation is not necessary. Therefore, the application is dismissed. It be registered and tagged with the main case file.” I have heard learned counsel for the parties and gone through the records of the case carefully and meticulously. 7. Before proceeding to decide the case on merits, it is necessary to understand the scope and ambit of Rule 9 Order 26 CPC. This Rule contemplates that in any proceeding, in which the Court is of the opinion that local investigation is requisite or proper for the purpose of elucidating any matter in dispute it may issue a commission to such person as if thinks fit and direct him to make such investigation and to report thereon to the Court. Such report shall form part of the record. The purpose of local investigation is to ascertain, collect or elucidate facts in respect of any matter in dispute after proper scrutiny. 8. ‘Elucidate’ according to Webster’s Dictionary means “to make light or clear, to explain, to remove obscurity from and render intelligible, to illustrate”. 9. According to Chambers Dictionary, ‘elucidate’ means “to make lucid or clear or to throw light upon, to illustrate, making clear, explanatory”. 10. According to the Oxford Dictionary, ‘elucidate’ means “to throw light on, explain” etc. 11. For the purpose of elucidating facts in respect of any matter in dispute means where the circumstances render it expedient in the interest of justice to do so, the Court has power, which is discretionary in nature, to appoint Commissioner for the purpose of ascertaining, to make it clear, intelligible and to throw light upon the matter in issue. However, an application under this rule must be made before the case is closed. The evidence so collected through the Commissioner may be used to elucidate a point which may otherwise be left in doubt or ambiguity on record. However, an application under this rule must be made before the case is closed. The evidence so collected through the Commissioner may be used to elucidate a point which may otherwise be left in doubt or ambiguity on record. Therefore, the Commissioner in effect is a projection of the Court appointed for a particular purpose. So long as the evidence is relevant and if it is not by way of dilatory tactics, the Court may allow a party to adduce evidence. However, such evidence is not binding on the Court and the same is required to be appreciated along with other evidence. It needs to be clarified that it is only on examination of the Commissioner that the report submitted by him would form part of the record and evidence. Here too, the opposite party will have an opportunity to cross-examine the Commissioner. 12. Adverting to the record, it would be noticed that PW-2 Field Kanungo had not demarcated the land bearing Khasra Nos. 6 and 8 which in fact had necessitated the filing of the subsequent application for appointment of Local Commissioner. Thus, it could not be held that this application had been moved with the intention of collecting evidence particularly when the learned Court below vide order dated 9.4.2013 had itself kept pending the earlier application moved by the petitioners for appointment of Local Commissioner. It is the Court below which waited for the trial to conclude and not the petitioners as has been wrongly held by the Court below. Therefore, in such circumstances, it could not be said that the filing of the application was with the intent and purpose of gathering evidence. 13. Coming to the question as to whether it was boundary dispute or not. It would be seen that the suit had been filed by the petitioners on the ground that the respondents since October, 2009 had started causing unlawful interference over the suit land comprised in Khasra Nos. 6, 8 and 9 for the purpose of raising construction of a house upon some portion of the land. Therefore, in such circumstances the extent of encroachment obviously could only be proved by the revenue expert. 14. It has to be remembered that the contest is always between the parties, whereas in so far as the Courts are concerned, its quest is to ascertain the truth and strike to prevent miscarriage of justice. Therefore, in such circumstances the extent of encroachment obviously could only be proved by the revenue expert. 14. It has to be remembered that the contest is always between the parties, whereas in so far as the Courts are concerned, its quest is to ascertain the truth and strike to prevent miscarriage of justice. After all, “every trial is the voyage of discovery in which truth is the quest”, which cannot be forgotten in the wake of adhering to the punctilious of Court procedure and technicalities. 15. Viewed thus, the order passed by the learned Court below dated 11.4.2016 cannot be sustained in the eyes of law and is accordingly set-aside. Interim order dated 22.4.2016 is vacated. 16. Before parting, it may be observed that the suit appears to have been filed in the year 2010, therefore, the learned Court below will make all endeavour to decide the same as expeditiously as possible and in no event later than 31st December, 2016. With the aforesaid observations, the petition stands disposed of, so also the pending applications, if any.