JUDGMENT : Ajay Mohan Goel, J. By way of this present appeal, appellant/plaintiff has challenged the judgment and decree passed by the Court of learned Presiding Officer/Additional District Judge, Fast Track Court, Hamirpur, in Civil Appeal No. 21 of 2006 dated 30.05.2007, vide which, learned Appellate Court while dismissing the appeal filed by the present appellant has upheld the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Court No. II, Hamirpur, in Civil Suit No. 329 of 2002 dated 07.11.2005, whereby the suit for permanent prohibitory injunction and mandatory injunction filed by the present appellant was dismissed. 2. This appeal was admitted on 20.06.2008 on the following substantial questions of law:- 1. Whether the findings given by the learned Courts below are perverse, their being either contrary to the evidence on the record or having been based on no material on the record and, as such, the same has resulted into erroneous decision? 2. Whether the learned 1st Appellate Court below has wrongly rejected the application for appointment of Local Commissioner to demarcate the suit land, their being boundary dispute? 3. Brief facts necessary for adjudication of the present appeal are that appellant/plaintiff (hereinafter referred to as the plaintiff) filed a suit for permanent prohibitory injunction and mandatory injunction against present respondent/defendant (hereinafter referred to as the defendant), on the grounds that the suit land comprised in Khata No. 32 min, Khatauni No. 33 min, Khasra No. 304 measuring 4 Kanals 2 Marlas, situated in Tika Punjhali, Tappa Mati-Morian, Tehsil and District Hamirpur, was jointly owned and possessed by the plaintiff and her son Surinder Kumar and defendant was stranger as far as suit land was concerned and was having no right, title and interest over the same. As per the plaintiff, defendant who was a head-strong and quarrelsome person had collected construction material for the purpose of contracting a latrine and to raise a retaining wall on the suit land. As per plaintiff, for this purpose, defendant also forcibly started digging part of the suit land in the last week of December, 2002. As per the plaintiff, defendant who was a head-strong and quarrelsome person had collected construction material for the purpose of contracting a latrine and to raise a retaining wall on the suit land. As per plaintiff, for this purpose, defendant also forcibly started digging part of the suit land in the last week of December, 2002. It was on these basis that the suit was filed by the plaintiff praying for a decree of permanent prohibitory injunction for restraining the defendant from raising construction over the suit land and for mandatory injunction in case the defendant succeeded to raise any construction during the pendency of the suit over the suit land. 4. Claim of the plaintiff was denied by the defendant. In the written statement stand of the defendant was that suit filed by the plaintiff was frivolous and was with malafides as neither any construction had been carried out by the defendant over the suit land nor the defendant proposed to carry out any construction over the same. Defendant denied that any digging had been done on any part of the suit land for the construction of latrine or for raising retaining wall. 5. On the basis of the pleadings of the parties, learned trial Court framed the following issues:- 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for? … OPP 2. Whether the plaintiff is entitled to the relief of mandatory injunction by way of demolition as prayed for? … OPP 3. Whether the plaintiff has no cause of action in the present suit? … OPD 4. Whether the suit is not maintainable in the present form? … OPD 5. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? … OPD 6. Relief. 6. On the basis of material placed on record by the respective parties, learned trial Court returned the following findings to the issues so framed:- Issue No. 1: No. Issue No. 2: No. Issue No. 3: Yes. Issue No. 4: Yes. Issue No. 5: Un-pressed. Relief : The suit of the plaintiff is dismissed as per operative part of the judgment. 7. Issue No. 4: Yes. Issue No. 5: Un-pressed. Relief : The suit of the plaintiff is dismissed as per operative part of the judgment. 7. It was held by learned trial Court that the plaintiff who stepped into the witness box as PW-1 stated that she did not remember the Khasra No. of the suit land and she also admitted in her cross-examination that she had not got the land demarcated before filing the suit. Learned trial Court held that the relief of permanent prohibitory injunction is a discretionary relief and the plaintiff had to prove a right and violation thereon or breach of corresponding duty by the defendant and only then such reliefs can be granted. Learned trial Court further held that in the present case, the plaintiff had failed to prove that defendant violated any right of the plaintiff with respect to the suit land. It was further held by learned trial Court that plaintiff failed to prove that any construction had been carried out by defendant over the land of the plaintiff and no demarcation was on record to support the allegations of the plaintiff. It was further held by learned trial Court that the witnesses of the plaintiff including the plaintiff were not able to prove that defendant had actually carried out construction over the suit land. It was further held by learned trial Court that the plaintiff was also not able to prove that during the pendnecy of the suit defendant had carried any construction or had thrown any material over the land belonging to the plaintiff. On these basis, it was concluded by learned trial Court that the plaintiff was not entitled for relief of permanent prohibitory injunction or mandatory injunction. 8. Feeling aggrieved by the said judgment passed by learned trial Court, plaintiff filed an appeal. 9. Learned Appellate Court vide its judgment dated 30.05.2007 dismissed the appeal so filed by the plaintiff and in its judgment learned Appellate Court held that plaintiff had neither filed any Tatima nor any site plan alongwith the plaint in order to show where and on what portion of the suit land, defendant had raised the alleged construction. 9. Learned Appellate Court vide its judgment dated 30.05.2007 dismissed the appeal so filed by the plaintiff and in its judgment learned Appellate Court held that plaintiff had neither filed any Tatima nor any site plan alongwith the plaint in order to show where and on what portion of the suit land, defendant had raised the alleged construction. Learned Appellate Court held that in fact the claim of plaintiff that defendant had raised construction over the suit land appeared to be hollow as neither she remembered Khasra No. of the suit land nor she had obtained any demarcation of the suit land before filing the suit. Learned Appellate Court also took note of the fact that PW-2 Dharam Singh had clearly stated that the land of the plaintiff was on higher side and that of the defendant was on the lower side and the construction had been raised by the defendant on his own land situated on the lower side. Learned Appellate Court also held that there was also a boundary between the two lands and the latrine constructed by the defendant was on his own land which was below the suit land. Learned Appellate Court also took the note of the fact that it was deposed by DW-1 that he had constructed the latrine on his own land and it was about 10 feet away and about 5 feet below the suit land. It was held by Appellate Court that testimony of the defendant was supported by the statement of Chaumphi Ram DW-2. Learned Appellate Court after perusal of the entire evidence adduced on behalf of both the parties concluded that it was apparent from the record that the plaintiff had failed to prove that defendant had carried out any construction of latrine etc. over the suit land. Learned Appellate Court also held that it was argued by learned counsel for the plaintiff that since it was a boundary dispute, the Court should have appointed a Local Commissioner to ascertain whether any part of the suit land had been encroached by the defendant or not. However, this contention of learned counsel for the plaintiff was not accepted by learned Appellate Court by holding that since plaintiff had neither requested nor moved an application before the trial Court for appointment of any Local Commissioner, as such, appreciation of evidence by learned trial Court could not be faulted with. However, this contention of learned counsel for the plaintiff was not accepted by learned Appellate Court by holding that since plaintiff had neither requested nor moved an application before the trial Court for appointment of any Local Commissioner, as such, appreciation of evidence by learned trial Court could not be faulted with. On these basis, judgment passed by learned trial Court was upheld by learned Appellate Court. 10. Mr. Ramakant Sharma, learned counsel for the appellant has argued that the judgments passed by both learned Courts below were not sustainable in law because both learned Courts below have failed to appreciate that it stood proved from the material produced on record by plaintiff that defendant had in fact carried out construction over the suit land. Mr. Sharma further argued that even otherwise judgments passed by both learned Courts below were not sustainable as it was the onerous duty entrusted upon the Courts below to have had got the suit land demarcated because matter pertained to boundary dispute. According to Mr. Sharma, even if the plaintiff had not moved any application for demarcation of the suit land or appointment of a Local Commissioner in this regard, it was the duty of the Courts below to have had got the suit land demarcated. As per Mr. Sharma, as both learned Courts below had failed to do so, the judgments and decrees passed by Courts below were liable to be set aside on these count alone. 11. On the other hand, Mr. Rajesh Kumar, learned counsel for the respondent, argued that the judgments passed by both learned Courts below could not be faulted with on the grounds raised by the present appellant. It was argued by Mr. Rajesh Kumar that whether or not the defendant had carried out any construction over the suit land was a pure and simple question of fact and as both learned Courts below had concurrently decided this fact against the appellant, there was no occasion for this Court to interfere with the said findings recorded by learned Courts below especially in view of the fact that the appellant was not able to demonstrate from the material on record that the findings so recorded by both learned Courts below were perverse. According to Mr. Rajesh Kumar, there was not even an iota of evidence on record to suggest or substantiate that the defendant had encroached upon the suit land. According to Mr. Rajesh Kumar, there was not even an iota of evidence on record to suggest or substantiate that the defendant had encroached upon the suit land. He further argued that statement of PW-2 as well as statements of defendant’s witnesses proved cogently and convincingly that there was no encroachment over the suit land by the defendant. It was further argued by Mr. Rajesh Kumar that the plaintiff had neither got the suit land demarcated before filing the suit nor any application in this regard was filed for the simple reason that the plaintiff was also aware that no construction of any kind had been carried out by the defendant over the suit land. Accordingly, he prayed that the suit was without any merit and the same should be dismissed. 12. I have heard learned counsel for the parties and have also gone through the records of the case as well as judgments passed by both learned Courts below. 13. In my considered view, the findings which have been returned by both learned Courts below to the effect that plaintiff had not placed any material on record to suggest that any construction had been carried out over the suit land by the defendant cannot be faulted with. It is a matter of record that neither any Tatima of the suit land was filed with plaint nor the suit land was got demarcated by the plaintiff before filing of the suit. It is apparent from the statement of the plaintiff that she was not even aware of Khasra No. of the suit land. Statement of PW-2 Dharam Singh demonstrates that in his cross-examination this witness has admitted that latrine of the defendant has been constructed within his property. Similarly, besides the defendant who entered the witness box as DW-1, Chaumphi Ram DW-2 has also corroborated the version of the defendant that no construction whatsoever had been carried out by the defendant over the suit land. 14. It is a settled principle of law that he who alleges has to prove. 15. In the present case, it was the plaintiff who approached the Court of law praying for a decree of permanent and mandatory injunction on the ground that defendant was threatening to raise construction over her land by raising a retaining wall and constructing a latrine over the suit land. 15. In the present case, it was the plaintiff who approached the Court of law praying for a decree of permanent and mandatory injunction on the ground that defendant was threatening to raise construction over her land by raising a retaining wall and constructing a latrine over the suit land. However, this allegation of the plaintiff against the defendant could not be proved by her. Onus obviously was upon the plaintiff to have had produced on record cogent and reliable evidence from which learned trial Court could have deciphered as to whether or not there was merit in the case of the plaintiff. However, plaintiff miserably failed to discharge the said onus. It is a matter of record that no application for the appointment of a Commissioner to have suit land demarcated, was filed by the plaintiff before learned trial Court. The argument of learned counsel for the appellant that it was the duty of learned trial Court to have had appointed a Commissioner suo motu and have had got the suit land demarcated is without merit. As I have already mentioned above, it is for the party to prove its case and Court is not to collect evidence either for the plaintiff or for the defendant. This Court is not oblivious to the fact that Rule 9 of Order 26 of the Civil Procedure Court envisages issuance of commission to make local investigation. However, the object of this provision is not to collect evidence which can be taken in the Court but the purpose is to obtain such evidence which from its peculiar nature, can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court. The Court obviously can issue local commission suo motu if in the facts and circumstances of the case, it is deemed necessary that a local commission is required for the purpose of adjudication of the case. However, exercise of this power is discretionary. This Court in Bali Ram Vs. Mela Ram and another, AIR 2003 Himachal Pradesh 87, has held:- “13. Rule 9 of Order 26 of the Code of Civil Procedure (hereafter referred to as 'the Code'), empowers the Court to issue commission to make local investigation which may be required for the purpose of elucidating any matter in dispute. This Court in Bali Ram Vs. Mela Ram and another, AIR 2003 Himachal Pradesh 87, has held:- “13. Rule 9 of Order 26 of the Code of Civil Procedure (hereafter referred to as 'the Code'), empowers the Court to issue commission to make local investigation which may be required for the purpose of elucidating any matter in dispute. Though the object of the local investigation is not to collect evidence which can be taken in the Court, but the purpose is to obtain such evidence, which from its peculiar nature, can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court. To issue a commission under Rule 9 of Order 26 of the Code, it is not necessary that either or both the parties must apply for issue of commission. The Court can issue local commission suo motu, if, in the facts and circumstances of the case, it is deemed necessary that a local investigation is required and is proper for the purpose of elucidating any matter in dispute. Though exercise of these powers is discretionary with the Court, but in case the local investigation is requisite and proper in the facts and circumstances of the case, it should be exercised so that a final and just decision is rendered in the case.” 16. Coming back to the facts of the present case, a perusal of the judgment passed by learned trial Court demonstrates that learned trial Court was satisfied on the basis of material on record especially in view of the deposition of PW-2 and defendant’s witnesses that no construction whatsoever had been carried out by the defendant over the suit land. Coming back to the facts of the present case, a perusal of the judgment passed by learned trial Court demonstrates that learned trial Court was satisfied on the basis of material on record especially in view of the deposition of PW-2 and defendant’s witnesses that no construction whatsoever had been carried out by the defendant over the suit land. Therefore, in my considered view, it cannot be said that there was any confusion in the mind of learned trial Court which required appointment of a commission as is envisaged under Order 26 Rule 9 C.P.C. Further, judgment passed by learned Appellate Court also categorically and clearly demonstrates that on the basis of material produced on record as well as on the basis of the findings returned by learned trial Court, learned Appellate Court was convinced that there was no infirmity with the findings returned by learned trial Court and in fact defendant had not carried out any construction over the suit land either by raising a boundary wall or by digging a pit for the construction of latrine. It was on this conviction that learned Appellate Court upheld the findings of learned trial Court and dismissed the appeal filed by the plaintiff. 17. Records of learned Appellate Court demonstrates that appeal against the judgment passed by learned trial Court was filed on 02.06.2006 and the same was decided on 30.05.2007. During the pendency of the said appeal, an application dated 28.05.2007 was filed under Order 26 Rule 9 for the appointment of a Local Commissioner, which application did not find favour by learned Appellate Court vide separate order dated 30.05.2007 on the ground that evidence on record adduced by the parties was sufficient to adjudicate upon the matter in controversy and there was no need to appoint any Local Commissioner. Learned counsel for the plaintiff could not point out any infirmity with said finding. Therefore, in my considered view, there is neither any perversity nor any infirmity with the findings returned by both the learned Courts below while dismissing the suit and appeal of the plaintiff. Substantial questions of law are answered accordingly. 18. In view of my findings returned above, there is no merit in the present appeal and the same is dismissed with costs. Miscellaneous applications pending, if any, also stand disposed of.