JUDGMENT : Sandeep Sharma, J. 1. By way of instant petition under Article 227 of the Constitution of India, prayer has been made for quashing and setting aside order dated 10.3.2017 passed by Civil Judge (Senior Division), Court No. 1, Hamirpur, Himachal Pradesh in Civil Suit No. 139/2012, whereby application having been filed by petitioner under Order 26 Rule 9 CPC, for appointment of local commissioner to demarcate suit property as well as adjoining path constructed by municipal Committee, Hamirpur, came to be dismissed. 2. Briefly stated the facts, as emerge from the record are that petitioner-plaintiff, filed a civil suit bearing No. 139/2012 for permanent prohibitory injunction, restraining the respondent-defendant from raising any construction or laying passage in suit land and in the alternative sought decree for mandatory injunction directing defendant to restore suit land to its original position, in case it succeeds in constructing passage, during the pendency of the suit. 3. It emerges from the record that plaintiff preferred an application under Order 26 Rule 9 CPC read with Section 151 CPC for appointment of local commissioner to demarcate suit land and submit its report with regard to nature and extent of encroachment, if any, over the land in dispute and existence of passage. Aforesaid application was contested by the defendant and learned Civil Judge (Senior Division), Court No. 1, vide order dated 6.4.2015, dismissed the application terming the same to be premature. 4. Perusal of order dated 6.4.2015 i.e. annexure P-3 clearly suggests that plaintiff specifically averred in the application that defendant is forcibly trying to construct passage over the suit land, while laying down passage in Khasra Nos. 1136 and 1139. Plaintiff, specifically submitted in the application that issue No. 2 as framed by the Court is with regard to mandatory injunction and as such, in order to ascertain encroachment done by the defendant over the suit land, some local commissioner is required to be appointed to demarcate the suit land, so that controversy at hand is decided for all times to come. Further perusal of order dated 6.4.2015, suggests that learned trial Court, taking note of the specific prayer/averments having been made by the plaintiff in the plaint that “in case during the pendency of the suit, defendant/respondent succeeds in constructing passage through suit land, then a decree for mandatory injunction be passed” came to the conclusion that no such construction has been raised by the defendant over any portion of suit land and as such, there is no question of ascertaining nature and extent of the encroachment of defendant over the suit land. Learned Court below, vide aforesaid order, dismissed the application having been preferred by the plaintiff, being premature. While dismissing the aforesaid application, trial Court further observed that in order to prove interference, if any, by the defendant over the suit land, plaintiff is required to lead evidence rather than taking help of the court in creating evidence in its favour. 5. It is not in dispute that aforesaid order was not challenged by plaintiff in any court of law, rather, same was accepted without any demur. Thereafter, plaintiff, vide fresh application being CMA No. 232/2016, again moved the Court under Order 26 Rule 9 CPC, for appointment of local commission to demarcate the suit land. 6. It is also not in dispute that aforesaid application came to be filed after closure of evidence of both the parties. 7. Defendant, while opposing aforesaid prayer having been made by the plaintiff for appointment of local commissioner only contended before the learned Court below that onus to prove issue is/was upon the parties as such, court can not create evidence for either of the parties, by ordering for appointment of local commissioner. 8. Learned Court below, vide order dated 10.3.2017, dismissed the application having been preferred by the plaintiff by concluding that sufficient and reasonable opportunities were granted to the plaintiff and court, in no manner, can assist plaintiff in proving encroachment, if any, on the suit land by the defendant/municipal committee. In the aforesaid background, plaintiff has come before this Court, by way of instant proceedings. 9. Despite opportunity, no reply has been filed on behalf of the respondents. 10. Mr. In the aforesaid background, plaintiff has come before this Court, by way of instant proceedings. 9. Despite opportunity, no reply has been filed on behalf of the respondents. 10. Mr. Anil God, learned counsel representing the defendant, while inviting attention of this Court to earlier order dated 6.4.2015, passed by learned Court below, contended that since earlier application having been filed by plaintiff was rejected by the Court below, vide order dated 6.4.2015, specifically holding therein that contents of plaint show that no construction is/has been raised by defendant over any portion of suit land, and as such, there is/was no question of ascertaining nature and extent of encroachment, if any, by the defendant over the suit land. Mr. God, further contended that at no point of time, challenge, if any, was laid to the aforesaid order passed by learned trial Court, as such, no fresh application could be filed by plaintiff that too at the stage of hearing. 11. I have heard the learned counsel for the parties and gone through the record carefully. 12. It is not in dispute that the plaintiff had filed an application under Order 26 Rule 9 CPC for appointment of local commissioner, immediately after framing of issues. Aforesaid application having been filed by the plaintiff was dismissed by the Court, on the ground that it is evident from the averments contained in the plaint that no encroachment is made on the suit land by the defendant-Committee and as such there is no occasion for the Court to appoint local commissioner to ascertain the extent and nature of encroachment, if any, over the suit land by the defendant. It is also not in dispute that aforesaid order was not laid challenge by the plaintiff in any higher court of law, as such, it had attained finality. Subsequently, fresh application under Order 26 Rule 9 CPC came to be filed on behalf of the plaintiff for appointment of local commissioner to prove the factum of encroachment over the suit land by the defendants, which was again dismissed by the Court below on the ground that onus was upon the plaintiff to prove his case by leading cogent and convincing evidence and Court cannot assist in creating evidence in favour of plaintiff. Averments contained in the application as well as orders passed on the application having been filed by the plaintiff for appointment of local commissioner by the Court, clearly suggests that there is boundary dispute inter se parties and no harm would have been caused to either of the parties, if Court had acceded to the request of the plaintiff for appointment of local commissioner to ascertain nature and extent of encroachment over the suit land by the defendant, who, admittedly constructed passage adjoining to the suit land. 13. Though, allegation of encroachment over suit land, by defendant was specifically denied by the defendant, but it clearly emerges from impugned order that one Premi Devi was found to have encroached upon the land and accordingly, she was served with a notice. 14. Learned Court below has erred in concluding that plaintiff despite sufficient opportunities, failed to prove encroachment. Learned Court below while rejecting application preferred by the plaintiff, failed to take note of defence of the defendant, whereby defendant specifically stated that no interference is being caused over the suit land of plaintiff and passage belonging to Municipal Committee passes through Khasra Nos. 1136 and 1139. Plaintiff has specifically averred in the application that suit land i.e. Khasra Nos. 1138 and 1140 are possessed and owned by him and adjoining to it, there is a passage belonging to Municipal Committee, being Khasra Nos. 1136 and 1139, but said passage has been encroached upon and thereafter, Municipal Committee passage has been diverted towards land of the plaintiff. Perusal of pleadings adduced on record by respective parties clearly suggests that dispute, if any, inter se parties is a boundary dispute. 15. It is well settled that Order 26 Rule 9 CPC also casts duty upon the Courts to appoint local commission, if necessary, for proper adjudication of the case, especially where there is boundary dispute. 16. This court can not lose site of the fact that application, at the first instance was filed by plaintiff immediately after framing of issues for appointment of local commissioner to prove encroachment, if any, on the suit land, by the defendants, but at that stage, same was dismissed by the Court below on a very flimsy ground. 17. Consequently, in view of above, present petition is allowed. Order dated 10.3.2017, passed by Civil Judge (Senior Division), Court No. 1, Hamirpur, HP is set aside. 17. Consequently, in view of above, present petition is allowed. Order dated 10.3.2017, passed by Civil Judge (Senior Division), Court No. 1, Hamirpur, HP is set aside. Learned Court below is directed to appoint local commissioner, to visit suit land, to ascertain nature and extent of encroachment over municipal path as well as suit land, if any, by either of parties. Parties, through their counsel, are directed to appear before the learned trial Court on 30th August, 2017. 18. Pending applications, if any, are disposed of.