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2018 DIGILAW 575 (HP)

Uttam Chand v. Dharam Pal

2018-04-07

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —Cmp No. 9059 of 2017 In view of the averments contained in the application which is otherwise duly supported by the affidavit, the same is allowed and order dated 09.10.2017 is recalled and the petition is ordered to be restored to its original number. Application stands disposed of. CMPMO No. 338 of 2017 2. This petition under Article 227 of the Constitution of India takes exception to the order dated 21.07.2017 passed by the learned Civil Judge (Junior Division) , Karsog, District Mandi H.P. in C.M.A. No. 67 of 2017 in Civil Suit No. 28 of 2014, whereby he dismissed the application filed by the petitioner/defendant for appointment of Local Commissioner. 3. The respondent/plaintiff filed a suit for permanent prohibitory injunction against the petitioner/defendant for restraining him from raising construction over the suit land comprised in Khata No. 27/52, Kita 2, i.e., Khasra No. 1576/303, measuring 00-01-17 bighas and Khata Khatauni No. 1577/303, measuring 00-03-18 bigha. It was averred in the application that the petitioner/defendant was adjoining owner and in possession of land comprised in Khata Khatauni No. 82/140, Khasra No. 1578/303, measuring 00-4-02 bigha. 4. It was further averred that the land of both the parties had already been demarcated by the Kanungo and Patwari but no encroachment was found. It was during the course of plaintiff''s evidence, while examining Sh. Dila Ram, official Clerk, Tehsil Office Karsog, who had brought the original record of demarcation report Ex.PW3/A and thereafter the testimony of PW-4 Karam Singh, official witness Kanungo, Tehsil Karsog, both of whom were examined on 15.07.2015, that the petitioner/defendant learnt that in the demarcation report Ex.P3/A, there was no encroachment found on the land of the respondent/plaintiff. 5. It was also averred that on 13.01.2015, the respondent had moved an application under Order 26 Rule 9 read with Section 151 CPC for appointment of Local Commissioner and all of a sudden in the month of July, 2015, he sought permission to tender in evidence one spot map showing encroachment by the petitioner but the same was dismissed on 18.07.2015. However, this order was assailed before this Court in CMPMO No. 336 of 2015, whereby the aforesaid order was quashed and the application was remanded back to the learned trial Court for fresh disposal in accordance with law. However, this order was assailed before this Court in CMPMO No. 336 of 2015, whereby the aforesaid order was quashed and the application was remanded back to the learned trial Court for fresh disposal in accordance with law. It was further directed to place on record the documents i.e. copy of application under Section 107 of the H.P. Land Revenue Act filed before the Assistant Collector 1st Grade for demarcation of the land, copy of demarcation report, copies of the statements recorded during the course of demarcation proceedings in the trial Court by way of supplementary affidavit. 6. It was in compliance to the order of this Court that the respondent filed the necessary documents alongwith demarcation report. 7. The application was resisted and contested by the respondent by filing reply, wherein it was submitted that the demarcation of the land had already been conducted two times. One of the demarcations was conducted prior to the filing of the suit on 24.02.2014, wherein it was found that the suit land was vacant on the spot and no stones were lying there. 8. It was averred that the petitioner had constructed the cemented floor and stone wall on 04.05.2014 over the suit land. The respondent filed an application for appointment of Local Commissioner on 13.01.2015 and another demarcation was conducted on 19.06.2015, which has been confirmed by the AC Ist Grade, Karsog and since the demarcation had already been conducted two times, therefore, there was no justification for appointing a Local Commissioner for the third time. I have heard learned Counsel for the parties and have gone through the material placed on record. 9. Adverting to the facts, it would be noticed that the report of the Local Commissioner is already available on record. A person seeking appointment of Commissioner for local inspection must lay down some foundation for such appointment as it is not as a matter of right or on the mere asking of the party that a Commissioner for local inspection can be appointed. 10. The provisions of Order 26 Rule 9 CPC have to be complied with. It is not the object of the Order 26 Rule 9 CPC to assist the party to collect evidence when party can get the evidence itself. The Court Commissioners are appointed whenever the Court requires their assistance after spot inspection etc. 11. 10. The provisions of Order 26 Rule 9 CPC have to be complied with. It is not the object of the Order 26 Rule 9 CPC to assist the party to collect evidence when party can get the evidence itself. The Court Commissioners are appointed whenever the Court requires their assistance after spot inspection etc. 11. In addition to the above, it has specifically come on record that the property in dispute had already been demarcated, therefore, no useful purpose would be served in getting the suit property inspected by appointing a Commissioner for local investigation. 12. In view of the aforesaid discussion , I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs.