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2019 DIGILAW 776 (HP)

Ram Nath v. Kuldeep Singh

2019-06-25

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, Judge (Oral) By way of this petition filed under Article 227 of the Constitution of India, a prayer has been made for setting aside order dated 30.03.2019, passed by the Court of learned Senior Civil Judge, Court No. 1, Una, District Una, H.P. in Case Reg. No. 1361 of 2013, vide which an application filed by the present petitioners, who are the plaintiffs before the learned trial Court, under Order 26, Rule 9 of the Code of Civil Procedure (hereinafter referred to as the =Code'), has been dismissed. 2. Brief facts necessary for adjudication of the present case are that petitioners (hereinafter referred to as the =plaintiffs') have filed a suit under Section 5 of the Specific Relief Act for possession by way of removal of superstructure of any kind raised by the defendants over the suit land. The suit was filed in the year 2010. It is not in dispute that evidence of the defendants stood recorded on 10.04.2018 and thereafter, the matter was listed for arguments for 15.05.2018. On 15.05.2018, time was prayed for arguments and the case was accordingly ordered to be listed for arguments on 28.07.2018. On the said date, matter was partly heard and adjourned for remaining arguments for 04.08.2018. 3. On 04.08.2018, an application was filed by the present petitioner before the learned Trial Court with the prayer that a Revenue Expert be appointed with the direction to visit the spot and report whether the site =A B C D E F G H' as shown red in colour in the site plan was part and parcel of Khasra Nos. 4329/1, 4331, 4332/1, 4333/1 for proper adjudication of the case. It was mentioned in the application by the applicants/plaintiffs that they had filed a suit for possession of site =A B C D E F G H' with the averments that defendants had wrongly and illegally usurped the possession of the aforesaid site from the plaintiffs. Learned trial Court had framed an issue to the effect that ?Whether the plaintiffs are entitled for the relief of possession as prayed? OPP?. As per plaintiffs, onus to prove the issue was upon them but the same could not be discharged unless a Revenue Expert was appointed by the Court to find out whether the site in issue was part and parcel of Khasra Nos. 4329/1, 4331, 4332/1, 4333/1. OPP?. As per plaintiffs, onus to prove the issue was upon them but the same could not be discharged unless a Revenue Expert was appointed by the Court to find out whether the site in issue was part and parcel of Khasra Nos. 4329/1, 4331, 4332/1, 4333/1. It was further mentioned in the application that oral evidence touching the aforesaid Issue would not be sufficient to decide the real controversy between the parties as there was boundary dispute between the parties. 4. The application was contested by the non-applicants/defendants inter alia on the ground that the Issue per se did not involve evidence of Revenue Expert as plaintiffs had not taken any initiative to lead any cogent evidence in support of the said Issue. 5. Learned trial Court vide order dated 30.03.2019, has dismissed the application. While doing so, learned trial Court has held that the suit was filed by the plaintiffs for possession by way of removal of superstructure raised by the defendants. Thus, first of all, onus was upon the plaintiffs to prove as to how plaintiffs had concluded that portion =ABCD', as comprised in the suit land, stood encroached upon by the defendants, for which relief of possession was sought. It held that rather it imbibed the knowledge upon their part of the delineation of boundaries of the suit property being well defined since there is specific mention of =ABCD' point in it. Learned trial Court also held that Court cannot collect evidence for any party thereby lending a helping hand and assistance in proving its case. It held that matter may be different where the parties are adjoining land holders and share the boundary, however, in order to decide the correct delineation, the Court deems that no amount of other documentary and oral evidence will suffice in proving the plea of interference. Learned Court also held that relief of possession is sought only if the applicant is sure of the encroachment made by the other party over the suit land with specific categorical delineation, lest the entire case of the applicant will fall on its own legs. On these bases, learned Court concluded that the application could not be allowed since it would amount assisting the plaintiffs in taking possession of the property with the assistance of the Court, which otherwise has to be independently done by the plaintiffs. 6. On these bases, learned Court concluded that the application could not be allowed since it would amount assisting the plaintiffs in taking possession of the property with the assistance of the Court, which otherwise has to be independently done by the plaintiffs. 6. Feeling aggrieved, the petitioners have filed this petition. 7. I have heard learned Counsel for the petitioners and gone through the record of the case as also the impugned order. 8. Mr. Dheeraj K. Vashisht, learned Counsel for the petitioners has strenuously argued that the impugned order is not sustainable in the eyes of law as the plaintiffs have no other recourse but to approach the Court under the provisions of Order 26, Rule 9 of the Civil Procedure Code, to substantiate the factum of the suit land having been encroached upon by the defendants. He has further argued that while dismissing the application, learned Trial Court has erred in not appreciating that earlier in CMPMO No. 130 of 2015 filed by the petitioners before this Court (High Court), this Court vide order dated 30.08.2016 had permitted the petitioners to withdraw the same with liberty to file the same after the evidence of the parties is recorded. 9. Having heard learned Counsel for the petitioners, in my considered view, there is no infirmity with the order impugned. 10. It is settled principle of law that he who alleges has to prove. As it is the plaintiffs who have approached the Court praying for a decree of possession through removal of superstructure raised by the defendants upon the suit land with the allegation that the suit land stood encroached upon by the defendants, but obvious, onus to prove the same is upon the plaintiffs. 11. In the present case, the suit was filed in the year 2010. As I have already stated above that after recording the statements of the defendants' witnesses, their evidence was closed on 10.04.2018. 12. The Issue in support of which the application was filed under Order 26, Rule 9 of the Code reads as under:- ?Whether the plaintiffs are entitled for relief of possession as prayed ? OPP ? As I have already stated above that after recording the statements of the defendants' witnesses, their evidence was closed on 10.04.2018. 12. The Issue in support of which the application was filed under Order 26, Rule 9 of the Code reads as under:- ?Whether the plaintiffs are entitled for relief of possession as prayed ? OPP ? In order to succeed in establishing this issue but obvious plaintiffs have to lead cogent evidence to demonstrate that the plaintiffs have some title over the suit land and the defendants are strangers to the suit land have illegally dispossessed the plaintiffs from the suit land. 13. Order 26, Rule 9 of the Code of Civil Procedure is not a panacea, which can be used by a litigant as a tool whenever litigant feels that it is not in a position to prove its case. 14. Order 26, Rule 9 of the Code inter alia provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to such investigation and to report thereon to the Court. 15. In my considered view, primarily whenever any order is passed, under Rule 9 of Order 26 of the Code, the satisfaction has to be of the Court as to whether local investigation for the purpose of elucidating any matter in dispute is necessary or not. This satisfaction cannot be of the plaintiffs or defendants. The plaintiff or the defendant has to stand on its own legs and provisions of Order 26, Rule 9 of the Code cannot be used to garner or gather evidence for them through the Court process. This is exactly what has been held by the learned Court below by way of the impugned order. Learned Court has held and rightly so that onus is upon the plaintiffs to prove their case and the Court cannot lend a helping hand and assist the plaintiffs to prove their case. These findings returned by the learned Court below cannot be said to be illegal as they are in consonance with the spirit of law with regard to the interpretation of Order 26, Rule 9 of the Civil Procedure Code. These findings returned by the learned Court below cannot be said to be illegal as they are in consonance with the spirit of law with regard to the interpretation of Order 26, Rule 9 of the Civil Procedure Code. Plaintiffs cannot be permitted to a local commissioner appointed simply because they have not been able to lead cogent evidence to prove their case. That is not the intent of Order 26, rule 9 of the Code. In view of above discussion, as this Court does not find any merit in the present petition, the same is accordingly dismissed. Pending miscellaneous application(s), if any, also stands disposed of. No orders as to costs.